LexSOHAN LAL AND OTHERS versus AMIN CHAND AND SONS AND OTHERS
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SOHAN LAL AND OTHERS
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AMIN CHAND AND SONS AND OTIIERS
(With connected appeals & petitions)
August 22, 1973
[K. K. MATHEW AND M. ff. BEG, JJ.)
453
Arbitratio11 Act (10 of 1940) Ss. 13(6), 14(3) and 39(1){ii)-0pinlo11 '"'
a question of law referred by arbitration to Court-If appeaiable.
Code of Civil Procedure (Act 5 of 1908), s. 107; 0.30, r. 4-Appea/ h
(lrm-Deatlr of partner-If appeal abates.
•
Code of Civil Proaedure (Art 5 of 1908), 0.47, r. 7-Reriew 011 merits--
Scope of appeal.
Certain trade marks \Vere registered in the name of two firms aitd one of
the partners gave notice of dissolu!ion of the two firms.
Thereafter, he filed
two suits for accounts.
While the suits were pending he died nnd his
leg1tl
representatives (.appellants) were impleaded.
The parties agreed to ref or th'
matter -to arbitration and before the arbitrators a question was raised whether
the legal representatives were entitled to continue the suits.
The
arbitrators
slated. a special case to the Court for its opinion under the first part of s. J3(h).
Arbitration Act, 1940.
Meanwhile, one of the firms filed a suit against
tht:
appellants in the names of the firms under which they (appellanls) were trad·
ing. for an injunction restraining them from using the trade-marks. An ex~parte
infunction was granted resttainin.e the appellants
f ·om
manufacturing
,3n~1
selling certain implements under the trade marks.
On obiection by the appel-
lants, the order was vacated. A review application by the respondents.
W;.1.-;
allowed. The order of the Court granting review was a combined order grantiu1!
review and disposing of the application for interim iniunction on merits.
On
appeal, the High Court confirmed the order. Against the order of the High
Court an appeal was filed to this Court and this Court passed an interim order
that the appellants will be entitled to use the trade marks but that the partic<
should keep accounts of all goods manufactured and sold and submit them h1
the trial court during the pendency of the
appeal. While the appeal
w:i;
pending in this Court, one of the appellants died.
The Court, to which reference was made under the first part of s. J3(b l.
Arbitration Act, gave its opinion that the appellants were not entitled to continut>
the suits, and an appeal was filed against the order under Art. 136.
The respondents filed a criminal complaint before
the Magistrate etatin~
that the appellants ":'ere using the trade marks without authority, and that thiy
were passing ~ their g~ as goods manufactured by the original firm. Tho
ap~llants applied to this Court for taking proceedings for contempt of court
against the respondents 'for having disobeyed the interim order of this Court'.
Ou the questions :
(I) Whether the appeal against the order of injunction had abakJ
because of the death of one of the appellants ?
(2) Wf!eth~r the appeal a'gainst the order of injunction on merit. WO!
ma1nta1nable ?
'
( 3) '!"hether the trial court was justified in passing the order of in'iunc-
flon?
( 4) Whether an appeal against the op!nio~ of the Court given un4er the
first part of s. J3(b) of the Arb1tral10n Act was maintainable, and
(5) Whether the respondents, in filing the criminal complaint wore
guilty of contempt of this Court ?
454
SUPREME COURT llBPOllTS
[ 1974) 1 s.C.ll •.
HELD: (I) Under 0.30. r. 4, C.P.C .• two or more persons may sue or
A
be sued in the name of a firm, and if any of the partners dies, whether before
the institution or during the pendency of any suit ... it shall not be necessary tD
1oin the legal representativos of the deceased as a party to th~ suit. . Under
s. 107. C.P.C., the provisions of 0.30. r· 4, apply to •.Pl•'8ls.also. Sin1;e the
appellants were sued in the names of their firms, the
IDJUDction was 1SSued
against them in the names of their firms, and they filed the appeal in the 11ames
of their firms, the deatll of one of the partners would not cause the appeal to
abate.
[456F-HJ
B
(2) 'The order of the trial court was not only an order granting the review
out also an order passed on merits.
Therefore, the appellants were entitled,
not only to cha.Uen~e the order on the grounds mentioned in 0.47, r. 1, but &ho
on any other ground open to them, namely that on merits, the order of injunc-
lion should not have been passed. [457 B-DJ
(3) Prima facie the respondents are not entitled to the· exclusive use of the
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