Misty Mountain Plantation Resort vs M/S Surya Hotel And Properties
2025 Latest Caselaw 5508 Ker

Kerala High Court

Misty Mountain Plantation Resort vs M/S Surya Hotel And Properties on 26 March, 2025

                                        1
OPC 1810/24




                                                               2025:KER:26738
                  IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                   PRESENT

                   THE HONOURABLE MR.JUSTICE BASANT BALAJI

        WEDNESDAY, THE 26TH DAY OF MARCH 2025 / 5TH CHAITHRA, 1947

                           OP(C) NO. 1810 OF 2024

       OS NO.1 OF 2022 OF II ADDITIONAL DISTRICT & SESSIONS COURT,THODUPUZHA


PETITIONER/S:

              MISTY MOUNTAIN PLANTATION RESORT, KUTTIKKANAM P.O.,
              PEERMEDU, IDUKKI DISTRICT , REPRESENTED BY ITS MANAGING
              PARTNER, MR. MICHAEL JOSEPH KALLIVAYALIL,AGED 32 YEARS, SON
              OF JOSEPH MICHAEL KALLIVAYALIL, RESIDING AT KONDUPARAMBIL
              HOUSE, MALLIKASSERY P.O,ELIKKULAM,KOTTAYAM, PIN - 686577

              BY ADVS.BENOY K.KADAVAN
              A.B.MANJU
              CELINE JOHN


RESPONDENT/S:

              M/S SURYA HOTEL AND PROPERTIES
              44/1256, ASRA, ACSRA COLONY , KALOOR, KOCHI, KERALA,
              REPRESENTED BY ITS MANAGING PARTNER, P.SURESH,S/O
              R.PRABHAKARAN PILLAI,AGED 60 YEARS, PIN - 682017

              BY ADVS.PHILIP T.VARGHESE
              THOMAS T.VARGHESE(K/000516/1995)
              ACHU SUBHA ABRAHAM(K/001758/1999)
              V.T.LITHA(K/278/2006)
              K.R.MONISHA(K/915/2013)
              JIJO PAUL(K/1009/2023)
              HAFNITHA MOL K.H.(K/002571/2024)


OTHER PRESENT:

              ADV. SAIKRISHNA RAJAGOPAL


      THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 6.3.2025, THE COURT
ON 26.3.2025 DELIVERED THE FOLLOWING:
                                          2
OPC 1810/24




                                                                 2025:KER:26738
                              JUDGMENT

(Dated this the 26th day of March 2025)

The petitioner is the plaintiff in O.S. No.1 of 2022 on the files

of the II Additional District and Sessions Court, Thodupuzha, and

the respondent is the defendant therein.

2. The petitioner is a partnership firm running a resort

named 'Misty Mountain Plantation Resort'. The trade mark

'Misty Mountain' was adopted as the trade name by the plaintiff's

predecessor in 1999. An application for registration of trade mark

was filed for the word 'Misty Mountain' under application

No.2441920 in class 43 on 6.6.2019 in respect of services of

'providing of food and drinks and temporary accommodation' and

the petitioner was assigned with the trade mark 'Misty Mountain'.

3. By virtue of the assignment deed dated 13.9.2019, the

same has been duly submitted before the Trade Mark Registry. In

2016, the petitioner came to know about the respondent's use of

2025:KER:26738 the said trademark with respect to a resort in Munnar. On enquiry,

the petitioner came to know that the respondent secured a

registration for the same mark with the application No.1969012.

The petitioner immediately filed a rectification application for

cancellation of the registration issued, and it was allowed, holding

that the petitioner is the prior user of the trade mark. Despite the

cancellation order, the respondent used the trade mark, violating

the right of the petitioner and therefore, O.S.No.1 of 2022 was

filed for a decree of declaration and for a permanent prohibitory

injunction restraining the defendant from using in any manner the

trade mark 'Misty Mountain Resort' or any other mark similar or

deceptively similar to the registered trade mark of the plaintiff

'Misty Mountain'. Along with the suit, an application for a

temporary injunction under Order 39 Rules 1 and 2 read with

Section 151 CPC was also filed. The learned District Judge

passed an interim injunction order on 19.3.2022. The respondent

2025:KER:26738 filed I.A.No.2 of 2022 for vacating the said interim injunction

order. After hearing both sides and marking Ext.Nos.A1 to A27

and Ext.Nos.B1 to B7, the learned District Judge, allowed

I.A.No.2 of 2022 and vacated the interim injunction order passed.

