Evidence contrary to the terms of agreement are not reliable.

S.S. Subramani, J.

Petitioner in O.P.No.358 of 1982, on the file of this Court, is the appellant. The petition was filed for rectification of the Register or removal of the registered trademark, under Sec.56 read with Sec.107 of the Trade and Merchandise Marks Act, 1958.

2. The allegations in the petition are that the petitioner has been manufacturing and selling tiles by using the trade mark of ‘Umbrella’ from January, 1976. It has applied for registration of its Trade Mark consisting of the device ‘Umbrella’ on 20.12.1980 claiming user from January, 1976 and the same is pending consideration. It is further averred that one Messrs. Eastern Clay Works, Sudarsan Building, Calicut had filed O.S.No. 3 of 1982 on the file of the Additional District Court, Trichur against the appellant herein (petitioner) for the issue of a permanent injunction restraining the petitioner, its servants or agents from manufacturing and selling tiles with the Trade Mark consisting of the device ‘Umbrella’ and other reliefs. It is said that Messrs. Eastern Clay Works claimed themselves as lessees under Messrs. Sudarsan Trading Company, Calicut who are the registered proprietors of the trade mark in respect of the tiles under No.2763. It is further said that the plaintiff therein has filed an application for impleading Messrs. Sudarsan Trading Company as second plaintiff wherein it has also been said that it has been doing business of manufacturing tiles, on lease, under the trade mark consisting of the device ‘Umbrella’ from Messrs. Faroke Tile Works. It is said that from the averments in the plaint, Messrs.Sudarsan Trading Company has allowed the registered trade mark to be used by Messrs. Eastern Clay Works.

3. The following grounds have been made for the purpose of rectification of the Register by removing the name of the first respondent from the Register. (1) That Messrs. Sudarsan Trading Company has been guilty of improper assignment or transmission of the registered trade mark in favour of Eastern Clay Works, Calicut. (2) Messrs. Eastern Clay Works have not applied to the Registry notifying their assignment in terms of Secs.41 and 44 of the Trade and Merchandises Marks Act, 1958. (3) By parting away with the Trade Mark rights in favour of Messrs. Eastern Clay Works, Messrs. Sudarsan Trading Company has not been using the mark registered by them and on the ground of non-user, the registration is liable to be cancelled in terms of Sec.46 of the Trade and Merchandise Marks Act, 1958. (4) No application has been made by both the parties, i.e., Messrs. Sudarsan Trading Company and Messrs. Eastern Clay Works, notifying the assignment in terms of Sec.49 of the Trade and Merchandise Marks Act, 1958. (5) Only the registered user is entitled to maintain a suit against the petitioner (appellant herein) and inasmuch as Messrs. Eastern Clay Works is not the registered user of the Trade Mark in question, the petitioner, as the aggrieved person, is entitled to maintain the petition for rectification in terms of Sec.56 of the said Act. (6) The trade mark registered in the name of the first respondent, namely, Messrs. Sudarsan Trading Company is liable to be removed on account of dishonesty on the party of the first respondent and in public interest.

4. On the above allegations, it wanted cancellation or expunging the registered trade mark with the device ‘Open Umbrella’ under No.2763 registered in the name of Messrs. Sudarsan Trading Company from the Register of the second respondent, and for consequential reliefs.

5. A detailed counter affidavit has been filed by the first respondent, namely, Messrs. Sudarsan Trading Company Limited, wherein it is said that it is a company duly incorporated under the Companies Act, 1956, having its Registered Office at Sudarsan Building, Calicut. The allegation that the appellant had been using the device ‘Umbrella’ from January, 1976, is denied. It is further said that whatever use the petitioner has made of the