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Case Number

CMA No. 428 of 2007

Attorney(S)

For the Appellant: A. Sarala Advocate.
For the Respondent: K. Hema Prakash Rao, Advocate.

Judges

P.S Narayana, J.

Acts

Order 39 Rules 1 and 2 read with Section 151 of the Code of Civil Procedure, hereinafter
SECTION 57 TRADE MARKS ACT 1999
Sections 14 and 57 of the Trade Marks Act, 1999.
SECTION 14 TRADE MARKS ACT 1999
Merchandise Marks Act, 1958,
TRADE MARKS ACT 1999

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Smart Summary

Structured Summary of the Court Opinion

Factual and Procedural Background

This civil miscellaneous appeal arose from IA No. 299 of 2007 in OS No. 4 of 2007 on the file of the III Additional District Judge, Karimnagar. The petitioner (plaintiff in the trial court) sought a temporary injunction under Order 39 Rules 1 & 2 read with Section 151 of the Code of Civil Procedure, praying inter alia to restrain the defendant (respondent in the appeal) and others from infringing the petitioner's registered trade mark (certificate Ex.A2 dated 29.9.2004) and from passing off goods under marks described as ADEPU, ADEPU 222 and ADEPU 555 and composite labels.

The petitioner relied on documentary evidence marked Exs.A1–A30 (including the registration certificate Ex.A2, assessment orders, sample dyed cloth pieces Exs.A26–A30, and a partition deed Ex.A24 dated 15.3.2005). The respondent relied primarily on an affidavit by the parties' father and on the defence that the mark ADEPU is a family surname/label used by a joint family business historically and could not be exclusively appropriated by the petitioner.

Both counsel requested final disposal of the civil miscellaneous appeal; the Court therefore proceeded to dispose of the appeal finally rather than hear further interlocutory submissions.

Legal Issues Presented

Whether the petitioner was entitled to a temporary injunction restraining the respondent from using the trade mark ADEPU and related composite labels, pending final adjudication.
What effect, if any, the prior family usage of the surname/label ADEPU and the partition (Ex.A24) had on the petitioner's claim to exclusive rights in the registered trade mark (Ex.A2 dated 29.9.2004).
Whether alleged irregularities (such as registration obtained without putting family members on notice) should be challenged within the Trade Marks Act, 1999, or by civil injunction proceedings.

Arguments of the Parties

Appellant-Defendant's Arguments (respondent in the application)

The ADEPU labels (including ADEPU 222 and ADEPU 555) are family or joint-family labels used by various members and business concerns of the joint family; therefore the plaintiff cannot claim exclusive rights in the mark.
The respondent stressed that the registration obtained by the petitioner was done without putting other family members on notice and alleged deceit in obtaining the registration; therefore an injunction to prevent the appellant from using the family mark could not be sustained.
The appellant relied on an affidavit of the father and pointed out that partition (document Ex.A24 dated 15.3.2005) divided properties among family members; the family use of the mark predates any exclusive claim.
The appellant referenced provisions of the Trade Marks Act, 1999 and placed reliance on certain judicial decisions (including Bagla & Co. v. Bagla Cosmetics) to support the position that rival family factions may both be entitled to use a family name or label.
Submitted that the petitioner had not made out a strong prima facie case for a temporary injunction, and these matters should be examined at final disposal.

Respondent-Plaintiff's Arguments (petitioner in the application)

