A suit for passing off arising out of the use of a trade name not registered under the Trade and Merchandise Marks Act, 1958, can be filed in the Court of the Subordinate Judge.

1. This is a regular second appeal filed by Ranjit Singh, defendant, against the judgment dated 9-4-1968 of the Senior Sub-Judge, Ludhiana, whereby he accepted the appeal of Jaswant Singh, plaintiff, against the decree dated 11-5-1967 of Sub-Judge, 1st Class, Ludhiana, dismissing his suit and passed decree in favour of the plaintiff for permanent injunction restraining the defendant, his servants and agents from using the plaintiff s trade name (business name)

"Ex-Soldiers Store" and dealing and doing the business of selling and offering for sale under that name and from using any material bearing the same name. The plaintiff was also granted decree for Rs. 75/- as damages. The parties were left to bear their own costs.

2. The facts of this case are that Jaswant Singh plaintiff and Ranjit Singh defendant were doing the business of purchase and sate of goods in the name and style of Messrs. R. J. Singh and Sons, Chaura Bazar, Ludhiana since September, 1946. This firm was dissolved on 1-7-1956 and the firm name was assigned to Ranjit Singh defendant. The plaintiff Jaswant Singh was to run his business under a different name, with which the defendant was not to have any concern. After the dissolution of the firm, the plaintiff started doing his own business as a dealer in military goods under the name and style of "Ex-Soldiers Store". The plaintiff established his trade and gained his reputation and his business flourished under the said name. The defendant got envious of the plaintiff s increasing business and with a view to cause harm to him and to obtain wrongful gain, started using the trade name of the plaintiff as a part of his trade name and he started passing off and selling his goods so as to lead the general public and customers into an impression as if these were the products and goods of the plaintiff. The changed trade name of the defendant-firm was "R. J. Singh, and Sons (Ex-Soldiers Store)". The plaintiff came to know of this practice of the defendant and he served him with a registered notice dated 3-8-1965 asking him to refrain from using his trade name, but he did not stop using plaintiff s trade name. The plaintiff, therefore, filed suit for permanent injunction restraining the defendant, his servants and agents from using his (plaintiff s) trade name (business name), namely, "Ex-Soldiers Store" and dealing and doing the business in the said name and from selling and offering for sale goods in that name and asking him to destroy all bills, receipts and records etc., bearing the said name. He also claimed Rs. 100.00 as damages from the defendant.

3. The suit was contested by the defendant. He pleaded that after the dissolution of his firm with the plaintiff, he started doing business under the name and style of R. J. Singh and Sons (Ex-Soldiers Store). He denied all other allegations made in the petition. On these pleadings of the parties, the following issues were framed by the trial Court :-

(1) Whether the plaintiff has an established trade name under the name and style of "Ex-Soldier Store ?"

(2) Whether the defendant is or has used the name under Issue No. 1 lawfully ?

(3) Whether the suit for account is maintainable ?

(4) If Issue No. 3 is proved, to what damages, if any, is the plaintiff entitled from the defendant ?

(5) Whether the plaintiff is entitled to the injunction prayed for ?

(6) Relief.

The trial Court decided Issues Nos. 1. 3, 4 and 5 against the plaintiff and decided Issue No. 2 in favour of the defendant. As a result, the suit of the plaintiff was dismissed with no order as to costs. Feeling dissatisfied, the plaintiff filed an appeal against the decree in the Court of the Senior Sub-Judge, Ludhiana. The Senior Sub-Judge held that the plaintiff established his trade under the name and style of "Ex-Soldiers Store" and that the defendant is not proved to have lawfully used that name and the plaintiff is entitled to the injunction prayed for. He reversed the findings of the trial Court o