' Both these petitions i,e, Civil Revision No,2409 of 2001 and Civil Revision No,2410 of 2001, are being disposed of together, as these involve the common questions of law and facts.
2. Through single order, dated 24-7-2001, the learned Civil Judge, disposed of three applications filed by the petitioner and the "The Lyceum" under Order 39, rules 1 and 2, C.P.C. And one under section 34 of the Arbitration Act, filed by Umer Aziz. The petitioner feeling aggrieved of the said order, filed two appeals, whereas one appeal was filed by the "The Lyceum" through Azra Umer. The appeals of the petitioner were dismissed, but that of "The Lyceum" has been accepted by the learned Additional District Judge, Lahore, through the impugned order, hence these petitions.
3. Briefly stated the facts of the case are that, Mst. Zeeshan Nadeem (the petitioner) filed a suit for permanent injunction claiming that the "Lahore Lyceum" a private limited company through Umer Aziz had entered into various agreements with her on the basis of which, she was entitled to establish and run schools with the name "The Lahore Lyceum". First school was established at 64/65 Main Sammanabad, Lahore; two other schools were further established at Allama Iqbal Town and Riwaz Garden, Lahore. Subsequently, in view of the dispute between her and the "Lahore Lyceum" (Umer Aziz), she had terminated those agreements and by changing the name of the schools from "The Lahore Lyceum" to "The Lyceum", she is conducting her own independent business with which, Umer Aziz (defendant), has no concern, but he is threatening and attempting to interfere in the management etc. Of the petitioner, by using force, thus be restrained in that regard. Alongwith the suit, an application for the grant of temporary injunction was also moved, with the following prayer:-- "In view of the above submissions, it is most respectfully prayed that the application may be accepted and the respondent may kindly be restrained from disturbing, interfering, or dispossessing in the lawful and peaceful business at the premises of 64/65 Sammanabad, 132 Iqbal Town, 319/320 Riwaz Garden, of the petitioner till the final decision of the case."
' In this suit, Umer Aziz moved an application under section 34 of the Arbitration Act, asserting an arbitration agreement between the parties and praying for the reference to the arbitrators, in the light thereof.
4. Another suit was filed by "The Lyceum" (the firm) a registered partnership firm through Mst. Azra Umer, seeking restraint against the petitioner to use the name of the firm, in conducting the school business by her. The learned trial Court without there being any request on behalf of the parties, suo motu consolidated these two suits and disposed of the above three applications by a single order, dated 24-7-2001.
5. As per the order, the application under section 34 filed by Umer Aziz has been accepted and the parties in both the suits were required to give names of their respective arbitrators, whereas on the other two applications under Order 39, rules 1 and 2, C.P.C., moved by the petitioner and the firm, a status quo has been passed in the following terms:- "Both the parties are allowed to run their schools in the name with which they are running at the date of institution of two suits or the firm The Lyceum' with its own name till the award is filed into the Court and matter is finally adjudicated upon on the basis of award."
' Aggrieved of the above order, the petitioner filed two appeals, through which, she challenged the consolidation of the suits and, reference to the arbitrators, whereas "The Lyceum" also filed an appeal impugning the above aspect and also the maintenance of status quo order. These appeals have been disposed of through a single order, dated 3-11-2001 by the learned Additional District Judge, Lahore.
6. While arguing these petitions, the learned counsel for the parties agreed that the order of the Court of appeal, setting aside the consolidation of the two suits and confining the arbitration matter only to the suit filed by the petitioner is valid. Anyhow, the grievance of the petitioner is that by accepting the appeal of the respondent "The Lyceum", the status quo order granted by the trial Court has been illegally and erroneously set aside. The petitioner was entitled to use the name of "The Lyceum" notwithstanding the fact that the firm by the name of "The Lyceum" had been registered. It is also submitted that the Civil Courts had no jurisdiction to entertain and decide the suit of "The Lyceum", as it pertains to the infringement of the trade mark/trade name and in this behalf, as per the provisions of section 73 of the Trade Marks Act, 1940, the jurisdiction exclusively vested with the learned District Judge. It is also submitted that the plaintiff/firm had failed to make out a case for the "passing off an action", because, under the provisions of section 20 of the Act (ibid), such action only relates to the goods and not to the services.