Aggrieved by order in I.A.No.2 of 2022, the petitioner filed

I.A.No.8 of 2022 to review the order, along with a petition to

condone the delay of 92 days, as I.A.No.6 of 2022. Another I.A.,

as I.A.No.7 of 2022, was also filed to receive additional

documents. Objections were filed to all the applications by the

petitioner. The District Judge, by a common order dated

13.2.2024, allowed I.A.No.6 of 2022 as well as I.A.No.7 of 2022,

but dismissed I.A.No.8 of 2022, which was filed for reviewing

the order in I.A.No.2 of 2022. It is challenging the said order in

I.A.No.8 of 2022, this O.P. is filed under Article 227 of the

Constitution of India.

4. A counter affidavit is filed by the respondent, wherein it

2025:KER:26738 was contended that this Original Petition is not maintainable as it

has been filed by the petitioner, who is not the lawful proprietor

of the trade mark. He has also approached this court with unclean

hands and has concealed the material facts and documents. The

plaintiff obtained the order in I.A.No.1 of 2022, by active

concealment and suppression of facts and by filing I.A. No.2 of

2022 by the respondent, the ex-parte interim injunction order was

vacated. I.A.No.8 of 2022 is an afterthought, as it is filed only

with a delay of 92 days.

5. As per the order dated 24.12.2021 by the Assistant

Registrar of Trade Mark, Chennai, in the certificate of

registration, the registration in respect to word Misty mountain

bearing application No.2441920 in class 43 stood cancelled and

in the database, it was changed from registered to 'review filed'.

The respondent's firm adopted the composite mark on

18.04.2009, and it has been used exclusively and uninterruptedly,

2025:KER:26738 since the said date. Therefore, prayed that the OP be dismissed.

6. Heard Sri.Benoy Kadavan for the petitioner and Sri.Sai

Krishna Rajagopal for the respondent.

7. The question to be considered in this O.P.(C) is whether

any interference is warranted with the order dated 13.2.2024 in

I.A.No.8 of 2022 in O.S.No.1 of 222.

8. The counsel appearing for the petitioner submitted that

the learned District Judge had vacated the injunction order passed

in I.A. No.1 of 2022, through the order in I.A. No.2 of 2022,

without adverting to the mandate under Order 39 Rule 1 CPC and

also the averments in the plaint. Since there was an error apparent

on the face of the record, I.A.No.8 of 2022 was filed to review

the order in I.A.No.2 of 2022.

9. Argument of the counsel for the petitioner is that the

petitioner has obtained the trade mark 'Misty Mountain' by the

plaintiff's predecessor in 1999, by late Michael A. Kallivayalil,

2025:KER:26738 through application No.2441920 in Class 43 on 6.6.2019 and has

produced the same as per Ext.P1 in the suit. Along with the suit,

an application for temporary injunction was also filed. The

District Judge, finding that delay in issuing the notice will defeat

the object of the suit and having found a prima facie case, granted

an injunction in favour of the petitioner restraining the

respondent/defendant from using in any manner the trade mark

'Misty Mountain Resort' or any other mark similar or deceptively

similar to the registered trade mark of the petitioner 'Misty

Mountain', until further orders. The application to vacate the

interim injunction as I.A. No.2 of 2022 was filed without

bonafide and suppressing material facts. The trade mark

registration granted to the plaintiff is valid and active, and the

order of the Registrar designating the status of the registration as

under 'review' has been stayed by this court as per order dated

17.5.2022 in W.P.(C) No.16075 of 2022. More so, when the

2025:KER:26738 registration of the defendant has been removed from the Registrar

by a detailed order holding that the petitioner is the prior user of

the trade mark 'Misty Mountain'.