The petitioner asserted continuous, exclusive use of the trade mark and labels (ADEPU and composite labels such as ADEPU 222 / ADEPU 555) from 1986 and as a sole proprietor from 1993, supported by documentary exhibits (Exs.A3–A22, Ex.A2 registration certificate, Ex.A24 partition deed filed incidentally).
The petitioner relied on Ex.A2, the Certificate of Registration of Trade Mark dated 29.9.2004, and other documentary evidence (Exs.A1–A30) to show prior use and reputation in the market for casement cloths and turnover figures in the plaint.
Even if some procedural irregularity under Section 14 of the Trade Marks Act, 1999 was alleged, the petitioner argued that remedies are provided under the Trade Marks Act and that unless and until the registration is cancelled, revoked, varied or annulled by competent authorities, the appellant could not question the validity of the Certificate in these proceedings.
The petitioner applied to cross-examine the father whose affidavit was relied upon by the respondent; that application was stated to be pending.
The petitioner relied on Sections 14 and 57 of the Trade Marks Act, 1999, and placed reliance on decisions to substantiate the claim of infringement and entitlement to injunctive relief.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Bagla & Co. v. Bagla Cosmetics, 2000 (2) Arbitration Law Reporter 590 (Delhi)	That where a business/name is an offshoot of an original family business, rival family factions may both be entitled to use the family name; it may not be possible at an interlocutory stage to determine which faction is entitled to exclusive use.	The Court cited this decision to acknowledge the principle that family names/labels used historically by a family may be used by different branches and that an interlocutory determination of exclusive entitlement is difficult; this supported the Court's caution in resolving competing family-use claims at the interlocutory stage.
Kaviraj Pandit Durga Dutt Sharma v. Navaratna Pharmaceutical Laboratories (Apex Court)	Sets out the test for infringement: where marks are identical, infringement is made out; where not identical, plaintiff must show deceptive similarity likely to deceive or cause confusion; comparison may be visual, phonetic or by basic idea; identification of essential features is a question of fact.	The Court relied on these principles to frame the legal test for deceptive similarity and infringement; the Court observed that such factual determinations (degree of resemblance and essential features) are matters to be gone into at appropriate stages of the suit.
Sohan Lal and Ors. v. Amin Chand and Sons (Apex Court)	When partnership assets (including trade marks) form part of the partnership property, co-owners (partners or their legal representatives) may have rights to use the trade mark, and prima facie exclusive injunctions against co-owners may not be justified.	The Court cited this authority to underscore that where trade marks form part of family/partnership assets, exclusive injunctions against other co-owners or family branches may be inappropriate on interlocutory considerations; this supported a cautious approach to granting permanent restraints among family factions.

Court's Reasoning and Analysis

The Court proceeded by recording the procedural posture: the appeal was placed before it as an interlocutory matter but both counsel requested final disposal; the Court therefore proceeded to finally dispose of the civil miscellaneous appeal.

The Court examined the pleadings and the documentary material (Exs.A1–A30) filed by the petitioner and the affidavit of the father relied upon by the respondent. The Court accepted these core facts from the record:

Ex.A2 (Certificate of Registration of Trade Mark dated 29.9.2004) exists and its validity or existence was not seriously disputed.
The parties do not have a serious controversy about the family use of the ADEPU surname/label over a long period.
The partition deed Ex.A24 dated 15.3.2005 is not in serious controversy and is chronologically subsequent to Ex.A2.

Applying the legal principles cited in authorities (Bagla, Kaviraj Pandit Durga Dutt Sharma, Sohan Lal), the Court emphasized the following analytical points:

Where a family name/label has historically been used by various members of a joint family business, it is difficult on interlocutory evidence to conclude which faction is exclusively entitled to use the name; therefore an interlocutory injunction to exclude other family branches requires careful consideration (Bagla, Sohan Lal).
The legal test for trademark infringement requires a comparison of marks to determine identity or deceptive similarity; this is essentially a factual enquiry concerned with the essential features of the marks and the likelihood of deception of buyers (Kaviraj Pandit Durga Dutt Sharma).
Even if procedural irregularities under Section 14 of the Trade Marks Act, 1999 were alleged (for example, registration obtained without notifying co-owners), the statutory framework of the Trade Marks Act provides the appropriate remedies — e.g., cancellation, revocation or variation by competent authority — and such remedies exist alongside civil proceedings.

Having noted the foregoing, the Court then considered the trial judge's order granting temporary injunction and the reasons recorded. The Court stated that the trial judge's findings were convincing in the light of Exs.A23 (joint declaration), Ex.A24 (partition deed) and Ex.A2 (registration certificate) and that the contents of the father's affidavit needed further examination at the appropriate stage. Hence the Court concluded that the temporary injunction granted by the III Additional District Judge could not be faulted on the record before it.

