M/S KIRORIMAL KASHIRAM MAKTG & AGEN.P.LT v. M/S AHMED OOMERBHOY & ALSO AS AHMAD MILL

1. Whether Reporters of Local papers may be allowed to see the Judgment? No

2. To be referred to the Reporter or not? No

3. Whether the judgment should be reported in the Digest? No HIMA KOHLI, J. (ORAL)

1. The present appeal is directed against the judgment dated 30.4.1999 passed by the learned ADJ in a suit instituted by the appellant against the respondent for amongst other reliefs, permanent injunction relating to the trademark, “Postman” in respect of the product, rice.

2. By the impugned judgment, an interim injunction was granted against the appellant and in favour of the respondent, restraining the 2009:DHC:5145 appellant from using the trademark, “Postman” for the product, rice. In the operative paragraph of the judgment, the trial court proceeded to opine that the appellant/plaintiff had no cause of action and hence it was not necessary to proceed with the suit for further trial. As a result, the suit of the appellant was dismissed with costs, whereas the counter claim filed by the respondent was directed to be registered as a suit.

3. The basis of the conclusion arrived at by the trial court in the operative para to the effect that the appellant/plaintiff had no cause of action, has not been elucidated anywhere in the impugned judgment, which runs into 17 pages. It is not disputed by either side that in fact arguments were addressed only on the interim application filed under Order 39 R-1 & 2 CPC, seeking injunction during the pendency of the suit. The aforesaid position is borne out from a perusal of the opening paragraph of the impugned judgment, which noted that the said order would decide the application filed under Order 39 Rule 1 CPC for injunction. Aggrieved by the aforesaid judgment, the appellant filed the present appeal in July, 1999. Over a decade has passed since the appeal was admitted on 26.07.1999.

4. Counsel for the appellant concedes that till date, no cause of action has arisen in respect of trademark, “Postman” for the product, rice and they have not been able to find the respondent using the trademark, “Postman” for the said product. Upon inquiry, counsel for the respondent also states that as per his knowledge, till date, the respondent has not entered the market with the trademark “Postman” for the product, rice. He states further that though the respondent may not have come in the market with trademark, “Postman” for rice, it does not preclude his client from using the said trademark for products other than oil including rice in future, which contention is disputed by the counsel for the appellant.

5. Counsel for the appellant however fairly concedes that nothing further survives in the suit, out of which the present appeal has arisen, as the same was instituted in the year 1997 on the basis of an apprehension of the appellant at the relevant time that the respondent was planning to come in the market with the trademark “Postman” for the product, rice.

6. In this view of the matter, the present appeal is disposed of. Needless to state that this Court has not expressed any opinion on the merits of the case and both the parties shall be entitled to seek their remedies against each other in accordance with law, as and when any fresh cause of action accrues in their favour.

7. Registry is directed to release the trial court record forthwith to enable the respondent to prosecute its counter claim, which was directed to be registered as a suit and is stated to be pending in the trial court. Both the parties shall be entitled to seek all the pleas that may be available to them in law. Parties shall appear before the trial court for further proceedings on 08.01.2010.

8. File be consigned to the record room. HIMA KOHLI,J DECEMBER 03, 2009 sk