- 1 - HC-KAR NC: 2025:KHC-D:8021 RFA No. 100493 of 2022 IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH DATED THIS THE 25TH DAY OF JUNE, 2025 BEFORE THE HON'BLE MR. JUSTICE HANCHATE SANJEEVKUMAR REGULAR FIRST APPEAL NO. 100493 OF 2022 (PAR/INJ) BETWEEN: MALLIKARJUN S/O. MAHANTAPPA CHITTARAGI, AGE: 57 YEARS, OCC: BUSINESS, R/O: WARD NO.2, TMC NO.383/D, GANJI PETH, A/P: GAJENDRAGAD, TQ: RON, DIST: GADAG-582 114. … APPELLANT. (BY SMT. RANJITA ALAGAWADI, FOR SRI KUSHAL N. KAMBALE, ADVOCATE.) AND: 1. M/S. M.Y. RAIBAGI AND SONS, AT POST: GAJENDRAGAD, TQ: RON, DIST: GADAG-582 114, REPRESENTED BY ITS MANAGING PARTNER, RESPONDENT NO.2. 2. BALACHANDRA S/O. MOTILASA RAIBHAGI, AGE: 59 YEARS, OCC: BUSINESS, R/O: GAJENDRAGAD, TQ: RON, DIST: GADAG-582 114. … RESPONDENTS (BY SRI C.S.SHETTAR, ADVOCATE.) THIS REGULAR FIRST APPEAL IS FILED UNDER SECTION 96 OF THE CIVIL PROCEDURE CODE, 1908, PRAYING TO SET ASIDE THE JUDGMENT AND DECREE DATED 27.04.2018, PASSED IN O.S.NO.1/2015, ON THE FILE OF THE LEARNED ADDITIONAL DISTRICT AND SESSIONS JUDGE, GADAG AND TO REMAND THE MATTER TO THE TRIAL COURT FOR FRESH CONSIDERATION AND ETC.,. Digitally signed by MALLIKARJUN RUDRAYYA KALMATH Location: HIGH COURT OF KARNATAKA DHARWAD BENCH - 2 - HC-KAR NC: 2025:KHC-D:8021 RFA No. 100493 of 2022 THIS APPEAL COMING ON FOR ADMISSION THIS DAY, JUDGMENT IS DELIVERED THEREIN AS UNDER: ORAL JUDGMENT (PER: THE HON'BLE MR. JUSTICE HANCHATE SANJEEVKUMAR) This appeal is filed by the defendant challenging the judgment and decree dated 27.04.2018, passed by the Additional District and Sessions Judge, Gadag, in O.S.No.1/2015, whereby the suit filed by the plaintiffs was decreed. 2. Heard the arguments addressed by the learned counsels appearing for the respective parties and perused the trial Court records and the appeal papers. 3. For the purpose of convenience and easy reference, ranking of the parties is referred to as per their status before the trial Court. 4. The plaintiffs have filed suit for permanent injunction under section 134, 135 of the Trade Mark Act, 1999 and under section 38 of the Specific Relief Act, 1963, by pleading that plaintiff No.1 is a partnership firm and - 3 - HC-KAR NC: 2025:KHC-D:8021 RFA No. 100493 of 2022 plaintiff No.2 is a partner and are manufacturing and selling branded chewing tobacco and hand made branded beedies from 35-40 years all over the Karnataka State. The defendant with an intention to defraud the plaintiffs in the same logo and trademark of the plaintiffs business concern, with an ill intention to make resemblance of logo and trademark, the defendant is selling low standard quality products, thereby causing injury to the plaintiffs reputation and financial loss. Therefore, the plaintiffs have filed suit for permanent injunction. 5. The defendant though appeared through advocate and filed the written statement, but thereafter during trial the defendant remained absent and did not contest the suit by cross-examining the plaintiff and his witness and also by leading defence evidence. Therefore, the trial Court after considering the oral and documentary evidence of the plaintiffs has decreed the suit with costs, thereby restrained the defendant from using resembled trademark as that of the plaintiffs and selling the products resembling to the plaintiffs logo and trademark. - 4 - HC-KAR NC: 2025:KHC-D:8021 RFA No. 100493 of 2022 6. Being aggrieved by it, the defendant has preferred appeal. 7. Learned counsel for appellant/defendant submitted that the defendant has engaged service of advocate and also filed the written statement, but later on he has retired from the case. Thereafter the defendant has engaged other advocate, but the other advocate has not filed vakalath and has not informed the stages in the suit and in the meantime the trial Court has decreed the suit and thereafter the defendant came to know that the decree is passed against the defendant and he tried to approach the advocate who has received vakalath from the defendant. But the advocate died during COVID-2019 without filing the vakalath. Therefore, under these circumstances the defendant could not contest the suit. Therefore, prays to remand the case to the trial Court by providing an opportunity to cross examine the plaintiff and also to lead defence evidence. - 5 - HC-KAR NC: 2025:KHC-D:8021 RFA No. 100493 of 2022 8. On the other hand, learned counsel for respondents/plaintiffs submitted that the defendant was deliberately absent before the trial Court just to harass the plaintiffs. Further submitted that the defendant does not have any registered logo or trademark. But the defendant with an intention to cheat the plaintiffs was carrying on business having resembled logo and trademark as that of the plaintiffs. Thus, defendant was causing injury to the reputation and financial loss. This is correctly appreciated by the trial Court. Therefore, it needs no interference by this Court and prays to dismiss the appeal. 