Nonetheless, because of the peculiar facts — namely the close temporal proximity between Ex.A2 (registration) and Ex.A24 (partition) and the father's affidavit raising relevant issues — the Court considered this a fit case for early final adjudication. The Court noted that pleadings were complete and, given urgency, directed the III Additional District Judge, Karimnagar, to accord top priority and dispose of the suit itself within three months from receipt of a copy of the judgment.

Holding and Implications

Holding: Subject to the direction that the trial court decide the suit as a priority and within three (3) months, the civil miscellaneous appeal is dismissed. There shall be no order as to costs.

Implications and immediate effects:

The temporary injunction previously granted by the III Additional District Judge, Karimnagar is not disturbed by this appellate court on the material before it; the appellate court found the trial judge's reasons convincing in view of Exs.A2, A23 and A24 and the pending affidavit of the father.
The respondent (appellant before the trial court) remains at liberty to pursue statutory remedies under the Trade Marks Act, 1999 (for cancellation, revocation or other appropriate proceedings) if it chooses; the Court explicitly noted that statutory procedures under Sections 14 and 57 of the Trade Marks Act are available.
The Court has not laid down any new legal precedent; it applied existing authorities to the facts and directed expedited final disposal. The decision's principal direct effect is dismissal of the civil miscellaneous appeal and a direction for speedy final adjudication at trial level; no costs were awarded.

This summary is prepared strictly from the content contained in the provided opinion. No information has been added beyond what is present in the text.

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Adepu Surendra v. Adepu Ravindra

1. The matter is appearing under the caption 'interlocutory'.

2. Sri K. Hema Prakash Rao, learned Counsel representing the plaintiff having lodged a Caveat entered appearance and opposed the granting of any interim order in this civil miscellaneous appeal. Mrs. A. Sarala, learned Counsel representing the appellant-defendant made elaborate submissions and both the Counsel on record made a request for the final disposal of the civil miscellaneous appeal itself and hence this Court is disposing of the civil miscellaneous appeal itself finally.

3. Mrs. Sarala, learned Counsel representing the appellant-respondent-defendant would submit that the relationship between the parties is not in controversy and the fact that the respondent obtained the registration of the trade mark without putting the other family members on notice also is not in serious controversy. The learned Counsel would submit that the label popularly known as 'Adepu 222 and Adepu 555' are of the joint family and the joint family has been utilising the same and when that being so when the same is not shown even in the partition between the family members, merely because respondent-plaintiff had obtained the registration of the trade mark just recently in deceitful manner without putting the other family members on notice, preventing the appellant from using the trade mark by virtue of a restraint order, cannot be sustained. The learned Counsel also had pointed out to the contents of the affidavit filed by the father in support of the stand taken by the appellant. At any rate, the Counsel would submit that when these are the matters to be gone into at the time of final disposal of the suit and when strong prima facie case was not made out by the respondent-petitioner-plaintiff, granting of temporary injunction is not just and proper. The learned Counsel also had pointed out to the relevant statutory provisions under the Trade Marks Act, 1999. The learned Counsel also placed strong reliance on certain decisions.

4. Per contra, Sri Hema Prakash Rao, learned Counsel representing the respondent-petitioner-plaintiff would maintain that the documentary evidence placed before the Court commencing from Exs.A3 to A22 would go to show that even prior to the alleged partition, for sufficiently a long time, the plaintiff has been doing the textile business separately. The learned Counsel also would submit that the fact that the Certificate of Registration of Trade Mark dated 29.9.2004, marked as Ex.A2, had been obtained is not in serious controversy. When that being so, the learned Counsel would submit that even if it is to be taken that there is some violation or contravention of Section 14 of the Trade Marks Act, 1999, the procedure available to the appellant is elsewhere i.e., within the framework of the Trade Marks Act, 1999. The Counsel also would maintain that unless and until the Certificate of Registration of Trade Mark is cancelled, revoked, varied, modified or in anyway annulled by the competent authorities specified under the Act aforesaid, till then the appellant has no right to question the same. The Counsel also further would maintain that an application was moved to cross-examine the father in the light of the affidavit said to have been given by the father and the Counsel would submit that the said application is pending disposal. The learned Counsel also had pointed out to the relevant portions of the findings recorded by the learned III Additional District Judge, Karimnagar, and also would submit that the pleadings of the respective parties being complete, at this stage it may not be just and proper to disturb a well-considered order of this nature and instead the suit itself can be finally disposed of. The learned Counsel also placed strong reliance on certain decisions to substantiate his submissions and further had pointed out to the relevant provisions under Sections 14 and 57 of the Trade Marks Act, 1999.