10. The mere filing of the Review Petition does not entitle

the defendant to set up a claim over the removed trade mark.

When the court vacated the interim injunction, the review petition

was filed, but the review was dismissed on the ground that there

was no error apparent on the face of the record. Therefore, prays

that the order dated 13.2.2024 in I.A.No.8 of 2024, be set aside

and direct the learned District Judge to reconsider the same.

11. The counsel for the respondent argued that when

O.S.No.1 of 2022 was filed by the petitioner herein, with a prayer

for a decree declaring that the plaintiff is the Registered

proprietor-owner and prior user of the trade under the name and

style of 'Misty Mountain' and for an injunction restraining the

defendant and its representatives, their men, agents assigns, or

2025:KER:26738 acting through them from the use of trade mark 'Misty Mountain',

the plaintiff ought to have produced the trade mark as mandated

under The Trade Marks Act, 1999 (for short 'the Act') and not

Ext.P1, as produced in this O.P. Ext.P1 is a certificate of

registration issued under Section 23(2) of the Act and Rule 56(1)

of the Trade Marks Rules, 2017. The certificate issued under Rule

56 cannot be used in a legal proceeding, and when this was

pointed out to the learned District Judge, the court vacated the

interim injunction.

12. He further argued that under Rule 56 (2), the certificate

of registration referred to in sub-rule (1) should not be used in any

legal proceeding, and instead, only a certificate under Section 137

of the Act shall be used in legal proceedings. In Ext.P1 itself, at

the bottom portion, it is specifically stated that the certificate is

not to be used in legal proceedings or for obtaining registration

abroad. So, the petitioner has committed fraud in the court by

2025:KER:26738 producing Ext.P1 and not producing a certificate as provided

under section 137 of the Act.

13. Furthermore, it was argued by the counsel for the

respondent that the certificate of registration for 'Misty

Mountain', issued on 13.12.2012 under application No. 2441920,

has been cancelled as per the order of the Assistant Registrar of

Trade Marks, Chennai dated 3.12.2021. The suit is filed on

16.3.2022. The averments in the suit is that he is the registered

proprietor of trade mark 'Misty Mountain' as on the date of filing

of the suit and therefore, the defendant using the same has

infringed the same and is entitled for a decree for declaration and

injunction is factually wrong.

14. W.P.(C) No.16075 of 2022 was filed on 16.5.2022, and

the operation of the order cancelling registration has been stayed

only from 16.5.2022. The present suit was filed on 16.3.2022,

at a time when the cancellation order was not stayed by this court.

2025:KER:26738 He argued that the learned District Judge had rightly dismissed

the application as there was suppression on the part of the

petitioner in obtaining the interim injunction as on the date of

filing of the suit. The petitioner was not a registered trade mark

holder, but misrepresented that he had a registered trade mark and

obtained the ex-parte injunction order. When this was brought to

the notice of the learned District Judge in I.A.No.1 of 2022, the

order was vacated. There is no error apparent on the face of the

record in I.A. No.1 of 2022 and hence, prayed that the O.P. be

dismissed.

15. To provide an easy understanding of the case in hand, a

few sections of the Act and Rules are to be extracted.

Rule 56 of the Trade Mark Rules reads as follows:

"56. Certificate of registration.-(1) The certificate of registration to be issued by the Registrar under sub-section (2) of section 23 shall be on Form RG-2 and shall include the Trade Mark. It shall bear the seal of the Trade Marks Registry.

(2) The certificate of registration referred to in sub-rule (1)

2025:KER:26738 shall not be used in legal proceedings or for obtaining registration abroad. The certificate issued under section 137 shall be used for these purposes.

(3) The Registrar may issue duplicate or further copies of the certificate of registration on request by the registered proprietor in Form TM-M accompanied by the prescribed fee."

Section 137 of the Act reads as follows:

"37. Evidence of entries in the register, etc., and things done by the Registrar.-(1) A copy of any entry in the register or of any document referred to in sub-section (1) of section 148 purporting to be certified by the Registrar and sealed with the seal of the Trade Marks Registry shall be admitted in evidence in all Courts and in all proceedings without further proof or production of the original.

