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DISTRICT JUDGE OF THRISSUR
Present:
Sri. K.P.Sudhir, Bsc.,LL.M., I Addl.District Judge,
Saturday, the 22nd day of August, 2015/31st Sravana,1937.S.E
ORIGINAL SUIT NO. 3/1997
Plaintiffs:
1. Pavunny, aged 68 years, S/o Kalan Ouseph, Nellayi desom,
Parappookkara Village, Mukundapuram Taluk, Thrissur
District (Died).
2. Jose, aged 39 years, S/o Kalan Pavunny, Nellayi desom,
Parappookkara Village, Mukundapuram Taluk, Thrissur
District.
3. Antony, aged 37 years, S/o Kalan Pavunny, Nellayi desom,
Parappookkara Village, Mukundapuram Taluk, Thrissur
District.
4. 'Kalan Pharmaceuticals' , Nellayi, Thrissur District
represented by its Managing Partner Antony.
5. Varghese, aged 37 years, S/o Kalan Pavunny, Nellayi desom,
Parapookkara Village, Mukundapuram Taluk, Thrissur
District.
(Plaintiffs No.5 amended as per the order in IA 2294/2000
dt.492000)
By Adv. Sri. Robson Paul & Adv. Sri. T.G. Krishnan.
Defendants:
1. K.L.Poly, aged 38 years, S/o Lonappan, Kalath House,
Nellayi desom, Parappookkara Village, Mukundapuram
Taluk, Thrissur District.
2. 'Kalans Pharmaceuticals', Nellayi desom, Parapookkara
Village, Mukundapuram Taluk, Thrissur District represented
by 1st defendant K.L.Poly, S/o Lonappan, Kalath House,
Nellayi desom, Parappookkara Village, Mukundapuram
Taluk, Thrissur District.
By Adv. Sri. P.R.Neelakandan Namoodiri.
This suit having been finally heard on 1082015 and having stood
over for consideration till this day, the court delivered the following:
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J U D G M E N T
The suit is filed under Order VII Rule 1 of the Code of Civil
Procedure and Section 105 of the Trade and Merchandise Act, 1958
defendants from passing off by sale and disposal of products under the
trade name 'Kalans Pharmaceuticals' and using the short form name 'Kalan
Pharma' which belongs to the 4th plaintiff firm and restraining the
defendants from receiving any letters or parcels addressed to 4th plaintiff
and also for mandatory injunction to surrender articles and boards made
in such a manner to pass off the medicines under the trade name “Kalan
Pharmaceuticals” or in any other manner affecting the goods and products
by the remaining plaintiffs and managing partner of the firm/4th plaintiff
who was later impleaded. It is contended that the plaintiff firm is running
business in ayurvedic medicines for the past 25 years and has secured
goodwill for its business. It is selling ayurvedic medicines in the country
products. The firm had applied for registration of the trade mark under
the Trade and Merchandise Act and secured a temporary registration. The
trade name and mark. The firm has been in use of the Kalan
The defendants and others have no right to use the same. But the
Rashtra Deepika identifying the 2nd defendant firm as Kalan Pharma. The
name used by the defendant in the advertisement is deceptively similar to
that of the plaintiff's firm. It is done with the idea to mislead the public
and to harass and trouble the business run by the plaintiffs. The 1 st
defendant himself had put up a board in front of his house with such
deceptive trade name regarding his business running the 2nd defendant
firm. A letter sent from Bombay to the plaintiff's firm was received by the
1st defendant purposefully with the idea to cheat and cause loss to the
plaintiffs. The right of the plaintiff is thus infringed. The defendants are
plaintiffs' products. Hence the suit.
statement disputing and denying the contentions of the plaintiffs. They
have challenged the maintainability of the suit and the identity of the 1st
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business by the plaintiffs is denied as false. The plaintiffs had not secured
any registration for the purported trade name or trade mark. Kalan
Dispensary, Kalan Brothers, Kalan Aaryavaidhya Pharmacy, Kalan Mathew
Memorial are not establishments in existence as claimed by the plaintiffs.
establishment called J.J Kalan Pharmacy, Kalan Drugs and Remedies. The
plaintiffs have no exclusive right to use any emblem, trade name or any
short name of Kalan Family. Defendants had not made any publication as
alleged. O.S.557/1994 was filed in Sub Curt, Irinjalakkuda for injunction.