5. Heard both the learned Counsel and perused the findings recorded by the learned III Additional District Judge, at Karimnagar in IA No. 299 of 2007 in OS No. 4 of 2007.

6. For the purpose of convenience, the parties hereinafter would be referred to as petitioner and respondent as shown in IA No. 299 of 2007 in OS No. 4 of 2007 on the file of III Additional District Judge at Karimnagar. It is needless to say that the petitioner is the plaintiff shown as respondent in the present civil miscellaneous appeal and the respondent-defendant is the appellant.

7. The petitioner filed the application aforesaid under Order 39 Rules 1 and 2 read with Section 151 of the Code of Civil Procedure, hereinafter in short referred to as Code for the purpose of convenience, praying for granting of temporary injunction against the defendant, his servants, stockists, dealers and others from infringing the rights of the petitioner to the registered trade mark under No. 1314052 and from passing of his casement cloth, any other allied cognate goods under the impugned trade mark ADEPU or the composite lebels consisting of ADEPU with or without numerals 222 or 555 or any other numerals, the photo of human being, the wheel and other article works trade mark labels which are identical or deceptively similar either visually phonetically to the petitioner's trade mark.

8. On behalf of the petitioner, Exs.A1 to A30 were marked. Exs.A26 to A30 are sample dyed cloth pieces. These are marked most probably to show the similarity or the deceptivity. Ex.A2 is the Certificate of Registration of Trade Mark dated 29.9.2004; Exs.A3 to A17 are the different assessment orders commencing from 1993 onwards; Ex.A18 is the Certificate from N.S.R. Anjaneyulu and Co., dated 22.12.2006; E.A19 is the order of Form, 58 in number; Ex.A20 is the letter from the Deputy Commercial Tax Officer, Karimnagar; Ex.A21 is the Delivery Memo; Ex.A22 is the Cash Bill; Ex.A23 is the joint declaration by way of affidavit dated 11.4.2005 and Ex.A24 is Agreement Deed dated 15.3.2005. As against this documentary evidence placed before the Court, the present appellant-respondent in the said application relied on the affidavit given by the father.

9. In the affidavit filed in support of the application it was stated by the petitioner that he is a sole proprietor from 1993 without change of trade name Adepu Ramaiah Narayana and Co., and he has largest and renowned manufacturer of textiles casement clothes, which is used mainly for under garments. It was also stated in the affidavit that label popularly known as ADEPU 222 and ADEPU 555, and he adopted during composite labels consisting of Adepu Ramaiah depicted in vowel shape artistic design with different numerals 222 and 555 as the case may be below the photo adding ADEPU for business underneath the said numerals device of a wheel and other descriptive matters thereunder. It is stated that the trade mark ADEPU and the composite label consisting of ADEPU is the main feature were adopted by him from 1986 to distinguish his goods from other manufacturers. It is further stated that the petitioner is a proprietor of Adepu Ramaiah Narayana and Co., and has been manufacturing and marketing the casement cloth without any interference or interruption from any other quarter by his efforts, skilled labour he used sophisticated machinery for preparation of good quality of cloth and the trade marks are associated exclusively with the goods emanated from him alone and his turnover from 1994-95 to 2006-07 is in lakhs as shown in the petition and he applied for registration of trade mark ADEPU composite label which are popularly known as 222 and ADEPU 555 in respect of casement clothes as he is using from 1986 under the Trade Marks Act, 1999. It is stated that a Certificate of Registration of Trade Mark ADEPU 222 being bearing No. 1312052 has been received and his application for ADEPU 555 and the label of registration is pending under application No. 1312052. It is stated that the same is published in Eenadu in Krishna and West Godavari Districts on 13.11.2006 and 18.11.2006. It is stated that that the petitioner come across similar goods with trade mark of similar to that of the plaintiff through other traders. It is also stated that then the petitioner came to know that the respondent made application on 30.11.2006 for registration of ADEPU under No. 1509126 and another registration of a composite label bearing No. 1590197 which are identical to the trade mark of the plaintiff, and a perusal of the applications filed by the respondent before the Registration Authority which are identical trade marks so his rights are infringed in using his trade marks because the alleged trade marks of the respondent is in a deceptive nature and he is going to get huge loss and he also mentioned how the trade mark of the petitioner and trade mark applied for by the respondent and in what way is different and which are the words similar and also pleaded that the respondent-defendant is issuing bills in the name of same textiles and respondent-defendant is also passing of his goods under the deceptive trade marks to cause loss to the plaintiff. It is stated that the plaintiff-petitioner is prior user of trade mark and he can protect his trade mark and hence prayed to grant injunction restraining defendant from using the deceptive trade mark similar to that of the plaintiff-petitioner.

