Rakesh Tiwari, J. - (1.) - This petition was heard on 4.10.2004, 5.11.2004, 20.12.2004 and on 21.12.2004. A mention was made by Sri A.K. Singh, Advocate that Sri Prabhat Agarwal, counsel for the respondents has instructed him to inform the Court that he cannot come to the Court as he has met with an accident and that he has no instructions in the case. The case may be decided on the basis of his arguments advanced earlier.
(2.) THE petitioner is a partnership firm registered under the Indian Partnership Act, 1932. It carries on the business of manufacture and sale of bidis. THE petitioner-firm was established in or near about 1932. Since then it has been using a trademark upon the labels on its biris, comprising of a picture of 'Lord Ganesh' ; the name and the expression 'Manglore Ganesh Beedi' and the numerical 501. The trade mark of the petitioner has been registered under the provisions of Trade and Merchandise Act, 1958 (hereinafter referred to as the 'T.M.M. Act') with the following particulars : Sl. No. Trade Mark Reg. No. Date Goods Clars 1. Words 'Manglore Ganesh Bidis' 6425 26.10.1942 Bidis 34 2. Picture of 'Lord Ganesh' 6426 26.10.1942 Bidis 34 3. Words "Ganesh Bidis" 113569 22.9.1945 Bidis 34 The controversy in the present writ petition pertains to use of the aforesaid label or trade mark. The petitioner has challenged the maintainability of Suit No. 401 of 1993 in the Court of City Munsif, Meerut under Section 9 of the Code of Civil Procedure. The petitioner has also challenged the validity and correctness of the order dated 28.7.1994 passed by the District Judge, Meerut in First Appeal From Order No. 304 of 1993, Gokhlesh Pathak v. Manglore Ganesh Beedi Works. By the impugned order dated 28.7.1994, the District Judge has restrained the petitioner from using trade mark containing the word 'Ganesh' and device of 'Lord Ganesh' upon the label in respect of Bidis manufactured by the petitioner during the pendency of Suit No. 401 of 1993 in the court of City Munsif, Meerut.
(3.) IT is claimed that the petitioner has been selling its product under the aforesaid trademark which have acquired reputation and popularity amongst trade and public. IT is said that its sale had exceeded Rs. 100 crores per annum in the last five years before filing of the suit. IT is further claimed that about one lakh bidi workers were engaged at that time in the manufacture of bidis sold by the petitioner and thousands of employees were directly or indirectly connected with sale, transportation, distribution and such other jobs related to its business of sale of bidis under the said trade mark. It is also claimed that popularity of the petitioner's product is due to its efforts which have created enviable demand of its goods in public and that the people using the petitioner's product would not purchase it without the picture of 'Lord Ganesh', on the label of the product which distinguishes its superior qualities of product from other manufacturers of bidis. Facts of the case :;