Lonappan, the father of the 1st defendant had filed O.S.4/1978. The said
suit was decreed. AS.17/1988 was dismissed. The word Kalan is not
Veedu who found Kalan Ayurvedic Pharmacy in Nellayi. The said Ouseph
was the father of the plaintiff Pavunni and grandfather of plaintiffs 2 and
3 as well as 1st defendant. The products mentioned in the said pharmacy
got the name Kalan. A notification was made in this regard on 12.02.1952
in Travancore Cochin Government Gazette as to make it clear that Kalan
suit. It was found that Ouseph Vaidhyan had no right to conduct business
with the name Kalan. Interim injunction was granted in O.S.2/1957. But
the suit was dismissed in the year 1958 holding that 'Kalan' is not a family
children on 31.03.1965. In the year 1970 the firm was dissolved as per
document No.51/1973 due to disputes which arose in the year 1970. The
trade name 'Kalan, Kalans, Kalan Nellayi' were found in use in business
and right to use the said names was put in auction and Lonappan, the
father of the 1st defendant had bid the auction and purchased the trade
marks. Thus, Lonappan the father of the 1st defendant had exclusive right
to use the trade name and conduct business in the name Kalan and
emblem with the name Kalan. When the plaintiff started to use the trade
mark and name of Lonappan, the father of the 1st defendant, Lonappan
Vaidyar, Sakshal Kalan Vaidhan' and the suit was decreed as per judgment
dated 09.12.1987. The appeal was dismissed. The 2nd appeal is pending
27.12.1991 bequeathing the trade name, mark and emblem and good will
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favourable order. The 1st defendant is using the said trade name and
conducting business exclusively and others included in the plaint did not
have any right to do so. The 1st plaintiff Pavunni and fourth plaintiff firm
being defendants in O.S.4/1978 and the dispute and the subject matter in
the said suit and the present suit being the same, the present suit is not
maintainable (under the principle of res judicata). The 1st plaintiff himself
has affirmed when examined as DW1 in O.S.4/1978 that the name Kalan
sought for the dismissal of the suit.
3) The following are the issues raised:
1. Whether the suit is maintainable?
2. Whether the plaintiffs are entitled for permanent
prohibitory injunction as prayed for?
3. Relief and cost?
I.A.3640/1999 was filed and the trial of the suit was stayed under section
10 CPC. The stay was vacated as per the judgment of the Hon'ble High
Court in AS.17/1988, AS.355/2000, AS 483/2000 and CMA 59/2000 as
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per the common judgment dated 18.10.2011. The Hon'ble High Court was
pleased to direct expedite disposal of this suit. The case was again taken
up and the plaintiffs' side reportedly submitted no further evidence and
finding that the defendants were not effectively represented, the suit was
High Court dated 29.01.2015 in RFA.634/2012. The Hon'ble High Court
was pleased to order that the defendants had allowed to contest the suit
on payment of cost of Rs.10,000/ before 28.02.2015 and on payment of
the cost this court was directed to decide the suit afresh affording the
defendants an opportunity to adduce evidence. Time bound disposal was
ordered. Pursuant to the orders passed by the Hon'ble High Court the suit
was taken up. The defendants filed I.A.2413/2015 as to receive the copy
AS.355/2000, AS.483/2000 and CMA.59/2000 which were disposed by a
common judgment dated 18.10.2011 and contended that the present suit
decision on the said issue of maintainability in the light of the decision in
I.A.2413/15 denying and disputing the contentions raised. The certified
defendants. The certified copy of the judgment of the Hon'ble High Court
ated 18.10.2011 marked and tendered in evidence as Ext.B1. Both sides
heard. The documents marked in IA 3640/1999 are available in records
and are perused .
