(Prayer: Second Appeal filed under Section 100 of Civil Procedure Code, against the judgment and decree dated 26.02.2004 passed in A.S.No.234 of 2003 on the file of the Principal Judge, City Civil Court, Chennai, reversing the judgment and decree dated 14.11.2002 passed in O.S. No.788 of 1998, on the file of VII Assistant Judge, City Civil Court, Chennai.)

1. In this second appeal challenge is made to the judgment and decree dated 26.02.2004 passed in A.S.No.234 of 2003 on the file of the Principal Judge, City Civil Court, Chennai, reversing the judgment and decree dated 14.11.2002 passed in O.S. No.788 of 1998, on the file of VII Assistant Judge, City Civil Court, Chennai.

2. The second appeal has been admitted on the following substantial questions of law.

a) Whether the defendant which has changed the name of its society can maintain the appeal before the lower appellate court

b) Whether the appeal filed by the defendant is itself defeated on the ground that the appeal was filed by a society which has ceased to exist

c) Is not the respondent / defendant barred from agitating the injunction decree when it has given up its claim to use "sulabh in its name by its own conduct

d) Is not the defendant barred from using the name "sulabh when such use is only aimed at playing fraud upon the appellant and causing loss to the appellant and the public at large

e) Whether the lower appellate court failed to take into consideration the fact that even though the registration of the word sulabh was not done sulabh had been working in the field of sanitation for nearly thirty five years and had earned a name for itself and as was evident the defendant misrepresented and misused the worrd sulabh for his own end by imperlonation and fraud

f) Whether a decree of injunction in personam can be refused on the ground of non registration of a trade mark in view of the peculiar facts of the case on hand

g)Whether the lower appellate Court erred in holding that the appellant has to register the name sulabh as a trademark when what was claimed was only an injunction restraining the defendant, who was chairman of the appellant in Tamilnadu State Branch from using the same name for his own oranisation fraudulently and by impersonation

h) Whether the lower appellate court failed to consider the finding of the trial court that the activity of the defendant is causing confusion all around and if the defendant continues to act in tis way it may cause irredeemable loss to the plaintiff

3. Considering the scope of the issues involved between the parties as regards the subject matter lying in a narrow compass, it is unnecessary to dwell into the facts of the case in detail.

4. The suit has been laid by the plaintiff for relief of permanent injunction by contending that the plaintiffs organisation was formed with laudable objects of restoration of human dignity of scavengers, conversion of hand cleaning toilets to flush toilets, social rehabilitation, education for the children of the scavengers and accordingly, the plaintiffs organisation has earned a good reputation thoughout the country as Sulabh and it is stated that the chairman of the defendant, Sri Surendra Jha was working for the plaintiffs organisation for many years and accordingly he had entered into agreements and contracts with various municipalities and corporations for maintaining the public convenience toilet blocks on behalf of the plaintiff. Further, he had, with an evil intention, formed another society in the name and style of "SULABH TAMILNADU" and by using the name "Sulabh", as similar to the name of the plaintiffs organisation and he has also not obtained any permission for using the abovesaid name, thereby misrepresented with the officials of various municipalities, corporation and public sector undertakings as though the plaintiffs organisation and the defendants unit are one and the same and misused the name of the plaintiff by collecting the service charges from the users of the public convenience and in as much as the name Sulabh exclusively belongs to the plaintiff and the defendant had no right to use the said name with reference to his commercial endeavours, in order to restrain the defendant from using the same, accordingly, the plaintiffs suit has come to be laid for the relief of permenant injunction.

5. The defendant resisted the plaintiffs case contending that the word "sulabh is a common word and the plaintiff cannot claim exclusive monopoly with reference to the same and the defendant is a society formed and registered under the societies registration Act in the year 1994 and therefore, the plaintiff has no right to prevent the defendant from carrying on a similar activity and only due to the personal animosity, the present suit has come to be laid by the plaintiff against the defendant and no misrepresentation had been made by the defendant, whatsoever, as referring the plaintiffs organisation and the defendants society as one and the same by using the word Sulabh and the word Sulabh means easy and the same is not the trade mark of the plaintiff and the plaintiff cannot claim exclusive right over it and the suit laid by the plaintiff, has no cause of action and therefore, the suit liable to be dismissed.

6. On the basis of the materials placed on record by the respective parties, it is found that the trial court was pleased to accept the plaintiffs case. However, the first appellant court did not find acceptance with the plaintiffs case and thereby dismissed the plaintiffs suit. Impugning the same, the present appeal has been laid.

7. The plaintiffs contention is that the name Sulabh attached to his organisation exclusively belong to the plaintiff and the plaintiff has earned reputation and goodwill by using the aforesaid name and in such view of the matter, according to the plaintiff, the organisation of the defendant had started misusing the abovesaid name and floated the defendants society and thereby tarnished the image of the plaintiff, accordingly, it is the case of the plaintiff that that suit has come to be laid against the defendant for the relief of permanent injunction. Per contra, it is the contention of the defendant that in as much as the word "Sulabh is not the trade mark of the plaintiffs organisation, the plaintiff cannot legally restrain the defendant from using the common word in respect of his unit and therefore, the suit is liable to be dismissed.

8. It is found that as seen from the materials placed on record, the term Sulabh means easy. Further, when it is seen that Sulabh is a common word and in such view of the matter, the plaintiff without any material, cannot claim any exclusive right to the abovesaid name. The plaintiff is not found to have acquired any trade mark in respect of the word "Sulabh and in such view of the matter, the plaintiff cannot contend that his organisation has been identified with the word "Sulabh throught out the Country as sought to be projected.

9. Though it is found that the defendant is not entitled to tarnish the image of the plaintiff through his commercial endeavours, however, when the word "sulabh is found to be a common word and could be used by one and all and the plaintiff has not made out any case or right to use the said word "Sulabh exclusively and as above seen, the plaintiff had not registered the said name as the trade mark for his organisation, it is seen that as rightly determined by the first appellate court, the defendant cannot be prohibited from using the word Sulabh. In the light of the above position, when it is found that, admittedly Sulabh is a common word as rightly found by the first appellate court, the plaintiff appears to have misdirected itself and laid the suit without any cause of action against the defendant for the relief of permenant injunction.

10. In the light of the above disucssion, it is found that the plaintiff has no cause of action at all to institute the suit against the defendant and in such view of the matter, in my considered opinion, no substantial question of law is found to be involved in the second appeal. Be that as it may, all the substantial questions of law formulated in this second appeal are accordingly answered against the plaintiff and in favour of the defendant.

11. For the reasons aforestated, the second appeal fails and it is accordingly dismissed. No costs. Consequently, connected miscellaneous petition, if any, is closed.