The main legal point established in the judgment is the importance of evidence in determining the generic nature of trade names and the criteria for establishing a prima facie case for passing off.

1. - This appeal has been preferred under Section 104 read with Order 43 Rule 1 CPC against the impugned order dated 21.12.2013 passed by Additional District Judge No.4, Jaipur Metropolitan, Jaipur in Civil Misc. Case No. 115/2013 whereby application under Order 39 Rule 1 and 2 CPC has been dismissed.

2. The short facts of the case are that appellant firm filed a Civil Suit for declaration, permanent injunction and damages against the respondents. Along with the civil suit, application under Order 39 Rule 1 and 2 CPC has also been filed. It has been pleaded in the application that appellant firm is running the business of manufacturing and selling gems and jewellery in the name and style of The Gem Palace uninterruptedly since 1852 and he has a registered office at MI Road, Jaipur. The firm is engaged in the business since 1852 and firm enjoys huge reputation and he has acquired a goodwill over the years in the line of Jewellery business not only in India but abroad also. The firm was duly registered on 5.11.1964 under the provisions of Indian Partnership Act, the respondent No.1 was also the partner of the firm who has retired from the firm on 25.1.2012 and a deed of retirement has been executed and in Clause 7, it has been stated as under:-

"The Retiring Partner agrees and undertakes that he will not use the name of the Firm, or any name similar resembling the name "The Gem Palace" at any time after retiring from this firm."

3. To the utter surprise of the appellant, Sudhir Kasliwal, a partner in the firm noticed a sign board outside the residence of respondent No. 1, 3 and 4, i.e. B-6, A-2, Prithvi Raj Road, Jaipur wherein it has been stated "Kasliwal Gem Palace Jewellers since 1852". A notice was served on the respondents. Further, the appellant had discovered that respondents are working and had registered a company using similar name with the trade name of appellant i.e. "Kasliwal Gem Palace Pvt. Ltd." Again a notice was served on the respondents but with no avail. They are also using the same packings used by the appellant, the respondents are using the name and style of the appellant, hence a suit for passing off the appellants firm tradename as well as for infringement of the same has been filed but the court below has dismissed the application only on the ground that two trade names are not similar, hence this appeal.

4. The contention of the respondents is that no error has been committed by the court below and application under Order 39, Rule 1 and 2 Civil Procedure Code has rightly been considered and rejected and the appellate court should slow in disturbing the reasonable findings arrived at by the court below. His further contention is that firm is not running since 1852. The firm was registered on 5.11.1964. The father of the respondent No.1 was also partner and after the death of his father G.C. Kasliwal, the present respondent was also party in the firm and he retired from the firm vide deed dated 25.1.2012. The Gem Palace is not a trade-mark and has not been registered. Respondents have not used the trade name of appellant neither it is similar in font, colour or style with the trade name of appellant firm. The respondents are running their business in the name of Kasliwal Gem Palace Pvt. Ltd. which is distinct from the name of the appellant firm. His company has been registered under the Companies Act. He never represented himself to be a partner of the appellant firm, after the retirement and he never allure any of the customers of the appellant firm. No case of passing off is made out. Many other firms in Jaipur are carrying on business in the name and style of Gem Palace, list of which has been brought on record in reply to the application in Para-6, hence no interference is needed.

5. Heard the learned counsel for the parties and perused the copies of the original documents placed by the counsel for the appellant.

6. The contention of the appellant is that they are prior users of the trade-mark and