For finding a person guilty of willful disobedience of the
order under XXXIX Rule 2A C.P.C. there has to be not mere
“disobedience” but it should be a “willful disobedience”. The
allegation of willful disobedience being in the nature of
criminal liability, the same has to be proved to the
satisfaction of the court that the disobedience was not mere
“disobedience” but a “willful disobedience”. As pointed out
earlier, during the second visit of the Commissioner to the
appellant’s shop, tea cakes and masala cakes were being sold
without any wrappers/labels. The only thing which the
Commissioner has noted is that “non removal of the hoarding”
displayed in front of the appellant’s shop for which the
appellant has offered an explanation which, in our considered
view, is acceptable one.
8. In the facts and circumstances of the case, we do not find
any “willful disobedience” on the part of the appellant
warranting invoking Order XXXIX Rule 2A of the C.P.C. and
sentencing the appellant to one week civil imprisonment.
9. Accordingly, the impugned order is set aside and this
appeal is allowed.
NON-REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL No(s). 5775 OF 2019
U.C. SURENDRANATH Vs MAMBALLY’S BAKERY
BANUMATHI, J.
Dated: JULY 22, 2019.
Leave granted.
2. This appeal arises out of judgment and order dated 05th
January, 2016 passed by the High Court of Kerala at Ernakulam
in FAO No.2 of 2016 in and by which the High Court has affirmed
the order of the Trial Court passed under Order XXXIX Rule 2A
of the C.P.C. and also the sentence of imprisonment of one week
imposed upon the respondent.
3. Brief stated facts are as under. The respondent-
Mambally’s Bakery filed a suit for permanent injunction
restraining the appellant from passing off the goods by using
respondent’s trade mark “Mambally’s Bakery” or any other trade
mark deceptively identical or similar to the respondent’s mark
and also to restrain the appellant from wrongfully selling the
product using the trade mark “Mambally’s Bakery”. The Trial
Court vide Order dated 04.11.2015 granted the interim
injunction and the same was served upon the appellant on
09.11.2015. In the said suit the Trial Court appointed an
advocate Commissioner who inspected the appellant’s shop on
07.11.2015 and submitted a report on 26,11.2015 wherein the
Commissioner stated that the appellant is conducting the bakery
and tea shop business and tea cakes and masala cakes are sold
using respondent’s trade mark “Mambally’s Bakery”. The
Commissioner has also pointed out that a big hoarding with the
name “Mambally’s Bakery” has been displayed in front of the
appellant’s shop. Based on the Commissioner’s report, upon
perusal of the averments made in the counter affidavit and also
hearing the parties, the Trial Court came to the conclusion
that there is a willful disobedience on the part of the
appellant and directed that the appellant be sentenced to
undergo imprisonment for one week. Being aggrieved, the
appellant has preferred appeal before the High Court which came
to be dismissed as aforesaid in para (2).
4. We have heard Mr. P.V. Surendranath, learned senior
counsel appearing for the appellant and Mr. P.B. Suresh,
learned counsel appearing for the respondent and also perused
the impugned judgment and materials on record.
5. By perusal of the impugned judgment and also the order of
the Trial Court, it is seen that the Commissioner has inspected
the appellant’s premises on 07.11.2015; whereas the interim
order was served on the appellant on 09.11.2015. On the date
of inspection i.e. 07.11.2015 the Commissioner has noticed that
all the tea cakes and masala cakes prepared were covered having
trade mark “Mambally’s Bakery”. Since the interim order was
served on the appellant only on 09.11.2015 whatever was noticed
by the Commissioner on 07.11.2015 cannot be in violation of the
interim order, much less willful disobedience.