10. A counter was filed admitting the relationship between the parties. It was also stated that they had a business Adepu Ramaiah Narayana Co., which is the joint family business and hence the plaintiff cannot exclusively use the trade mark and their grandfather died on 31.7.1984 and their joint family got six business concerns which are (1) M/s. Adepu Ramaiah Narayana Co., under the name of Adepu Ravinder, (2) Sri Rama Weaving and Dyeing Works in the name of Adepu Surender; (3) Maruthi Textiles in the name of Adepu Latha W/o. Ravinder; (4) Vishnu Textiles in the name of Adepu Narayana S/o. Ramaiah; (5) Sai Textiles in the name of Adepu Narayana S/o. Ramaiah and (6) Jaya Laxmi Associates in the name of Adepu Narayana, Adepu Surender and Adepu Venkawa. It was also stated that the plaintiff-petitioner started quarrelling with him and his father in the year 2004 and the efforts made by his father are not fruitful and as such on 15.3.2005 himself and petitioner-plaintiff divided their properties under a document and plaintiff also filed the said document along with the plaint. It is stated that after partition only the plaintiff carrying separate business and prior to that it is a joint family business. It is further stated that the photo on the fabric is Adepu Ramaiah who is their grandfather and out of six business concerns, Jaya Laxmi Associates fell to his share and remaining concerns Nos. l to 5 fell to the share of the petitioner-plaintiff. It is also stated that the plaintiff fraudulently without knowledge of the father or himself obtained a Registration Certificate on 29.9.2004 in respect of the trade mark of ADEPU 222, photo of his grandfather with brand name of device label being used in respect of goods manufactured by the joint family after getting fraudulent registration and petitioner-plaintiff started quarrelling for family partition. It is stated that the plaintiff published about the trade mark in West Godavari, but not published in Karimnagar where the respondent-defendant is living and carrying business. It is further stated that when the father of the petitioner-plaintiff and respondent-defendant by name Narayana is alive, without the consent of Narayana, he cannot obtain the registration of trade mark and even without consent of the legal heirs of Ramaiah he cannot get trade mark and the ADEPU mark is mark of their joint family being a joint family member he is entitled to use it. It is stated that ADEPU is their surname and the same cannot be exclusively used by the petitioner-plaintiff and he is using the trade mark bona fidely, genuinenely and honestly as it is a joint family label after partition and being a member of joint family, he is also equally entitled to use the trade mark.

11. The plaintiff-petitioner filed a Rejoinder denying the allegations.

12. The petitioner-plaintiff instituted the suit for the relief of perpetual injunction mainly on the ground mat he had obtained the Certificate of Registration of Trade Mark dated 29.9.2004-Ex.A2 and also incidentally further relying upon Ex.A24, the partition between the family members dated 15.3.2005 and further his continuous exercise of rights over the business in a way exclusively commencing from 1993 onwards as evidenced by Exs.A4 to A22. As already referred to supra, to show the similarity or deceptivity Exs.A26 to A30 had been marked. No doubt the Counsel for the present appellant, the respondent in the application, had pointed out to certain other aspects also how fraudulently by making certain publications elsewhere, which was not within the knowledge of this party, the petitioner-plaintiff had obtained Ex.A2. On a careful reading of Section 14 and Section 57 of the Trade Marks Act, 1999, there cannot be any doubt whatsoever that the aggrieved party is having a remedy and the procedure as contemplated by the provisions of the said Act to be followed.