5) Issue: Whether the suit as such is maintainable ?
6) Issue: This suit is for a decree for permanent prohibitory
injunction against the defendants passing off their ayurvedic products in
the name of Kalans Pharmaceuticals or using any trade name Kalan, Kalan
I.A.3640/19999 in the suit for stay of trial of the suit u/s.10 of Code of
Civil Procedure on the ground that this court had passed decree in
O.S.4/1978 and the decree and judgment of the lower court had been
challenged before the Hon'ble High Court in appeal and that parties, and
subject matter involved in O.S.4/1978 are same and issues therein are
directly and substantially in issue in O.S.3/1997, the present suit. The
defendants thus wanted the stay of the sit till the disposal of AFA 64/1997
pending before the Hon'ble High court against the judgment and decree in
I.A.3610/1999 and the suit was stayed u/s.10 CPC until the disposal of
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the appeal AFA 64/1997 by the Hon'ble High Court.
7) AFA.64/1997 was filed against the dismissal of AS.17/1988 as
time barred. The records would reveal that the Hon'ble High Court had
judgment in O.S.4/1978 was set aside and a modified decree had been
using the words Kalans, Kalan Nellayi and the photo of Ouseph Vaidhan in
any notice, advertisement, pamphlet, leaflet, literature or carton of any
defendants in O.S.4/1978 were none other than the 1st plaintiff and 4th
plaintiff in O.S.3/1997 which is the present suit. The plaintiffs 2 and 3,
who are the children of the 1st plaintiff Pavunni are none other than the
partners of the 4th plaintiff firm. The plaintiff in O.S.4/1978 is none other
than the son of Lonappan, the plaintiff in O.S.4/1978. By the judgment in
injunction restraining the use of the word 'Kalan' independently and using
the words Kalans, Kalan Nellayi in any ayurvedic preparations or products
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O.S.4/1978 had been adjudicated and decided and decree had been
passed against the plaintiffs under O.S.4/1978. Thus it could be found that
the parties, the subject matter and issues in O.S.3/1997 were virtually the
substantially and directly the same as those in the suit in hand and it is
therefore found that the present suit O.S.3/1997 is barred by rule of res
judicata as stipulated u/s.11 of CPC. The Honourable High Court in Ex.B1
descendants of late Ouseph Vaidyan, a renowned Ayurvedic Physician and
manufacturer of a large number of Ayurvedic preparations, have been at
war with each other. More than concentrating on their avocation and
business, they seem to be far more concerned in litigating on issues which
credibility”. So the challenge against the maintainability of O.S.3/1997 in
the light of the adjudication and final decision in O.S.4/1978 as per the
judgment of the Hon'ble High Court dated 18.10.2011 in AS.17/1988 is
well founded. It is found that the present suit O.S.3/1997 is barred in the
17/1988 of the Hon'ble High Court. The suit OS3/1997 is therefore liable
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to be dismissed as that barred by rule of res judicata. It is found right to
order that the parties shall suffer their respective costs.
In the result, the suit is dismissed. No costs.
(Dictated to the Confidential Assistant, transcribed by her, corrected
by me and pronounced in open court on this the 22nd day of August,
2015).
Sd/
K.P.SUDHIR,
Additional District JudgeI
A P P E N D I X
Petitioner's Exhibits:
A1 : Rashtradeepika evening daily dt. 14.9.1994.
A2 : Cash Receipt of Sithara Studio, Nellayi.
A3 : Copy of Order in IA 2371/1994 in
OS 557/1994.
Petitioner's Witness:
PW1 : Antony.
Defendant's Witness : Nil
Defendant's Exhibits: Nil
Material Objects:
MO1series : Label of the product. Id/
Additional District JudgeI.
Copied by :sr
comp.by:krk (True copy)
By Order,
Sheristadar.
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Judgment in O.S.3/1997
Dated: 22.08.2015