6. At the request of the respondent, the Commissioner again
inspected the appellant’s shop on 20.11.2015. It is to be
pointed out that on his second visit, the Commissioner noted
that the sale of tea cakes and masala cakes prepared, were
without “wrappers/labels” meaning thereby that on the date of
second visit of the Commissioner the appellant was not using
the mark of the respondent “Mambally’s Bakery”. During the
second visit, of course, the Commissioner noted that the
hoarding “Mambally’s Bakery” was displayed in front of the
appellant shop was not removed. In this regard, the appellant
has offered his explanation stating that since the hoarding is
situated at height of 13 feet and also due to the scarcity of
the labour force, he could not immediately remove the hoarding.
Mr. P.V. Surendranath, learned senior counsel appearing for the
appellant, has submitted that the appellant is 40% disabled and
he was incapacitated from climbing up and removing the hoarding
by himself.
7. For finding a person guilty of willful disobedience of the
order under XXXIX Rule 2A C.P.C. there has to be not mere
“disobedience” but it should be a “willful disobedience”. The
allegation of willful disobedience being in the nature of
criminal liability, the same has to be proved to the
satisfaction of the court that the disobedience was not mere
“disobedience” but a “willful disobedience”. As pointed out
earlier, during the second visit of the Commissioner to the
appellant’s shop, tea cakes and masala cakes were being sold
without any wrappers/labels. The only thing which the
Commissioner has noted is that “non removal of the hoarding”
displayed in front of the appellant’s shop for which the
appellant has offered an explanation which, in our considered
view, is acceptable one.
8. In the facts and circumstances of the case, we do not find
any “willful disobedience” on the part of the appellant
warranting invoking Order XXXIX Rule 2A of the C.P.C. and
sentencing the appellant to one week civil imprisonment.
9. Accordingly, the impugned order is set aside and this
appeal is allowed. Since, O.S.NO.1 of 2015 is pending
consideration, the Trial Court shall proceed with the said suit
and dispose of the same as expeditiously as possible. We make
it clear that we have not expressed any opinion either on the
merits of the matter or the contentions raised by the parties.
There shall be no order as to costs.
..........................J.
(R. BANUMATHI)
..........................J.
(A.S. BOPANNA)
NEW DELHI,
JULY 22, 2019.
Print Page
order under XXXIX Rule 2A C.P.C. there has to be not mere
“disobedience” but it should be a “willful disobedience”. The
allegation of willful disobedience being in the nature of
criminal liability, the same has to be proved to the
satisfaction of the court that the disobedience was not mere
“disobedience” but a “willful disobedience”. As pointed out
earlier, during the second visit of the Commissioner to the
appellant’s shop, tea cakes and masala cakes were being sold
without any wrappers/labels. The only thing which the
Commissioner has noted is that “non removal of the hoarding”
displayed in front of the appellant’s shop for which the
appellant has offered an explanation which, in our considered
view, is acceptable one.
8. In the facts and circumstances of the case, we do not find
any “willful disobedience” on the part of the appellant
warranting invoking Order XXXIX Rule 2A of the C.P.C. and
sentencing the appellant to one week civil imprisonment.
9. Accordingly, the impugned order is set aside and this
appeal is allowed.
NON-REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL No(s). 5775 OF 2019
U.C. SURENDRANATH Vs MAMBALLY’S BAKERY
BANUMATHI, J.
Dated: JULY 22, 2019.
Leave granted.
2. This appeal arises out of judgment and order dated 05th
January, 2016 passed by the High Court of Kerala at Ernakulam
in FAO No.2 of 2016 in and by which the High Court has affirmed
the order of the Trial Court passed under Order XXXIX Rule 2A
of the C.P.C. and also the sentence of imprisonment of one week
imposed upon the respondent.
