Interestingly, the impugned order has been issued in
OP No.1509/2021, namely Ext.P1 filed by the petitioner, seeking
permanent prohibitory injunction against the respondent from
entering into the two shop rooms scheduled therein, which are
situated at Changanacherry. The respondent, by filing a
counterclaim, alleging that the said shops are being run under the
name “CALLUNA”, over which, she holds a valid Trade Mark; and
therefore, sought an injunction against the petitioner from using it
in any manner. {Para 2}
3. The learned Family Court initially passed an order,
which was challenged before this Court, culminating in a judgment
remanding the matter; and thereupon the learned Court
reconsidered the matter, which has now led to Ext.P10 order.
4. Pertinently, through Ext.P10, I.A.No.1/2021 filed by the
petitioner seeking permanent prohibitory injunction against the
respondent from entering into the two shop rooms has been
rejected; but the latter's application, namely I.A.No.10/2022, has
been allowed, thus restraining the former from using the
trademark “CALLUNA”, with a consequential direction to him to remove it from the name boards/hoardings and social media,
wherever he has displayed/used in his personal capacity.
Obviously, an injunction against the petitioner, to remove the name boards, prima facie, can be interpreted to the prejudice of the respondent because, going by the findings of the learned Family Court, she is entitled to be in charge of the shop room, at least equally with the petitioner.
9. That apart, when the specific case of the petitioner
was that a counterclaim seeking a roving order as now asserted by
Sri.Manu G.Nair is not maintainable, it has not been considered by
the learned Court in that perspective, but it appears to have gone
on on the assumption that what has been sought for is confined to
the subject matter. This is indubitable because, nowhere in the
impugned order is there any discussion by the learned Family
Court whether a counterclaim, which runs beyond the original
petition particularly with respect to shops which are not part of
the subject matter, would be maintainable; but it has proceeded on the impression that the injunction has been sought only as against such subject matter.
11. In the afore circumstances, we allow this original
petition and set aside Ext.P10 to the extent impugned, namely qua
I.A.No.10/2022; with a consequential direction to the learned
Family Court to reconsider the said application after affording
necessary opportunities to both sides, thus culminating in an
appropriate fresh order expeditiously.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
OP (FC) NO. 591 OF 2024
C. K. CHANDRAN Vs MANJU,
PRESENT
MR. JUSTICE DEVAN RAMACHANDRAN
& MRS. JUSTICE M.B. SNEHALATHA
Dated: 10.10.2024.
Citation: 2024:KER:77983
The petitioner challenges Ext.P10 order of the learned
Family Court, Kottayam at Ettumanoor, however, only as regards
the injunction ordered by it in I.A.No.10/2022.
2. Interestingly, the impugned order has been issued in
OP No.1509/2021, namely Ext.P1 filed by the petitioner, seeking
permanent prohibitory injunction against the respondent from
entering into the two shop rooms scheduled therein, which are
situated at Changanacherry. The respondent, by filing a
counterclaim, alleging that the said shops are being run under the
name “CALLUNA”, over which, she holds a valid Trade Mark; and
therefore, sought an injunction against the petitioner from using it
in any manner.
3. The learned Family Court initially passed an order,
which was challenged before this Court, culminating in a judgment
remanding the matter; and thereupon the learned Court
reconsidered the matter, which has now led to Ext.P10 order.
4. Pertinently, through Ext.P10, I.A.No.1/2021 filed by the
petitioner seeking permanent prohibitory injunction against the
respondent from entering into the two shop rooms has been
rejected; but the latter's application, namely I.A.No.10/2022, has
been allowed, thus restraining the former from using the
trademark “CALLUNA”, with a consequential direction to him to
remove it from the name boards/hoardings and social media,
wherever he has displayed/used in his personal capacity.
5. Sri.Ramesh Ganapathy - appearing for the petitioner,
argued that the impugned order of the learned Family Court is
now being misused by the respondent even before Authorities and
Police, to ensure that he is not allowed to run any shop anywhere
in the country; and that he is being forced to remove the name
boards/hoardings, as also from social media, even though they are
not part of the cause of action projected in Ext.P1. Sri.Ramesh
Ganapathy also impelled a contention that I.A.No.10/2022 was not
maintainable because, the counterclaim itself has no legs to stand
on forensically; but that the learned Family Court did not
consider it in proper perspective and issued Ext.P10, which he
asserted, is in error.
6. However, Sri.Manu G.Nair - appearing for the
respondent, argued that the issues projected in the counterclaim is
only incidental to the cause of action as projected in the Original
Petition; and therefore, that its maintainability can never be
questioned. He contended that, therefore, I.A.No.10/2022 was
also liable to be considered by the learned Family Court, which it
has done and argued that its conclusions on it, as available from
the said order, is without error. He then asserted that the
counterclaim preferred by his client is not limited to the subject
matter of the Original Petition, but to every other shops run by the
petitioner wherever available in Kerala and hence that the order in
I.A.No.10/2022 is irreproachable.
7. We must record that there are some real issues now
visible from Ext.P10 order, when it is tested on the rival
submissions of the parties.
8. The first is that, when I.A.No.1/2021 was dismissed and
against which, no appeal has been filed – at least not at this time –
the findings of the learned Family Court, that the shops in
question are being held by the husband in the capacity of the
trustee and that it should be assumed to have been begun for her
and on behalf of her, even though the rooms are rented by the
husband in his name, remain firm. Obviously, an injunction
against the petitioner, to remove the name boards, prima facie,
can be interpreted to the prejudice of the respondent because,
going by the findings of the learned Family Court, she is entitled to
be in charge of the shop room, at least equally with the petitioner.
9. That apart, when the specific case of the petitioner
was that a counterclaim seeking a roving order as now asserted by
Sri.Manu G.Nair is not maintainable, it has not been considered by
the learned Court in that perspective, but it appears to have gone
on on the assumption that what has been sought for is confined to
the subject matter. This is indubitable because, nowhere in the
impugned order is there any discussion by the learned Family
Court whether a counterclaim, which runs beyond the original
petition particularly with respect to shops which are not part of
the subject matter, would be maintainable; but it has proceeded on
the impression that the injunction has been sought only as against
such subject matter.
10. We are, therefore, of the firm view that the matter
will require to be reconsidered by the learned Family Court and
when we say so, we are fully aware that Ext.P10 is a consequence
of a reconsideration which is ordered by this Court before.
However, the said reconsideration was ordered not on the edifice
of our observations as said above, but for other reasons; and as
long as the confusion remains with respect to the manner in which
the cause of action of the parties are to be assessed and evaluated,
particularly on the touchstone of the question whether an omnibus
order of injunction against the petitioner is maintainable under the
provisions of the Trademark Act even to shops which are not
subject matter of the original petition filed by him, has not been
answered.
11. In the afore circumstances, we allow this original
petition and set aside Ext.P10 to the extent impugned, namely qua
I.A.No.10/2022; with a consequential direction to the learned
Family Court to reconsider the said application after affording
necessary opportunities to both sides, thus culminating in an
appropriate fresh order as expeditiously as is possible, but not
later than one month from the date of receipt of a copy of this
judgment.
Needless to say, all objections of the petitioner, including
of maintainability, will be considered by the learned Family Court
and its opinion indited in the resultant order.
Sd/- DEVAN RAMACHANDRAN
JUDGE
Sd/- M.B. SNEHALATHA
JUDGE
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