(2) A certificate purporting to be under the hand of the Registrar as to any entry, matter or thing that he is authorised by this Act or the rules to make or do shall be prima facie evidence of the entry having been made, and of the contents thereof, or of the matter or things having been done or not done."

16. When there is a clear bar under Rule 56(2) that a

certificate referred to in sub-rule 1 shall not be used in any legal

proceeding, the plaintiff should have produced a certificate under

Section 137 of the Act as the suit document. The court should not

2025:KER:26738 have acted on Ext.P1, issued under Rule 56 (1) to hold that the

petitioner was the registered trademark holder, when filing the

suit.

17. In this connection, it is to be noted that on a complaint

made by a 3rd party, proceedings having taken under Section 57

of the Act and a hearing was conducted and on verification of the

files, the Assistant Registrar of Trade Marks found that the

application has been proceeded to registration pending a review

petition and therefore, it was cancelled. The status of the

application was changed to 'review filed' on 3.12.2021. So, the

plaintiff cannot contend after 3.12.2021 that he is a registered

holder of the trade mark 'Misty Mountain'. Thus, it is evidently

clear that as of the date of filing of the suit i.e., on 16.3.2022, the

petitioner was not a registered holder of 'Misty Mountain'.

18. The contention raised by the petitioner is that the said

cancellation has been stayed by this court on 16.5.2022 in W.P.(C)

2025:KER:26738 No.16075 of 2022, and therefore, the cancellation of registration

was suspended, which entitled to a claim that he continues to be

the registered trade mark holder. It is true that the Writ Petition

was allowed on 13.3.2024, and the order cancelling the

registration dated 3.12.2021, was set aside. But the fact remains

that as on the filing date of the suit, the petitioner did not have a

registered trade mark.

19. Counsel for the petitioner relied on the judgment of the

apex court in Board of Control for Cricket in India and

another v. Netaji Cricket Club and others (2005 KHC 883)

wherein, the court has held as follows:

"91. It is true that in Moran Mar Basselios Catholicos v. Most Rev. Mar Poulose Athanasius (1955 (1) SCR 520 AIR 1954 SC 526) this Court made observations as regards limitations in the application of review of its order stating:

"Before going into the merits of the case it is as well to bear in mind the scope of the application for review which has given rise to the present appeal. It is needless to emphasise that the scope of an application for review is much more restricted than that of an appeal. Under the provisions

2025:KER:26738 in the Travancore Code of Civil Procedure which is similar in terms to Order 47 Rule 1 of our Code of Civil Procedure, 1908, the court of review has only a limited jurisdiction circumscribed by the definitive limits fixed by the language used therein. It may allow a review on three specified grounds, namely (i) discovery of new and important matter or evidence which, after the exercise of due diligence, was not within the applicant's knowledge or could not be produced by him at the time when the decree was passed, (if) mistake or error apparent on the face of the record and (iii) for any other sufficient reason. It has been held by the Judicial Committee that the words 'any other sufficient reason' must mean 'a reason sufficient on grounds, at least analogous to those specified in the rule." but the said rule is not universal."

It was also held that any other sufficient reason must be sufficient

on grounds, at least analogous to those specified in the rule, but

the said rule is not universal.

20. Reliance was also placed on a judgment of a Division

Bench of this court in Kamala Raphael v. Earnest and others

(2011 KHC 2412), wherein it is held as follows:

"34. xxx xxxx xxx 0.47 R.1 of the Code provides for filing an application for review. Such an application for review would be maintainable not only upon discovery of a new and important piece of evidence or when there exists an error apparent on the face of the record but

2025:KER:26738 also, if the same is necessitated on account of some mistake or for any other sufficient reason.

Thus, a mistake on the part of the Court which would include a mistake in the nature of the undertaking may also call for a review of the order. An application for review would also be maintainable if there exists sufficient reason therefor. What would constitute sufficient reason would depend on the facts and circumstances of the case. The words 'sufficient reason' in 0.47, R.1 of the Code is wide enough to include a misconception of fact or law by a Court or even an Advocate. An application for review may be/necessitated by way of invoking the doctrine "actus curiae neminem gavabit."

