Soby George vs “Kalabhavan” on 3 November, 2010

       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

OP(C).No. 544 of 2010(O)


1. SOBY GEORGE, AGED 42 YEARS,
                      ...  Petitioner

                        Vs



1. "KALABHAVAN", COCHIN, A SOCIETY  REGD.
                       ...       Respondent

                For Petitioner  :SRI.T.M.RAMAN KARTHA

                For Respondent  : No Appearance

The Hon'ble MR. Justice THOMAS P.JOSEPH

 Dated :03/11/2010

 O R D E R
                    THOMAS P.JOSEPH, J.
            ====================================
                     O.P(C) No.544 of 2010
            ====================================
         Dated this the 03rd  day of November,     2010


                        J U D G M E N T

Defendant in O.S. No.610 of 2009 of the court of learned

Principal Sub Judge, Ernakulam is the petitioner before me. He

seeks a direction to the learned Sub Judge to hear maintainability

of the suit as a preliminary issue. Respondent has sought for

recovery of money allegedly being arrears of licence fee based on

an agreement dated 01.06.2004, memorandum of understanding

dated 28.07.2006 and on account of sale of a bus, musical

instruments, equipments, etc. According to petitioner the suit

itself is not maintainable for the reason that claim made in the

plaint arises out of a right relating to trade mark which under

Section 134 of the Trade Marks Act, 1999 can be instituted only

before the District Court and also for the reason of suit being

barred under Section 11 of the Code of Civil Procedure (for short,

“the Code”) in view of decision in O.S. No.41 of 2007 of the court

of learned Additional District Judge-II, Ernakulam which is under

challenge in this Court in R.F.A. No.307 of 2008. According to the

learned counsel notwithstanding the above contentions raised in

O.P(C) No.544 of 2010
-: 2 :-

the written statement and a request to decide maintainability of

the suit as a preliminary issue learned Sub Judge has proceeded

to pass Ext.P12, order appointing a Commissioner.

2. I am not called upon, and I do not also find reason to

interfere with Ext.P12, order in this proceeding. Grievance of

petitioner is that maintainability of the suit in spite of having been

raised in the written statement has not been considered by the

learned Sub Judge. Learned Sub Judge is directed to consider

maintainability of the suit on the plea raised by petitioner in the

written statement if it attracted Rule 2(2) of Order XIV of the Code

and if, having reference to that provision it is possible to decide

maintainability of the suit raised by the petitioner as a preliminary

issue, and, if so, pass appropriate orders on the issue.

Original Petition is disposed of with the above direction.

THOMAS P. JOSEPH, JUDGE.

vsv