7. I have heard the learned counsel for the parties and perused the record. Certain facts are not in dispute between the parties. Such as, the "THE LAHORE LYCEUM" is a private limited company, which is running the business of schools in Lahore; the petitioner obtained the franchise rights under various agreements to use the name of the said company and had established the schools in different parts of the city. It is also admitted fact that "THE LYCEUM" is a registered firm and is conducting the business of running schools under the said name. However, the petitioner's case is that though she obtained the franchise rights to establish schools by the name of "THE LAHORE LYCEUM" but subsequently rescinded the agreements and by changing the name of her school to "THE LYCEUM" is presently conducting her independent business with the exclusive right of management and control over the schools; Umer Aziz thus has no right to interfere in her business.
8. Anyhow, from the record of the two cases, it emerges that the private limited company and the firm are the family concern of Umer Aziz and Azra Aziz; "The Lyceum" is the key name under which the family has established the business of schools in Lahore, and have earned a goodwill and reputation in the educational spheres. The schools set up under this name necessarily are deemed, understood and taken by the general public to be those, which have been established by the family of the respondents. With a view to protect this name, the family has also got a firm registered. Contrarily, the petitioner independently has not attained any goodwill qua the name "The Lyceum" and the services attached thereto. She at the best was running the schools on the basis of a franchise conferred upon her by the company, but according to her own case, the franchise agreements have been unilaterally rescinded by her. Having herself done so, but she continued, to use the key name, i,e, "THE LYCEUM" for her business, which would, amount to representing to the public that her business or services have nexus to the family concern of the respondents. This would definitely be an unfair trade practice and unfair competition covered by the rule of "passing off" and thus, would be actionable under the law of torts by the respondents, particularly the firm. Therefore, the learned Additional District Judge has rightly restrained the petitioner from conducting her business or rendering educational services under the name and style of "The Lyceum".
9. Now attending to the question of jurisdiction, in such cases as is in hand, the point has been examined by the Honourable Supreme Court in case reported as Messrs Tabaq Restaurant v.
Messrs Tabaq Restaurant (1987 SCM R 1090), and it has been held as follows:-- "It is well-settled that 'passing off' actions are designed to protect the property in the goods on account of its reputation and not in the trade mark and that 'passing off' actions are essentially actions in tort and are filed in contradiction to suits filed for infringement of trademarks, where invasion takes place in one's rights in the property, for instance when someone imitates the goods of another. Hence if the suit filed by the respondent was a suit simpliciter for 'passing off' and no infringement of the trade marks was involved therein, the suit undoubtedly lay before the Court of first instance, namely, the Court of the Civil Judge."
From the averments of the plaint in suit filed by the firm, it is clear that the claim is based simpliciter on passing off action and not of the infringing trade mark. Therefore, following the above dictum, it is held that Civil Court had jurisdiction in the matter.
10. The other argument of the petitioner counsel that according to section 20(2) of the Trade Marks Act, 1940, the "passing off" action is only confined to the goods and not the services, suffice it to say that this subsection is in fact a proviso to the main section and has to be constructed in the light thereof, however, even considering it to be a proviso to the Act as a whole, but its true meaning and constructions in no way debars a person to maintain an action under the general law of torts, which permits an individual to initiate the proceedings for the passing off, the services as well. In this behalf, the following paragraph of the Street on Torts, Sixth Edition, page 365, can be reproduced, which reads as follows:-- "A person is liable for this tort if in the course of selling or offering for sale his goods or services in an area where he and the plaintiff are business competitors he represents them as being those of the plaintiff in a manner calculated to deceive members of the public into thinking that the goods or services are those of the plaintiff or of a group to which the plaintiff belongs."
In view of the above, thus, when the action is based simpliciter under the law of torts, services are duly covered by the abovementioned definition and an action can be duly maintained. The contention of the petitioner's counsel is, therefore, repelled.
11. As regards the question, whether Umer Aziz or the management of "The Lahore Lyceum" can be allowed to interfere in the business conducted by the petitioner, it may be held that without getting the matter resolved through the arbitration, as has been itself required by Umer Aziz through application under section 34 of the Arbitration Act, the respondent i,e, Umer Aziz or any other member of "The Lahore Lyceum" management, has no authority to illegally and unlawfully interfere in the affairs/ business of the petitioner conducted at the three schools in dispute. To this extent, the petitioner is entitled to the relief of protection qua her possession over the schools and the managemental affairs.
' In view of the above, the respondents or any other member of the "The Lahore Lyceum" private limited company, are restrained from interfering in the business and managemental affairs of the petitioner qua the schools in question till the matter is finally decided by the arbitrator, but at the same time, the petitioner shall not be entitled to use the name i,e, "The Lyceum" for conducting the business of her schools. She is, therefore, directed to change the said name to some other within a period of one month from today. Both these petitions are accordingly dismissed. No order as to the costs.