M.R. Hariharah Nair, J.

The counter petitioners in O.S. No. 6/98 of the District Court, Thiruvananthapuram are aggrieved that notwithstanding serious objection raised by them with regard to the maintainability of the said proceeding, the court has decided it in favour of the plaintiffs.

2. The contention raised by the present petitioners was that at the time when the suit was instituted on 30.5.1998, the Trade Mark relied on by the petitioner, namely, 'Maveli' had not been registered and that as such the proceeding brought forth invoking S.27(1) of the Trade and Merchandise Marks Act, 1958 was not maintainable.

3. The plaintiffs stated in answer to the contention that trade mark has already been applied for and also that the petition is filed not merely based on S.27(1) and that the pleadings available in the plaint, read as a whole, would show that it is filed under S.27(2) as well in which case there will be no bar for want of required registration.

4. I have heard both sides and reliance was heavily placed on case law by both sides.

5. The points that arise for decision are:

(1) Whether the suit as brought forth is under S.27(1) of the Trade and Merchandise Marks Act, 195