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NON-REPORTABLE IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL No(s). 5775 OF 2019 (Arising out of SLP(C)No.2910 of 2016)

U.C. SURENDRANATH                                  Appellant(s)

                               VERSUS

MAMBALLY’S BAKERY                                   Respondent(s)

J U D G M E N T

BANUMATHI, J.

Leave granted.

2. This appeal arises out of judgment and order dated 05th

January, 2016 passed by the High Court of Kerala at Ernakulam

in FAO No.2 of 2016 in and by which the High Court has affirmed

the order of the Trial Court passed under Order XXXIX Rule 2A

of the C.P.C. and also the sentence of imprisonment of one week

imposed upon the respondent.

3. Brief  stated  facts  are  as  under.   The  respondent-

Mambally’s  Bakery  filed  a  suit  for  permanent  injunction

restraining the appellant from passing off the goods by using

respondent’s trade mark “Mambally’s Bakery” or any other trade

mark deceptively identical or similar to the respondent’s mark

and also to restrain the appellant from wrongfully selling the

product using the trade mark “Mambally’s Bakery”.  The Trial

Court  vide  Order  dated  04.11.2015  granted  the  interim

injunction  and  the  same  was  served  upon  the  appellant  on

09.11.2015.  In the said suit the Trial Court appointed an

advocate  Commissioner  who  inspected  the  appellant’s  shop  on

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07.11.2015 and submitted a report on 26,11.2015 wherein the

Commissioner stated that the appellant is conducting the bakery

and tea shop business and tea cakes and masala cakes are sold

using  respondent’s  trade  mark  “Mambally’s  Bakery”.   The

Commissioner has also pointed out that a big hoarding with the

name “Mambally’s Bakery” has been displayed in front of the

appellant’s shop.  Based on the Commissioner’s report, upon

perusal of the averments made in the counter affidavit and also

hearing the parties, the Trial Court came to the conclusion

that  there  is  a  willful  disobedience  on  the  part  of  the

appellant  and  directed  that  the  appellant  be  sentenced  to

undergo  imprisonment  for  one  week.   Being  aggrieved,  the

appellant has preferred appeal before the High Court which came

to be dismissed as aforesaid in para (2).

4. We  have  heard  Mr.  P.V.  Surendranath,  learned  senior

counsel  appearing  for  the  appellant  and  Mr.  P.B.  Suresh,

learned counsel appearing for the respondent and also perused

the impugned judgment and materials on record.

5. By perusal of the impugned judgment and also the order of

the Trial Court, it is seen that the Commissioner has inspected

the  appellant’s  premises  on  07.11.2015;  whereas  the  interim

order was served on the appellant on 09.11.2015.  On the date

of inspection i.e. 07.11.2015 the Commissioner has noticed that

all the tea cakes and masala cakes prepared were covered having

trade mark “Mambally’s Bakery”.  Since the interim order was

served on the appellant only on 09.11.2015 whatever was noticed

by the Commissioner on 07.11.2015 cannot be in violation of the

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interim order, much less willful disobedience.   

6. At the request of the respondent, the Commissioner again

inspected the appellant’s shop on 20.11.2015.  It is to be

pointed out that on his second visit, the Commissioner noted

that the sale of tea cakes and masala cakes prepared, were

without “wrappers/labels” meaning thereby that on the date of

second visit of the Commissioner the appellant was not using

the mark of the respondent “Mambally’s Bakery”.  During the

second  visit,  of  course,  the  Commissioner  noted  that  the

hoarding  “Mambally’s  Bakery”  was  displayed  in  front  of  the

appellant shop was not removed.  In this regard, the appellant

has offered his explanation stating that since the hoarding is

situated at height of 13 feet and also due to the scarcity of

the labour force, he could not immediately remove the hoarding.

Mr. P.V. Surendranath, learned senior counsel appearing for the

appellant, has submitted that the appellant is 40% disabled and

he was incapacitated from climbing up and removing the hoarding

by himself.   

7. For finding a person guilty of willful disobedience of the

order under XXXIX Rule 2A C.P.C. there has to be not mere

“disobedience” but it should be a “willful disobedience”.  The

allegation  of  willful  disobedience  being  in  the  nature  of

criminal  liability,  the  same  has  to  be  proved  to  the

satisfaction of the court that the disobedience was not mere

“disobedience” but a “willful disobedience”.  As pointed out

earlier, during the second visit of the Commissioner to the

appellant’s shop, tea cakes and masala cakes were being sold

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without  any  wrappers/labels.   The  only  thing  which  the

Commissioner has noted is that “non removal of the hoarding”

displayed  in  front  of  the  appellant’s  shop  for  which  the

appellant has offered an explanation which, in our considered

view, is acceptable one.  

8. In the facts and circumstances of the case, we do not find

any  “willful  disobedience”  on  the  part  of  the  appellant

warranting  invoking  Order  XXXIX  Rule  2A  of  the  C.P.C.  and

sentencing the appellant to one week civil imprisonment.

9. Accordingly,  the  impugned  order  is  set  aside  and  this

appeal  is  allowed.   Since,  O.S.NO.1  of  2015  is  pending

consideration, the Trial Court shall proceed with the said suit

and dispose of the same as expeditiously as possible.  We make

it clear that we have not expressed any opinion either on the

merits of the matter or the contentions raised by the parties.

There shall be no order as to costs.     

..........................J.                 (R. BANUMATHI)

..........................J.         (A.S. BOPANNA)

NEW DELHI, JULY 22, 2019.