13. Be that as it may, the facts in the present case appear to be a bit novel for the reason that there is no serious controversy between the parties that this surname trade mark was being utilised by the family for sufficiently a long time for running the business. It is pertinent to note that Ex.A2, the Certificate of Registration of Trade Mark is dated 29.9.2004. It is also pertinent to note that the petitioner-plaintiff is claiming the exclusive enjoyment from 1993 onwards. It is needless to say that while deciding the interlocutory application of this nature, the Court is expected to record only prima facie findings.

14. Be that as it may, the partition-Ex.A24, dated 15.3.2005, also is not in serious controversy. The crucial document, on which strong reliance was placed Ex.A2, the Certificate of Registration of Trade Mark is dated 29.9.2004. It is needless to say that it is anterior to Ex.A24.

15. The Counsel for the appellant, respondent in the application IA No. 299 of 2007 in OS No. 4 of 2007 placed strong reliance on the decision of the Delhi High Court in Bagla and Co. v. Bagla Cosmetics 2000 (2) Arbitration Law Reporter 590 (Delhi), wherein the learned Judge of the Delhi High Court while dealing with a similar fact situation, no doubt under the Trade and Merchandise Marks Act, 1958, held as follows:

In my view it is not permissible at this stage, to lose sight of the fact that the two adversaries are offshoots of the original family business commenced by the partial namely Nanu Mal Bagla in 1925. The business is the same and had been jointly carried out by Nanu Mal Bagla and his two sons. It cannot be held at this stage which part of the Bagla family was transacting business in style of Bagla Cosmetics. It is also not possible at this stage to return a decisive and unequivocal finding as to which of the rival factions of the family has been doing business after the disruption of the family business due to the disappearance of Shri Nanu Mal Bagla. As has been clearly set down by the Apex Court in Sohan Lal's v. Amin Chand and Sons , case, both factions would be entitled to use of the family name 'Bagla'. Neither of the parties are entitled to injunct the other from transacting business by employing the family name 'Bagla'. The partnership firm 'Bagla Cosmetics' of which Shri Navin Kumar and Pawan Kumar Bagla sons of Jaininder Kumar Bagla and grandson of Nanu Mal Bagla shall be entitled to continue to transact business in the name and style 'Bagla Enterprises'. Shri Ganeshi Lal Bagla son of Nanu Mal Bagla and sole proprietor of 'Bagla & Co.' may continue to transact business in the name and style 'Bagla & Co.

16. The Counsel for the petitioner-plaintiff placed strong reliance on the decision of the Apex Court in Kaviraj Pandit Durga Dutt Sharma v. Navaratna Pharmaceutical Laboratories , wherein the Apex Court at Paragraph 29 observed as follows:

When once the use by the defendant of the mark which is claimed to infringe the plaintiffs mark is shown to be "in the course of trade", the question whether there has been an infringement is to be decided by comparison of the two marks. Where the two marks are identical no further questions arise; for then the infringement is made out. When the two marks are not identical, the plaintiff would have to establish that the mark used by the defendant so nearly resembles the plaintiffs registered trade mark as is likely to deceive or cause confusion and in relation to goods in respect of which it is registered (Vide Section 21). A point has sometimes been raised as to whether the words "or cause confusion" introduce any element which is not already covered by the words "likely to deceive" and it has sometimes been answered by saying that it is merely an extension of the earlier test and does not add very materially to the concept indicated by the earlier words "likely to deceive". But this apart, as the question arises in an action for infringement the onus would be on the plaintiff to establish that the trade mark used by the defendant in the course of trade in the goods in respect of which his mark is registered, is deceptively similar. This has necessarily to be ascertained by a comparison of the two marks-the degree of resemblance which is necessary to exist to cause deception not being capable of definition by laying down objective standards. The persons who would be deceived are, of course, the purchasers of the goods and it is the likelihood of their being deceived that is the subject of consideration. The resemblance may be phonetic, visual or in the basic idea represented by the plaintiffs mark. The purpose of the comparison is for determining whether the essential features of the plaintiffs trade mark are to be found in that used by the defendant. The identification of the essential features of the mark is in essence a question of fact and depends on the judgment of the Court based on the evidence led before it as regards the usage of the trade. It should, however, be borne in mind that the object of the enquiry in ultimate analysis is whether the mark used by the defendant as a whole is deceptively similar to that of the registered mark of the plaintiff.