21. He further placed reliance on another judgment of a

division bench of this court in Tom Thomas and Another v.

State Bank of India and others [2017 (1) KHC 1], in which

paragraphs Nos.23 and 24, held as follows:

"23. It is true that the power of review is the creature of a Statute and is to be exercised only within the delineated limits. However, it would be pertinent to refer to the judgment of the Apex Court in Board of Control For Cricket In India and Another v. Netaji Cricket Club and Others, 2005 KHC 883: 2005 (4) SCC 741:

AIR 2005 SC 592 wherein the Apex Court has after referring to Moran Mar Basselios Catholicos v. Most Rev. Mar Poulose Athanasius, 1954 KHC 111: AIR 1954 SC 526 1954 KLT 385: 1955 (1) SCR 520: ILR 1954 TC 867, which emphasises the three specified grounds as stated above, on which the power of review could be exercised, proceeded to hold that the said Rule is not universal. The Apex Court referred to the judgment in Lily Thomas v. Union of India, 2000 KHC 536: 2000 (6) SCC 224: 2000 (2) KLT SN 62: 2000 (2) KLJ NOC 25: AIR 2000 SC 1650:

2025:KER:26738 2000 CriLJ 2433 paragraph 52, which reads thus:

"52. The dictionary meaning of the word 'review' is 'the act of looking, offer something again with a view to correction or improvement'. It cannot be denied that the review is the creation of a Statute. This Court in Patel Narshi Thakershi v. Pradyumansinghji Arjunsighji, held that the power of review is not an inherent power. It must be conferred by law either specifically or by necessary implication. The review is also not an appeal in disguise. It cannot be denied that justice is a virtue that transcends all barriers and the rules or procedures or technicalities of law cannot stand in the way of administration of justice. Law has to bend before justice. If the Court finds that the error pointed out in the review petition was under a mistake and the earlier judgment would not have been passed but for erroneous assumption which in fact did not exist and its perpetration shall result in a miscarriage of justice nothing would preclude the Court from rectifying the error.

24. As observed by the Apex Court in Lily Thomas v. Union of India (supra) and accepted in Board of Control For Cricket In India and Another v. Netaji Cricket Club and Others (supra), justice is a virtue which transcends all barriers and the rules or procedures or technicalities of law cannot stand in the way of administration of justice. If a mistake, its perpetration of which shall result in miscarriage of justice nothing would preclude the Court from rectifying the error. The Apex Court has in Board of Control For Cricket In India and Another v. Netaji Cricket Club and Others (supra) held that, depending on the circumstances, the Court would even take into consideration a subsequent event to exercise its power of review. To quote the Apex Court, at paragraph 93, it held thus:

"93. It is also not correct to contend that the Court while exercising its review jurisdiction in any situation whatsoever cannot take into

2025:KER:26738 consideration a subsequent event."

Therefore, he prayed that in view of the change of circumstances

by which the cancellation of trade mark has been set aside by this

court in W.P.(C) No.16075 of 2022, the order in I.A.No.8 of 2022,

be set aside and be directed to reconsider in the light of the new

development.

22. Counsel for the respondent relied on paragraphs Nos.11,

12 and 13 of the judgment of the apex court in Om Prakash

Gupta v. Ranbir B. Goyal [(2002) 2 SCC 256]:

"11. The ordinary rule of civil law is that the rights of the parties stand crystallised on the date of the institution of the suit and, therefore, the decree in a suit should accord with the rights of the parties as they stood at the commencement of the lis. However, the Court has power to take note of h subsequent events and mould the relief accordingly subject to conditions being satisfied: (i) that the relief, as claimed originally has, by reason of subsequent events, become inappropriate or cannot be granted; (ii) a that taking note of such subsequent event or changed circumstances would shorten litigation and enable complete justice being done to the parties; and (iii) that such subsequent event is brought to the notice of the court promptly and in accordance with the rules of procedural

