IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE P.BHAVADASAN MONDAY, THE 25TH MAY 2009 / 4TH JYAISHTA 1931 FAO.No. 30 of 2004() -------------------- AGAINST THE ORDER DATED 09/01/2004 IN IA. 3259 /2003 IN OS.53/2003 of THE DISTRICT COURT, ERNAKULAM APPELLANTS/PLAINTIFFS: 1. KUTTUKARAN TRADING VENTURES, FORMERLY KNOWN AS POPULAR AUTOMOBILES, A PARTNERSHIP FIRM HAVING ITS OFFICE AT KUTTUKARAN CENTER, MAMANGALAM, COCHIN-682 025, REPRESENTED BY ITS PARTNER JOHN K. PAUL. 2. POPULAR VEHICLES AND SERVICES LATS., KUTTUKARAN CENTRE, MAMANGALAM, COCHIN-682 025, A COMPANY INCORPORATED UNDER THE COMPANIES ACT REPRESENTED BY ITS MANAGING DIRECTOR JOHN K. PAUL. 3. POPULAR AUTO SPARES PVT.LTD, KUTTUKARAN CENTRE, MAMANGALAM, COCHIN-682 025, A COMPANY INCORPORATED UNDER THE COMPANIES ACT, REPRESENTED BY ITS MANAGING DIRECTOR JOHN K. PAUL. 4. POPULAR INFOTECH, KUTTUKARAN CENTRE, MAMANGALAM, COCHIN-682 025, A PARTNERSHIP FIRM REPRESENTED BY ITS PARTNER JOHN K. PAUL. 5. POPULAR MEGA MOTORS (INDIA) LTD., DIRECTOR, KUTTUKARAN CENTRE, MAMANGALAM, COCHIN-682 025, A COMPANY INCORPORATED UNDER THE COMPANIES ACT, REPRESENTED BY ITS MANAGING DIRECTOR JOHN K. PAUL. BY ADV. SRI.T.R.RAVI FAO 30/2004 2 RESPONDENTS: RESPONDENTS: 1. MR. SAJU K. THOMAS, S/O. LATE K.P.THOMAS 32/1247 B, NEAR TELEPHONE EXCHANGE, KALAVATH ROAD, PALARIVATTOM, KOCHI-682 025. 2. SMT. SHEILA SAJU, W/O. SAJU. K. THOMAS, DO. 3. SMT.ELSY THOMAS, W/O. LATE K.P. THOMAS KUTTUKARAN HOUSE, KUNNATHUNKARA, THRISSUR - 680 655. ADV. SRI.P.SANTHALINGAM THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 25/05/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.R. RAMAN & P. BHAVADASAN, JJ. = = = = = = = = = = = = = = = = = = = = F.A.O. 30 OF 2004 = = = = = = = = = = = = = = = = DATED THIS, THE 25TH DAY OF MAY, 2009. J U D G M E N T Raman, J. This appeal arises out of an order in I.A. 3259/2003 in O.S. 53/2003 on the file of the District Court, Ernakulam. 2. The I.A. was filed seeking for a temporary prohibitory injunction. It was alleged by the petitioners that a business was promoted by K.P. Paul and and all the group together was called "Popular Group". "Popular Washing Home" was started by K.P. Paul in the year 1939 and later in 1944 he established "Popular Automobiles" which was converted into a partnership concern taking four of his brothers. Two of them died in 1966- 68. In 1971 the business was partitioned. The legal heirs of K.P. Chacko were allotted cash and immovable property. Another partner K.P. Varoo retired and he was allotted the firms at Bangalore and Kozhikode. There was an understanding between the firms and the retiring partners that they shall not commence business in the name "Popular" in the places where the FAO. 30/2004 :2: firm or its partners already had their business and vice versa. The firm was reconstituted in the year 1971 by inducting the sons of one of the deceased parter K.P. Paul and also the son of late K.P. Thomas, who is the first respondent, who at the relevant time was a minor and hence he was admitted into the benefits of the partnership. Later the partnership was dissolved in September, 1971 and the third petitioner carried on the business in the trade name "Popular Automobiles" from 1.10.1971 to 30.9.1974. The constitution and re-constitution of the firm continued on several occasions. The bye-laws of such re-constitution are not of relevant. 3. Suffice to say that the petitioners were contending that they have acquired exclusive right of the name "Popular" and the respondents are therefore to be restrained by a temporary injunction from using the word "Popular" for carrying on their business. It was contended by the contesting respondents that the petitioners were not using the word "Popular" in the business, that they have abandoned the word "Popular", that they cannot claim uninterrupted continuity in the word "Popular" and that there is no deception by the use of the name "Popular Motor Corporation" nor is there any colourful imitation of Popular Vehicles and Services Limited. On an analysis of the evidence in the case, the court below found that the word "Popular" has not been used by the petitioners FAO. 30/2004 :3: alone, but several other establishments have used the name "Popular" and the word "Popular" is a common word and therefore, no exclusive right as such can be claimed by the petitioner. Documents like Ext. B26, were also produced in support of the said contention. The word "Popular" without any distinctive character cannot be claimed to be a monopoly unless there are strong reasons for holding so. Therefore, at the time of considering whether injunction should be granted or not, unless there are materials produced in the case to show that there is a distinctive character in the word "Popular" used by the parties who seeks for an injunction, normally such injunction, at the intermediary stage, cannot be granted. 4. On a careful analysis of the materials now available on record, it cannot be said that the petitioners have established a case for granting a temporary injunction. Of course, the court below went on to discuss the entire evidence at length and many of the observations could be contended to be a finding that might adversely affect the final result of the suit. But we make it clear that the discussion of the evidence is for the limited purpose of considering the temporary injunction application and whatever finding or observations made by the court cannot adversely affect the right of either parties and the court below will consider the materials on record adduced by both the parties and come to an independent conclusion in the suit FAO. 30/2004 :4: untrammelled by the observations so made by the court below or made by us in this judgment. As a matter of fact, the order refusing the injunction was passed as early as on 9th January, 2004 and five years have elapsed thereafter. The purpose of seeking a temporary injunction is to keep the status quo and to prevent further harm apprehended. No interim order has been passed by this court. In such circumstances, we are not satisfied that this is a fit case where any temporary injunction could be granted. 4. Now it is submitted that the suit is already listed for hearing. If so, the court will dispose of the suit expeditiously, subject to what we have stated above. The appeal stands disposed of as above. P.R. RAMAN, JUDGE. P. BHAVADASAN, JUDGE. KNC/-