17. Reliance also was placed on the decision of the Apex Court in Sohan Lal and Ors. v. Amin Chand and Sons , wherein the Apex Court while dealing with dissolution of the firm and trade mark forming part of assets, right to exclusive use of trade mark and the injunction to restrain use by one of the parties observed at Paragraph 8 as follows:

It may be recalled that Bakshi Ram gave notices for the dissolution of the two firms in January, 1967 to the other partners. The appellants contend that with the dissolution of the firm the assets of the firm including the trade marks registered in the name of the firms belonged to the partners as co-owners and that two of the partners, namely, the respondents, have no right to appropriate or use the assets of the firm to the exclusion of the legal representatives of the other partner, Bakshi Ram. The suit in which the injunction order was passed was filed for a declaration that "Amin Chand and Sons" constituted by the two surviving partners alone was entitled to use the assets of the firm of "Amin Chand and Sons" of which Bakshi Ram was a partner, and it was for restraining the appellants from using that firm's assets, namely, the two trade marks in question, that the order of injunction was sought. Prima facie, it would appear that the respondents are not entitled to the exclusive use of the two trade marks which formed part of the assets of the partnership of Amin Chand and Sons of which the three brothers were partners. The appellants being the legal representatives of Bakshi Ram were also entitled to a share of the assets of that partnership. If that be so, we do not think that the Courts were justified in granting the injunction restraining the appellants from using the trade marks. In these circumstances, we think that the proper course to adopt is to continue in force the order passed by this Court when it granted the special leave on the basis of the application filed by the appellants for stay of the order of injunction, after setting aside the order under appeal.

18. There cannot be any serious dispute or controversy relating to the propositions laid down by both the Apex Court and the Delhi High Court as well specified supra. Here is a case where the brothers are fighting the litigation. The partition between the parties, though it is said to be after the registration certificate-Ex.A2, is not in serious controversy. The stand taken relating to the exclusive exercise of rights by the petitioner-plaintiff from 1993 onwards is a matter to be gone into at the appropriate stage. However, the fact that the petitioner-plaintiff had obtained the registration of the trade mark is not in serious dispute. It is needless to say that the respondent is at liberty to take appropriate steps in accordance with law.

19. In the light of Exs.A23, A24 and A2, this Court is of the considered opinion that inasmuch as the contents of the affidavit given by the father to be further gone into at the appropriate stage, the relief of temporary injunction granted by the learned III Additional District Judge at Karimnagar cannot be found fault with in the light of the convincing reasons recorded by the learned Judge. However, in view of the peculiar facts and circumstances and also in the light of the close proximity of time between Exs.A2 and A24 and also in the light of the clear affidavit filed by the father, this Court is of the considered opinion that this is a fit matter to be decided at the earliest point of time. It is stated that the pleadings are complete. When that being so, in view of the urgency pleaded before this Court, the III Additional District Judge, Karimnagar, to give top priority to this matter since it being a family dispute and dispose of the suit itself within a period of three (3) months from the date of receipt of a copy of this judgment.

20. Subject to the above direction, the civil miscellaneous appeal shall stand dismissed. There shall be no order as to costs.

Adepu Surendra v. Adepu Ravindra

Structured Summary of the Court Opinion

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Appellant-Defendant's Arguments (respondent in the application)

Respondent-Plaintiff's Arguments (petitioner in the application)

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Adepu Surendra v. Adepu Ravindra

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