Object 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH (149)

RFA-1291-2022 (O&M)

Date of decision: 29.10.2025 Dharampal and others ...Appellants Versus Devraj ...Respondent CORAM: HON'BLE MR. JUSTICE VIKAS BAHL Present: Mr. Sudhanshu Makkar, Advocate and Ms. Himani Makkad, Advocate, for the appellants.

Mr. Alok Mittal, Advocate and Mr. Harsh Vasu Gupta, Advocate, for the respondent.

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VIKAS BAHL, J. (ORAL)

This judgment has been divided into the following sections:-

CHALLENGE IN THE PRESENT APPEAL:-

1. Challenge in the present Regular First Appeal is to the judgment dated 17.10.2022 vide which the suit filed by the respondent/plaintiff for permanent injunction under the Trade Marks Act, 1999, was allowed and the defendants/present appellants were restrained from continuing the business of sale of sarees under the name and style of ‘M/s. Vimal Saree Palace’ or ‘Vimal Wadhwa Saree Palace’, as the said trade name/sign board deceived the public at large, since the respondent/plaintiff was running his business of sale of sarees under the name and style of ‘Bimal Saree Centre’ in close vicinity, much prior to the defendants, since the year 1980 and earned goodwill and reputation and the present appellants/defendants were able to pass off their goods as the goods of the plaintiff causing substantial loss to the plaintiff.

ARGUMENTS ON BEHALF OF THE APPELLANTS:

2. Learned counsel for the appellants has submitted that in the present case, vide order dated 12.03.2022, the application filed by the respondent-plaintiff under Order 39 Rule 1 and 2 was allowed and against the said order, defendant No.3/appellant No.3 had filed FAO No.1533 of 2022, which was decided on 08.04.2022 and a reading of the said order would show that since the present appellant had undertaken that he would change his trade name from ‘Vimal Saree Palace’ to ‘Vimal Wadhwa Saree Palace’ and had undertaken that he would not prominently display ‘Vimal’ as compared to other words and that the display board would have a different colour, design and appearance from the display board of the plaintiff and the order granting injunction was accordingly modified and subsequent to the passing of the said order, the present appellant has changed his trade name to ‘Vimal Wadhwa Saree Palace’, thus the original suit filed by the plaintiff was required to be disposed of as having become infructuous. It is submitted that after the passing of the said order, no amendment in the plaint was sought and no specific relief qua restraining the present appellant from continuing the business in the name and style of ‘M/s. Vimal Wadhwa Saree Palace’ was sought. It is submitted that the relief granted by the trial Court to the plaintiff was beyond the prayer made in the plaint.

3. Learned counsel for the appellants has next contended that a perusal of Exhibit P-27 and Exhibit P-28 would show that the colour of the display board of the shop of the respondent has changed, inasmuch as, in Exhibit P-27, the colour is navy blue, whereas in Exhibit P-28, the colour is light blue. It is submitted that PW-1, while appearing in the witness box had admitted that the colour of the boards kept changing everyday and thus, once it was the own case of the respondent-plaintiff that the colour of the Board changes it cannot be said that there is any visual deception. Learned counsel for the appellant has further made reference to Exhibit R-2 to show that at present, the board of the shop of the appellant has the trade name of ‘Vimal Wadhwa Saree Palace’ and all the bills/invoices etc. are also on the said name, thus, there is no possibility of any confusion or deception. It is submitted that at any rate, on account of the change of the trade name by the appellants, the suit of the plaintiff should have been dismissed.

4. The next argument of learned counsel for the appellants is to the effect that plaintiff-Devraj has himself not appeared in the witness box and the said Devraj had executed a power of attorney