9. After hearing the arguments of learned counsels appearing for both the sides, the points that arise for consideration in this appeal are as follows: i) Whether, under the facts and circumstances involved in the case, the matter requires to be remanded to the trial Court for giving an opportunity to the defendant to cross examine the plaintiff and the witness and to lead evidence of defendant? ii) Whether, under the facts and circumstances involved in the case, the - 6 - HC-KAR NC: 2025:KHC-D:8021 RFA No. 100493 of 2022 judgment and decree of the trial Court requires any interference by this Court? 10. Considering the submission made by the learned counsel for appellant/defendant that the defendant had engaged service of an advocate and filed the written statement, but later on the advocate was retired. Thereafter, the defendant engaged second advocate by executing vakalath, but the said second advocate has not filed vakalath and has not contested the suit and this fact of non filing of vakalath and non appearing in the suit was not known to the defendant. But in the meantime, the trial Court has passed the judgment and decree. Thereafter the defendant came to know about passing of the decree, at the time of trial of a criminal proceedings initiated by the plaintiffs. Therefore, under these circumstances, the defendant did not contest the suit. 11. Learned counsel for appellant/defendant submitted that when the defendant had engaged service of second advocate, the said advocate did not file vakalath and without filing vakalath he died during COVID-2019 in the - 7 - HC-KAR NC: 2025:KHC-D:8021 RFA No. 100493 of 2022 year 2020. If this could be believed as per submission made by the learned counsel for appellant, then, an opportunity is to be given to the appellant/defendant for contesting the case. Admittedly the defendant has not cross examined the plaintiff and also the defendant has not led evidence. Whether the defendant has also got registered the logo and trademark, is a question to be considered during trial. But for the lapses committed by the defendant, the plaintiff shall not be suffered. Therefore, this Court is of the opinion to remand the case to the trial Court for fresh consideration and since there is no lapse on behalf of plaintiffs and the remand is at the request of the defendant, therefore, the defendant shall pay a cost of Rs.1,50,000/- to the plaintiff as compensatory cost. Therefore, the matter is to be remanded. Accordingly the judgment and decree is liable to be set aside, remanding the case to the trial Court for fresh consideration giving an opportunity to the defendant to cross examine the plaintiff and his witness and also to lead evidence either oral or documentary or both. Therefore, the - 8 - HC-KAR NC: 2025:KHC-D:8021 RFA No. 100493 of 2022 points No.1 and 2 raised for consideration in this appeal are answered in the affirmative. 12. In the result, I proceed to pass the following: ORDER i) The appeal is allowed with cost of Rs.1,50,000/-. ii) The judgment and decree dated 27.04.2018, passed by the Additional District and Sessions Judge, Gadag, in O.S.No.1/2015, is hereby set aside. iii) Cost of Rs.1,50,000/- (one lakh fifty thousand rupees only) shall be paid by the defendant to the plaintiff. iv) The matter is remanded to the trial Court for fresh consideration. v) Both the parties are at liberty to adduce further evidence, if so they desire. vi) If the defendant fails to pay cost of Rs.1,50,000/- within three months to the plaintiff, then the judgment and decree passed by the trial Court would revive. - 9 - HC-KAR NC: 2025:KHC-D:8021 RFA No. 100493 of 2022 vii) The trial Court shall dispose of the case as early as possible within a period of six months from the date of appearance of the parties. viii) Both the parties shall appear before the trial Court on 15.07.2025 without awaiting for any notice from the Court. Sd/- (HANCHATE SANJEEVKUMAR) JUDGE MRK CT:BCK LIST NO.: 1 SL NO.: 29