3. Brief stated facts are as under. The respondent-
Mambally’s Bakery filed a suit for permanent injunction
restraining the appellant from passing off the goods by using
respondent’s trade mark “Mambally’s Bakery” or any other trade
mark deceptively identical or similar to the respondent’s mark
and also to restrain the appellant from wrongfully selling the
product using the trade mark “Mambally’s Bakery”. The Trial
Court vide Order dated 04.11.2015 granted the interim
injunction and the same was served upon the appellant on
09.11.2015. In the said suit the Trial Court appointed an
advocate Commissioner who inspected the appellant’s shop on
07.11.2015 and submitted a report on 26,11.2015 wherein the
Commissioner stated that the appellant is conducting the bakery
and tea shop business and tea cakes and masala cakes are sold
using respondent’s trade mark “Mambally’s Bakery”. The
Commissioner has also pointed out that a big hoarding with the
name “Mambally’s Bakery” has been displayed in front of the
appellant’s shop. Based on the Commissioner’s report, upon
perusal of the averments made in the counter affidavit and also
hearing the parties, the Trial Court came to the conclusion
that there is a willful disobedience on the part of the
appellant and directed that the appellant be sentenced to
undergo imprisonment for one week. Being aggrieved, the
appellant has preferred appeal before the High Court which came
to be dismissed as aforesaid in para (2).
4. We have heard Mr. P.V. Surendranath, learned senior
counsel appearing for the appellant and Mr. P.B. Suresh,
learned counsel appearing for the respondent and also perused
the impugned judgment and materials on record.
5. By perusal of the impugned judgment and also the order of
the Trial Court, it is seen that the Commissioner has inspected
the appellant’s premises on 07.11.2015; whereas the interim
order was served on the appellant on 09.11.2015. On the date
of inspection i.e. 07.11.2015 the Commissioner has noticed that
all the tea cakes and masala cakes prepared were covered having
trade mark “Mambally’s Bakery”. Since the interim order was
served on the appellant only on 09.11.2015 whatever was noticed
by the Commissioner on 07.11.2015 cannot be in violation of the
interim order, much less willful disobedience.
6. At the request of the respondent, the Commissioner again
inspected the appellant’s shop on 20.11.2015. It is to be
pointed out that on his second visit, the Commissioner noted
that the sale of tea cakes and masala cakes prepared, were
without “wrappers/labels” meaning thereby that on the date of
second visit of the Commissioner the appellant was not using
the mark of the respondent “Mambally’s Bakery”. During the
second visit, of course, the Commissioner noted that the
hoarding “Mambally’s Bakery” was displayed in front of the
appellant shop was not removed. In this regard, the appellant
has offered his explanation stating that since the hoarding is
situated at height of 13 feet and also due to the scarcity of
the labour force, he could not immediately remove the hoarding.
Mr. P.V. Surendranath, learned senior counsel appearing for the
appellant, has submitted that the appellant is 40% disabled and
he was incapacitated from climbing up and removing the hoarding
by himself.
7. For finding a person guilty of willful disobedience of the
order under XXXIX Rule 2A C.P.C. there has to be not mere
“disobedience” but it should be a “willful disobedience”. The
allegation of willful disobedience being in the nature of
criminal liability, the same has to be proved to the
satisfaction of the court that the disobedience was not mere
“disobedience” but a “willful disobedience”. As pointed out
earlier, during the second visit of the Commissioner to the
appellant’s shop, tea cakes and masala cakes were being sold
without any wrappers/labels. The only thing which the
Commissioner has noted is that “non removal of the hoarding”
displayed in front of the appellant’s shop for which the
appellant has offered an explanation which, in our considered
view, is acceptable one.
8. In the facts and circumstances of the case, we do not find
any “willful disobedience” on the part of the appellant
warranting invoking Order XXXIX Rule 2A of the C.P.C. and
sentencing the appellant to one week civil imprisonment.
9. Accordingly, the impugned order is set aside and this
appeal is allowed. Since, O.S.NO.1 of 2015 is pending
consideration, the Trial Court shall proceed with the said suit
and dispose of the same as expeditiously as possible. We make
it clear that we have not expressed any opinion either on the
merits of the matter or the contentions raised by the parties.
There shall be no order as to costs.
..........................J.
(R. BANUMATHI)
..........................J.
(A.S. BOPANNA)
NEW DELHI,
JULY 22, 2019.
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