Aruna Jagadeesan, J.

1. This writ petition relates to a two decades of long drawn legal battle for the ownership of a trade mark consisting of a word "NIRAPARA", a word in Malayalam which literally means "full measure". The said Trade mark, along with a device was applied for Registration in respect of food products viz. Maida, Suji and Atta (all are flours), falling under Class 30, by M/s Nirapara Roller Flour Mills Private Ltd, Changanacherry, Kerala (the third respondent herein), in Application No.543880 on 21.1.1991.

2. The applicant/third respondent initially applied in the name of South Kerala Food Process Pvt Limited, claiming as the user of the Trade Mark since March 1990. During the process of Registration, a request was made to amend the name of the applicant as "NIRAPARA ROLLER FLOUR MILLS LIMITED". The application for such registration of trade mark was advertised in the Trade Mark Journal dated 1.7.1996 as accepted.

3. On 17.9.1996, M/s. K.K.R. Modern Rice Mills, Kaladi, Kerala (the writ petitioner herein) lodged a notice of objection to the Registration of said Trade Mark under sections 11(a) (b) (e) of the Trade and Merchandise Marks Act 1958, equivalent to sections 11 (1), (2) and (3) of Trade Marks Act 1999 (hereinafter referred to as "Act"). M/s Nirapara Roller Flour Mills (hereinafter referred to as applicant/respondent), filed their counter on 20.5.1997 rebutting all the objections raised on the part of the writ petitioner herein.

4. Mrs. Ammini Karnan claimed to be the Proprietrix of M/s.KKR Modern Rice Mill (hereinafter referred to as opponent/Writ Petitioner) filed evidence in support of her opposition for registration of the said Trade Mark in the name of the applicant/third respondent. The sum and substance of her opposition is as follows:

1. In August 1975 Shri K.K.Karnan (husband of the opponent/writ petitioner) started his business in Rice and Rice products under the name and style of "M/s.K.K.Karnan and Company".

2. In June 1977, Shri K.K.Padmanabhan, brother of K.K.Karnan joined as a partner by the partnership deed dated 27.6.1977. In July 1977, M/s K.K. Karnan and Company was registered as Partnership Firm and in April 1988, the company adopted a Trade Mark "NIRAPARA" with a device.

3. In 1991, the said partnership firm with K.K.Padmanabhan as one of the partners was dissolved and the opponent/writ petitioner joined as a partner along with her husband and the business was continued under the new name "M/s.S.N.Rice Mills" and the Trade Mark "Nirapara" continued to be in the use of the said Firm.

4. In 1994, M/s KK.R. Modern Rice Mills was promoted as a propriety concern by the opponent/writ petitioner as its sole Proprietrix and both the concerns 'K.K.R.Modern Rice Mills' and 'S.N.Rice Mills' are functioning as sister concerns, engaged in the trade of rice and rice products, using the trademark "NIRAPARA" with a device.

5. On 21.1.1991, the applicant/third respondent filed an application to register "NIRAPARA" with a device as their trade mark, stating that practically from around April 1988 onwards, the trademark 'NIRAPA' has been in their use and on account of the continuous, long and extensive use of the said mark, the said mark has become exclusively and inextricably associated with their trade.

5. On the other hand, the applicant/ third respondent would claim that from 25.3.1990, they have been using the trade mark "Nirapara" and the claim of the writ petitioner is baseless. It is also submitted that even according to the writ petitioner, Shri K.K.Karnan was the prior user of the trade mark and not the writ petitioner.

6. However, the matter came up for hearing only on 28.5.2003. Meanwhile, the opponent/writ petitioner produced an assignment deed executed by Shri K.K. Karnan of S.N.Rice Mill, assigning the trade mark in favour of the writ petitioner.

7. Evidence was let in by way of affidavits on both sides. However, the enquiry could not be completed as there were interlocutory ap