The defendants in O.S.No.2/2004 on the file of the Addl. District Court, Kozhikode are the appellants in this appeal filed under Order 43 Rule 1 (r) of C.P.C.

2. The aforementioned suit filed by the respondent herein is one for a perpetual injunction restraining the defendants and their men from using the words 'Sagar Inn' and particularly using the name 'Sagar' denoting the name of the concern shown as the second defendant and also from using the word 'Sagar' written in the same mode and style as has been done by the plaintiff from 1978 onwards in its sign boards, hoardings, bills, visiting cards and advertisement etc. or using such other name or service as is deceptively similar to "Hotel Sagar" of the plaintiff for denoting the 2nd defendant or any hotel or restaurant or any other concern of the first defendant.

3. As per I.A.1178/2004 the respondent/plaintiff also prayed for a temporary injunction in terms of the aforesaid prayer in the plaint The court below after hearing both sides as per order dated, 25-9-2004 confirmed the ad-interim injunction already granted. It is the said order which is assailed in this appeal.

4. Advocate Sri K. Ramakumar, the learned counsel appearing for the appellants/defendants made the following submissions before me in support of the appeal:

The long and short of the plaint allegations amount to a complaint of passing off by a hotel situated in Calicut City against a restaurant situated about 50 kms. away at Marjeri. Such a suit for passing off instituted in a court at Calicut against a restaurant in Manjeri will not lie in the Calicut court under the Trade Marks Act, 1999. The present suit is one falling under Clause (c) of sub-section (1) of Sec. 134 of the Trade Marks Act. While in the case of a suit for infringement of a registered trademark covered by Clause (a) of the aforesaid Sec.134 (1) and a suit relating to any right in a registered trade mark covered by Clause (b) thereof, sub-section (2) of Sec. 134 specifically provides that such suit is to be instituted in the District Court within the local limits of whose jurisdiction the plaintiff resides or carries on business or personally works for gain, the said provision guardedly excludes suits such as the present one falling under Clause (c) of Sec. 134 (1) of the Act. In spite of that the suit in the present case has been instituted at Calicut where the plaintiff s concern is situated and not at Marjeri where the restaurant of the defendant is situated. Thus, the Calicut Court had no jurisdiction to entertain the suit; much less, pass the impugned order of injunction. On the merits also, the court below failed to see that while the plaintiffs concern is a hotel, the 1st defendant's concern is only a restaurant. The distinction between a hotel and a restaurant has been lost sight of by the court below. The plaintiff has no case that 'Hotel Sagar' is a restaurant. Many reputed hotels run their restaurants under different names. The word 'Sagar' is a common name over which the plaintiff cannot claim any exclusive right. The defendants have not adopted or copied the writing style of the plaintiff. The trade origin of 'Sagar Inn' restaurant is prominently displayed as a concern of Jaleel Associates in the advertisement in all the popular dailies produced as Exts.B-3 to B-12. It is common knowledge that Woodlands Hotels are run in various cities and towns by different owners and some are vegetarian while others are offering both vegetarian and non-vegetarian dishes and still the original owners of Woodlands Hotel have never complained. This is because nobody can claim any exclusive right to use that name. In the decision reported in Bharathiya Coffee Workers Catering Service (P) Ltd. v. Indian Coffee Workers Co-operative Society Ltd 1999 (1) K.L.T. 322, the claim for passing off by the Indian Coffee House was not upheld by this Court. The court below has virtually decreed the suit ignoring the balance of convenience and irreparabl