Kerala High Court
Aneez Adam Koyappathody vs Unknown on 3 October, 2018
Author: A.Hariprasad
Bench: A.Hariprasad
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A.HARIPRASAD
WEDNESDAY,THE 03RD DAY OF OCTOBER 2018 / 11TH ASWINA, 1940
FAO.No. 42 of 2018
AGAINST THE ORDER DATED 24-08-2017 IN IA 1725/2017 IN OS 14/2017
of ADDITIONAL DISTRICT JUDGE-V, ERNAKULAM
APPELLANT/PETITIONER/PLAINTIFF :
ANEEZ ADAM KOYAPPATHODY
AGED 34 YEARS, S/O P.MUNEER, KOYAPPATHODY VILLA,
KRISHNAN NAIR ROAD, MALIKKADAVU, KOZHIKODE.673001
BY ADVS.
SRI.K.P.BALASUBRAMANYAN
SRI.NIRMAL. S
RESPONDENT/RESPONDENT/DEFENDANT
ANSHAD NAZIM
GROUND FLOOR, HOTEL AIR VIEW BUILDING, VIP ROAD, OPP.
COCHIN INTERNATIONAL AIRPORT, NEDUMBASSERY,
VAPPALASSERY PO, ERNAKULAM. 683572.
BY ADVS.
SRI.V.BOVAN CHERIAN VARKEY
SRI.C.HARIKUMAR
SRI.P.S.SIDHARTHAN
SRI.RENJITH RAJAPPAN
SRI.VIZZY GEORGE KOKKAT
SRI.V.V.SADANANDAN (SREEMOOLANAGARAM)
THIS FIRST APPEAL FROM ORDERS HAVING COME UP FOR ADMISSION ON
03.10.2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
FAO.No. 42 of 2018
2
JUDGMENT
Heard the learned counsel for the appellant and respondent.
2. Appellant is the plaintiff in O.S.No.14 of 2017 before the Additional District Judge-V, Ernakulam. He preferred a suit against the respondent seeking injunction restraining the respondent and his men from running a restaurant under the name and style "Adaminte Chayakkada". According to the appellant, the respondent is passing off his goods and services by deceitful means.
3. Along with the suit, I.A.No.1725 of 2017 was filed for a temporary injunction for restraining the respondent from committing any act of passing off. The application was dismissed by the trial court. The court below considered Exts.P1 to P9 and B1 to B7 on the side of the rival parties and came to a conclusion that the respondent was conducting a business "Adaaminte Chaayakkada" from 14.2.2013 onwards and therefore, he should be regarded as the prior user of the FAO.No. 42 of 2018 3 trade name. This finding is seriously challenged by the learned counsel for the appellant.
4. Learned counsel for the respondent submitted that the suit is posted for plaintiff's evidence on 6.10.2018. Learned counsel would submit that the appellant will have to take some steps to amend the plaint and the learned counsel is having some personal inconvenience and therefore, the trial if started on 6.10.2018 will result in prejudice to the appellant.
Having regard to the facts and circumstances, following directions are issued:
The court below shall defer trial of the case to 12.11.2018. In the meantime, if the appellant makes an application for amendment of the pleadings, the court below shall give an opportunity to the other side to be heard in that matter and if it is found to be allowable, the court below shall pass orders in accordance with law. The court below shall start trial of the case on 12.11.2018 and before that date, the pre-trial steps should be finished. The document produced by the appellant before this Court under Order 41 Rule 27 CPC shall be permitted to be taken back and it may be produced FAO.No. 42 of 2018 4 before the trial court, if the appellant so chooses.
All pending interlocutory applications will stand dismissed.
Sd/-
A.HARIPRASAD JUDGE