2025:KER:26738 law so that the opposite party is not taken by surprise. In Pasupuleti Venkateswarlu v. Motor & General Traders this Court held that a fact arising after the lis, coming to the notice b of the court and having a fundamental impact on the right to relief or the manner of moulding it and brought diligently to the notice of the court cannot be blinked at. The court may in such cases bend the rules of procedure if no specific provision of law or rule of fair play is violated for it would promote substantial justice provided that there is absence of other disentitling factors or just circumstances. The Court speaking through Krishna lyer, J. affirmed the proposition that the court can, so long as the litigation pends, take note of updated facts to promote substantial justice. However, the Court cautioned:

(1) the event should be one as would stultify or render inept the decretal remedy, (ii) rules of procedure may be bent if no specific provision or fair play is violated and there is no other special circumstance repelling resort to that course in law or justice, (iii) such cognizance of subsequent events and d developments should be cautious, and (iv) the rules of fairness to both sides should be scrupulously obeyed.

12. Such subsequent event may be one purely of law or founded on facts. In the former case, the court may take judicial notice of the event and before acting thereon put the parties on notice of how the change in law is going to affect the rights and obligations of the parties and modify or mould the course of litigation or the relief so as to bring it in conformity with the law. In the latter case, the party relying on the subsequent event, which consists of facts not beyond pale of controversy either as to their existence or in their impact, is expected to have resort to amendment of pleadings under Order 6 Rule 17 CPC. Such subsequent event, the Court may permit being introduced. into the pleadings by way of amendment as it would be necessary to do so for the purpose of determining real questions in

2025:KER:26738 controversy between the parties. In Trojan & Co. v. RM. N.N. Nagappa Chettiar³ this Court has held that the decision of a case cannot be based on grounds outside the pleadings of the parties and it is the case pleaded that has to be found; without the amendment of the pleadings the Court would not be entitled to modify or alter the relief. In Sri Mahant Govind Rao v. Sita Ram Kesho Their Lordships observed that, as a rule, relief not founded on the pleadings should not be granted.

13. Power of the court to take note of subsequent events, specially at the appellate stage, came up for the consideration of a Full Bench of the Nagpur High Court presided over by Justice Sinha (as His Lordship then was) in Chhote Khan v. Mohd. Obedulla Khan. Hidayatullah, J. (as His Lordship then was) held, on a review of judicial opinion, that an action must be tried in all its stages on the cause of action as it existed at the commencement of the action. No doubt, courts "can" and sometimes "must" take notice of subsequent events, but that is done merely "inter partes" to shorten litigation but not to give to a defendant an advantage because a third party has acquired the right and title of the plaintiff. The doctrine itself is of an exceptional character only to be used in very special circumstances. It is all the more strictly applied in those cases where there is a judgment under appeal. His b Lordship quoted the statement of law made by Sir Ashutosh Mookerjee, J. in a series of cases that merely because the plaintiff loses his title pendente lite is no reason for allowing his adversary to win if the corresponding right has not vested in the adversary but in a third party. In the case at hand, the defendant-appellant has simply stated the factum of proceedings initiated by HUDA against the plaintiff-respondent in an affidavit very casually filed by c him. He has not even made a prayer to the court to take notice of such subsequent event and

2025:KER:26738 mould the relief accordingly, or to deny the relief to the plaintiff-respondent as allowed to him by the judgment under appeal, much less sought for an amendment of the pleadings. The subsequent event urged by the defendant- appellant is basically a factual event and cannot be taken cognizance of unless brought to the notice of the court in accordance with the d established rules of procedure which if done would have afforded the plaintiff-respondent an opportunity of meeting the case now sought to be set up by the appellant. We do not think this Court would be justified in taking notice of a fact sought to be projected by the appellant in a very cavalier manner. The fact remains that the present one is a landlord-tenant dispute and we cannot upset the relief granted by the courts below and the High Court to the plaintiff-respondent by relying on the doctrine of eviction by title paramount as it cannot be said that the proceedings initiated by HUDA against the plaintiff- respondent have achieved a finality or are such proceedings wherein the plaintiff-respondent cannot possibly have any sustainable defence."

