IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN WEDNESDAY, THE 21ST JANUARY 2009 / 1ST MAGHA 1930 WP(C).No.2265 of 2009 (T) -------------------------------- OS.15/2006 of DISTRICT COURT,TRIVANDRUM .................... PETITIONERS: ---------------- 1. SATHEESAN, AGED 48 YARS, RESIDING AT "LATHIKA BHAVAN" KALLAMPALLYM SREEKARIYAM, THIRUVANANTHAPURAM. 2. MOHANAN, AGED 47 YEARS, SEA AND BAKERY, LIGHT HOSE, BEACH, KOVALAM. BY ADV. SRI.VPK.PANICKER RESPONDENTS: ------------------ 1. HOTEL SEAVIEW PALACE & SANTANA RESTAURANT, LIGHT HOUSE, BEACH ROAD,KOVALAM REP. BY MANAGING PARTNER CHANDRAN. 2. CHANDRAN.N., S/O. SADAVIVAN, AGED 41 YEARS, RESIDING AT T.C. X/1980, THOZHUVANCODE, VATTIYOORKAVU P.O. THIRUVANANTHAPURAM, MANAGING PARTNER OF 1ST RESPONDENT. 3. CHANDRASEKHARAN.V.AGED 48 YEARS, RESIDING AT RAJESH BHAVAN, T.C.X/2071, THOZHUVANCODE,KANJIRAMPARA P.O.THIRUVANANTHAPURAM. 4. SMT.VISWAMMA SHYLAJA, ABOUT 44 YEARS, RESIDING AT ASWATHY,BEACH ROAD, KOVALAM. 5. MR.VIJAYAN, AGED ABOUT 50 YEARS, RESIDING AT -DO- -DO- 6. RADHAKRISHNAN ALIAS PATTALAM, AGED 51 YEARS, SANTANA RESTAURANT BEACH ROAD, KOVALAM. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 21/01/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.P.BALACHANDRAN, J. ------------------------------------------------ W. P. C. No.2265 of 2009 ------------------------------------------------ Dated this the 21st day of January, 2009 JUDGMENT The grievance of the petitioners who are defendants 3, 4 and 5 in Ext.P4 suit namely O.S.15/06 on the file of the District Court, Thiruvananthapuram is that when the suit was being contested by them along with the first defendant, the plaintiff and the first defendant entered into a compromise under Ext.P7 compromise petition and accordingly Ext.P8 judgment was passed by the court below in terms of the compromise without removing defendants 3 to 5 from the party array; that therefore, they moved a review petition Ext.P9 in the court below for review of the said judgment passed on compromise in the suit to their exclusion and that the court below has dismissed the said petition by Ext.P10 order. W. P. C. No.2265 of 2009 -2- 2. It is the grievance of the petitioners that the court below in Ext.P10 order has observed that the petitioners have no independent right to use the name other than the rights to use the name as permitted by the first defendant and they are not entitled to claim benefit of the compromise as they have no independent right over the name “Santana Restaurant” and if at all the compromise entered into by the first defendant with the plaintiffs is against the interest of the petitioners and against the agreement entered into by them with the first defendant they can only sue for damages against them and that there is no illegality or impropriety in recording the compromise, as the petitioners have not filed any written statement in the suit and they have not claimed any independent right to use the name and even the documents produced by the petitioners will show that W. P. C. No.2265 of 2009 -3- they are only claiming right under the first defendant and that if the first defendant has no right to use the name “Hotel Seaview Palace and Santana Restaurant” then the petitioner cannot claim any independent right to use that name and therefore, there is no merit in the review petition as whatever right they claim is right under the first defendant who is claiming ownership over the name which was later rejected by the Trade Mark Registry, Chennai which paved the way for compromise being entered into between the plaintiffs and the first defendant. 3. On perusing the order passed by the court below on the review petition, I am also of the view that the rights of the petitioners are not affected by the compromise. However, if they establish any independent right in them other than the right claimed under the first defendant it goes without saying that W. P. C. No.2265 of 2009 -4- the compromise between the plaintiffs and the first defendant will not be binding on the petitioners if their claim is not under the first defendant. 4. With these observations, this Writ Petition is disposed of. K.P.BALACHANDRAN, JUDGE kns/-