- (1.) The defendants in civil suit no. 8a of 2004 on the file of the District Court of mandaleshwar are the appellants. That suit was filed by the respondent herein for a declaration that the defendants do not have any right to sell pan masala, gutkha, supari and supari mix or any other goods under the trade mark 'manikchand' which is de- ceptively similar to the mark 'malikchand' used by the plaintiff, for a perpetual in- junction restraining the defendants from dealing in or selling the above articles un- der the name/brand 'manikchand1 and to confiscate and destroy the above goods in the custody of the defendants and for other consequential reliefs. The plaintiff also filed exer I. A. No. 2 of 2004 under Order XXXIX rules 1 and 2 of the Code of Civil Procedure, 1908 (for short the "c. P. C. ") seeking an interim injunction pending suit, restraining the defendants from selling the products referred to above under the name manikchand'. The trial court passed an ad-interim order of injunction as sought for by the plaintiff. The defendants appeared and filed their objections. They also filed an application, I. A. No. 5/2004, under order XXXIX Rule 4 of the C. P. C. seeking to get vacated the ad-interim injunction granted by the trial court. Various documents were produced by the parties and the genuineness and validity of the documents produced, were mutually challenged. The trial court, by order dated 06. 04.2004, held that the plaintiff has made out a prima facie case for an interim injunction and that the balance of convenience was in favour of the grant of an in terim injunction as sought for by the plaintiff. Thus, the trial court confirmed the ad- interim order of injunction granted by it earlier and allowed I. A. No. 2/2004 and dismissed I. A. No. 5 of 2004. The defendants filed an appeal before the High Court of Madhya Pradesh under Order XLlll Rule 1 (r) of the C. P. C. The High Court, on a consideration of the arguments raised before it, came to the conclusion that the order passed by the trial court could not be said to be incorrect, arbitrary or perverse, justifying interference with the discretion exercised by the trial court to grant the interim injunction. The High Court, thus, dismissed the appeal; but it directed the trial court to conclude the trial of the suit expe- ditiously, and finally dispose it of, preferably within a period of six months from the date of receipt of the copy of the order which was passed on 11. 05.2004. The defendants have challenged this order before this Court in this appeal.
(2.) It is seen from the pleadings, the other materials produced, the orders passed and the arguments raised before us, that this is a passing off action. The case of the plaintiff is that the plaintiff and its predecessors were using the mark 'malikchand' in its packets containing pan masala, supari, gutkha and supari mix kept for sale. Its plea is that the defendants are seen to be marketing the same products under the name 'manikchand. The products are marketed in pouches that are deceptively similar to the ones used by the plaintiff and this misleads the customers seeking to purchase the products of the plaintiff. The plaintiff along with its predecessors, being the prior users of the mark 'malikchand', the plaintiff is entitled to prevent the de -. fendant from marketing their products under the name 'manikchand'. Since the action of the defendant would lead to the plaintiff suffering irreparable injury and i ncurring monetary loss and loss of reputation as the products marketed by the defendants were of sub-s'tandard quality as could be seen from various prosecutions launched against the defendants under the prevention of Food Adulteration Act, the balance of convenience was in favour of the grant of an injunction in its favour. The defendants challenged the claim of the plaintiff of prior user. The defendants also questioned the three unregistered assignments relied on by the plaintiff, the basis on which the right to use the mark 'malikchand' is claimed by the plaintiff and also the claim of the plaintiff that the mark 'malikchand - was being used from the year 1960 or so as claimed by it. It is also contended by the defendants that the defendants market quality products, under the label 'manikchand' and their products had gained great reputation in the market. The defendants were paying huge amounts by way of tax and excise duty. The defendants had been marketing the goods for a considerable time and the plaintiff as a rival trader would have been aware of that fact and the approach of the plaintiff to the court was highly belated and an order of injunction pending suit was neither warranted nor justified. The application for interim injunction was liable to be dismissed. The defendants were prepared to maintain correct accounts of their sales -pending final disposal of the suit. The suit itself was a counter blast to the suit filed by the defendants on the original side of the High Court of Bombay, inter alia, seeking a permanent injunction against the present plaintiff from using the trade mark 'malikchand' which was deceptively similar to the mark 'manikchand' used by the defendants. The suit was filed without bona fides and the forum for action was chosen without bona fides. The suit itself lacked merit.
(3.) It is seen that at the relevant time, neither party had a registered trade mark for the respective marks claimed by them, though it appears that both of them have subsequently applied in that behalf and their applications are pending.;