23. The counsel also relied on a judgment of the apex court

in S.P. Chengal Varaya Naidu (dead) by LRS. v. Jagannath

(dead) by LRs. and others [(1994) 1 SCC 1], wherein it is held

that a litigant who approaches the court is bound to produce all

the documents executed by him which are relevant to the

litigation and if he withholds a vital document in order to get

2025:KER:26738 advance on the other side then he would be guilty of playing fraud

on the court as well as on the opposite party.

24. According to the counsel for the respondent, the

petitioner has produced a document that is not in existence as of

the date of institution of the suit, and the injunction being an

equitable order, the petitioner ought to have approached the court

with clean hands. But he failed to do so. Thus, the injunction was

rightly vacated. The Review Petition was also rightly dismissed.

As I have already held, as on the filing date of the suit, the

petitioner did not have a registered trade mark. The court below

was justified in not entertaining the review on the ground that

there is no error apparent on the face of the record since the

injunction order was vacated when the court was convinced that

the averment that the petitioner was not a registered trade mark

holder as on the date of filing of the suit. I have gone through the

order in I.A. No.8 of 2022, and I am satisfied that the District

2025:KER:26738 Judge was right in dismissing the application for the reasons

stated therein. Therefore, no interference is warranted with the

said order.

In the result, this O.P.(C.) is dismissed.

Sd/-

BASANT BALAJI JUDGE dl/

2025:KER:26738 APPENDIX OF OP(C) 1810/2024

PETITIONER EXHIBITS

Exhibit P1 : TRUE COPY OF THE TRADE MARK ‘MISTY MOUNTAIN' REGISTRATION CERTIFICATE ISSUED TO THE PETITIONER WITHNO.2441920 DATED 06/06/2019.

Exhibit P2 TRUE COPY OF THE PLAINT IN OS.NO.1/2022 BEFORE THE DISTRICT COURT THODUPUZHA

Exhibit P3 TRUE COPY OF I.A.NO.1/2022 IN OS.NO.1/2022 OF DISTRICT COURT, THODUPUZHA.

Exhibit P4 TRUE COPY OF ORDER DATED 19/03/2022 IN I.A.NO.1/2022 IN OS.NO.1/2022 OF DISTRICT COURT THODUPUZHA

Exhibit P5 TRUE COPY OF I.A.NO.2/2022 FILED BY THE RESPONDENT

Exhibit P6 TRUE COPY OF THE COUNTER AFFIDAVIT FILED BY THE PETITIONER IN I.A.NO.2/2022 IN O.S.NO.1/2022

Exhibit P7 TRUE COPY OF THE ORDER DATED 13/07/2022 IN

Exhibit P8 TRUE COPY OF THE E-REGISTERED PRODUCED AS EXHIBIT-A11 IN I.A.NO.2/2022

Exhibit P9 TRUE COPY OF I.A.NO.8/2022 FILED FOR REVIEWING

Exhibit P10 TRUE COPY OF THE COUNTER AFFIDAVIT FILED BY

Exhibit P11 TRUE COPY OF I.A.NO.6/2022 FILED BY THE PETITIONER.

Exhibit P12 TRUE COPY OF THE COUNTER AFFIDAVIT FILED BY THE

Exhibit P13 TRUE COPY OF I.A.NO.7/2022 FILED FOR ACCEPTING ADDITIONAL DOCUMENTS BY THE PETITIONER.

Exhibit P14 TRUE COPY OF I.A.NO.5/2022 FILED BY THE RESPONDENT FOR REJECTION OF PLAINT

2025:KER:26738

Exhibit P15 TRUE COPY OF THE COUNTER AFFIDAVIT FILED BY THE

Exhibit P16 CERTIFIED COPY OF THE COMMON ORDER PASSED BY THE DISTRICT COURT THODUPUZHA IN I.A.NO.6/2022,I.A.NO.7/2022,I.A.NO.8/2022.

