IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 19TH JULY 2010 / 28TH ASHADHA 1932 WP(C).No. 17184 of 2010(O) -------------------------- OS.2/2008 of ADDL. DISTRICT COURT-II, KOZHIKODE .................... PETITIONER: --------------- M/S.AL BAKE ARABIC RESTAURANT, ALPHONSA BUILDING, MAVOOR ROAD, CALICUT-673 004, REP.BY ITS PARTNER M.ABDUL RASHEED, AGED 30 YEARS, S/O.MOOSAKOYA HAJI. BY ADV. SRI.N.M.MADHU SMT.C.DEVIKA RANI KAIMAL RESPONDENTS: --------------- 1. ALBAIK PALACE REP.BY ITS PROPRIETOR, M.MOIDEEN KUTTY, MANKARA THODY HOUSE, EDAPALAYAM, PATTERKADU P.O., MALAPPURAM DISTRICT. 2. M/S.HOTEL GOLDEN AL-BAKE, BYE-PASS ROAD, PANTHEERANKAVU, CALICUT-19, REP.BY ITS PARTNER ASSAINAR.M. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 19/07/2010, ALONG WITH WPC NO. 22264 OF 2010 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P JOSEPH, J. ---------------------------------------- W.P.C.Nos.17184 and 22264 of 2010 --------------------------------------- Dated this 19th day of July, 2010 JUDGMENT These revisions are in challenge of Exts.P7 and P3, orders in O.S.Nos.2 and 4 of 2008, respectively of the court of learned Additional District Judge-II, Kozhikode. Respondent No.1 in W.P.C.No. 17184 of 2010 (it is the sole respondent in W.P.C.No.22264 of 2010) filed O.S.Nos.2 and 4 of 2008 for a decree for prohibitory injunction against petitioners herein using the trade mark which according to the respondent are deceptively similar to the trade mark it has been using from 1997 onwards and regarding which it obtained registration in the year 2004. Petitioners denied that respondent has been using the trade mark from 1997 onwards. They also denied claim of respondent regarding registration of the trade mark. According to them, they are using the respective trade mark' attributed to them since the year 2001 and 2003, respectively. Respondent filed application in both the suits for its joint trial which learned Additional District Judge vide Exts.P7 and P3, orders (respectively in these writ petitions) has allowed though after observing that the evidence petitioners have to adduce may be W.P.C.Nos.17184 and 22264 of 2010 : 2 : different. Learned counsel for petitioners contend that there is nothing in common on fact or law, evidence to be recorded is entirely different and hence learned Additional District Judge was not correct in allowing joint trial. Learned counsel have placed reliance on the decisions in Chithalan Vs. C. Ammu Amma and Ors. (1968 KLJ 123), Ebrahim Ismail Kunju Vs. Phasila Beevi (1991(1) KLT 861) and State Bank of India Vs. Ranjan Chemicals Ltd. And Anr. (2007(1) SCC 97). It is also pointed out that if the suits are tried jointly there is possibility of the same judgment being delivered in both the cases. 2. Case of respondent is that it is engaged in restaurant and catering service business using the trade mark 'ALBAIK PALACE', it has been using that trade mark from 1997 onwards and got it registered in the year, 2004. Petitioner in W.P.C.No.17184 of 2010 is using the trade mark 'AL BAKE ARABIC RESTAURANT' while petitioner in W.P.C.No.22264 of 2010 is using the trade mark ‘M/s. HOTEL GOLDEN AL-BAKE’. It is the contention of respondent that trade marks being used by the petitioners are deceptively similar to the trade mark of respondent and hence petitioners are to be injuncted from doing so. Learned Additional District Judge has ordered joint trial of the W.P.C.Nos.17184 and 22264 of 2010 : 3 : two suits though, it is observed that evidence which petitioners have to adduce is different. Now the question is whether joint trial ordered is justifiable. In Chithalan Vs. C. Ammu Amma and Ors. (supra) as seen from paragraph 10 of the judgment there was no similarity between the two cases involved and the reliefs prayed for. It is observed that subject matter of the petitions were totally different. Relief prayed for also were different. Ebrahim Ismail Kunju Vs. Phasila Beevi (supra) related to proceedings where question of joint trial was raised. Considering the facts and circumstances of the case it was held that joint trial was not permissible. In State Bank of India Vs. Ranjan Chemicals Ltd. And Anr. (supra) relied on by learned counsel for petitioner, it is stated in paragraphs 10 and 11 that “joint trial can be ordered if it appears that some common question of law or fact arises in both proceedings or that right to relief claimed in them are in respect of or arise from the same transaction or series of transactions or that for some other reasons it is desirable to make an order of joint trial”. The same view has been taken in Prem Lala Nahata Vs. Chandi Prasad (2007(1) KLT 910 (paragraphs 13 and 15)). Thus, if there is some common question of law or fact or, if or some other reason W.P.C.Nos.17184 and 22264 of 2010 : 4 : it is desirable to conduct a joint trial it is within the power of court to do so. Here, though trade marks allegedly being used by petitioners are among themselves different, according to the respondent they are deceptively similar to the trade mark 'AL BAKE PALACE' it is using from 1997 onwards and got it registered in the year 2004 and hence petitioners are not entitled to use the trade marks which they are using. In both the cases a common question arises whether respondent has been using its trade mark from 1997 onwards and got it registered in the year 2004. This assumes importance in the light of contentions raised by petitioners that they are using their respective trade marks from 2001 and 2003 onwards. Respondent has to adduce the same evidence in both the cases regarding its user of the trade mark from 1997 onwards and about its registration in the year, 2004. If the suits are tried separately there is possibility of divergent findings being entered in respect of the said claims of respondent. On the other hand, if the suits are tried jointly such a situation can be avoided. No doubt, the trade marks being used by petitioners are different and the question of its similarity or deceptive similarity with the trade mark of respondent are different and separate evidence in that regard is quite possible W.P.C.Nos.17184 and 22264 of 2010 : 5 : and natural. But as pointed out in the decisions cited supra, if some common question of fact or law is involved in the two cases, joint trial is justified. I am not inclined to think that the decision the court below may take in one case may influence the process of decision making in the other case. Having heard counsel for petitioners and gone through the impugned orders I do not find reason to interfere with the said orders directing joint trial of the suits. Writ petitions are dismissed. (THOMAS P JOSEPH, JUDGE) Sbna/-