Exhibit P17 : CERTIFIED COPY OF THE ORDER PASSED BY DISTRICT

Exhibit P18 TRUE COPY OF THE W.P.(C) NO.16075/2022 OF THE HON'BLE HIGH COURT OF KERALA.

Exhibit P19 TRUE COPY OF THE JUDGMENT OF HON'BLE HIGH COURT OF KERALA IN WP(C) NO.16075/2022

Exhibit P20 TRUE COPY OF THE APPLICATION FOR CANCELLATION TRADE MARK ‘MISTY MOUNTAIN' WITH NO:2441920 FILED BY RESPONDENT

RESPONDENT EXHIBITS

Exhibit R4 True copy of the Order dated 24/12/2021 passed by the Ld. Asst. Registrar of Trade Marks, Chennai

Exhibit R4(a) True copy of status of the word mark 'misty mountain' bearing application no. 2441920 dated 09.10.2024

Exhibit R6 True copy of Letter dt 23rd November 2012 addressed to the Trade Mark Registry by the proprietor of Trade Mark 'misty mountain' (word mark) bearing application no. 2441920

Exhibit R1 True copy of Order dated 10/1/2022 passed by the Ld. Asistant Registrar of Trade Marks, Chennai

Exhibit R2 True copy of Review Petition dated 2/2/2022 filed in Rectification No. MAS 262882

Exhibit R7 True copy of Relevant extracts from the novel ' Hobbit ' by J.R.R. Tolkien dated nil

Exhibit R9 True copy of the Order dt. 15/5/2019 issued vide Trade Mark Registry letter 27/5/2019

Exhibit R7(a) True copy of Relevant extracts from the novel '

2025:KER:26738 Hobbit ' by J.R.R. Tolkien dated nil

Exhibit R7(b) True copy of Relevant extracts from the novel ' Hobbit ' by J.R.R. Tolkien dated nil

Exhibit R8 True copy of Relevant web pages showing the 'misty mountain ' forming part of a number of hotels and resorts dated nil

Exhibit R10 True copy of the Review Petition filed by the Opponent in Opposition no. 940638 dated 27.06.2019

Exhibit R11 True copy of the letter from the Trade Mark Registry dated 5/12/2019 in connection with the Proceedings in Opposition no. 940638

Exhibit R12 True copy of Hearing notices served in connection with Opposition no. 940638 dated 04.01.2022

Exhibit R12(a) True copy of Hearing notices served in connection with Opposition no. 940638 dated 25.06.2022

Exhibit R12(b) True copy of Hearing notices served in connection with Opposition no. 940638 dated 28.07.2022

Exhibit R12(c) True copy of Hearing notices served in connection with Opposition no. 940638 dated 18.06.2024

Exhibit R13 True copy of the Trade Mark Application No. 2441920 in class 43 on Form TM-1 dated 05.12.2012

Exhibit R14 True copy of the relevant extract from the online records of the Trade Marks Registry showing that the application bearing no. 2441920 was filed by Mr. Michael A. Kallivayalil and continues to stand in his name even as on dated 09.10.2024

Exhibit R15 True copy of the Renewal intimation dated 25/12/2022 pertaining to trade mark application no. 2441920

Exhibit R17 True copy of letter dated 14/12/2022 addressed to the Trade mark Registry by the Petitioners'/ Plaintiffs' Attorney

Exhibit R18 True copy of the application for Renewal filed on 22/12/2022 by the Attorney acting for the

2025:KER:26738 Petitioner/ Plaintiff

Exhibit R16 True copy of the Rectification Application in Rectification No. 279782 filed by the Respondent/ Defendant to trade mark application no. 2441920 dated 17.07.2023

Exhibit R5 True copy of the formal request for change of proprietorship dt. 27/9/2019 along with True copy of the Deed of Assignment and the Trade Marks Registry Scrutiny Report

Exhibit R3 True copy of the draft of a rectification application filed by the proprietor of the word mark misty mountain (bearing application no. 2441920) as the basis of the Rectification proceedings under no. MAS 262882 dated 06.04.2016