A. N. Verma J. - (1.) These two connected appeals can be disposed of by common judgment as the issues raised therein are identical. The appeals are directed against an ad interim injunction issued by the court below restraining the appellants from using the trade-mark of the plaintiff respondent in respect of manufacture and sale of biries.
(2.) The plaintiff respondent filed a suit against each of the two sets of defendants - appellants on these assertion. The plaintiff manufacturers and sells biris with the trade-mark "222" and is the registered proprietor of a trade-mark no. 88522 in class 94 consisting of Jebel and Jhilli (wrappers) and the numeral "222" and copyright also in respect of the same certificate were issued by competent authorities in favour of the plaintiff in this behalf under the Trade mark Merchandise Act and the Copyright Act some more than 40 years ago. The registration of the said trade-mark and copy-right is still in force and the plaintiff has the exclusive right to the use thereof. The defendants have however, who are neither registered under the Trade Marks Merchandise Act, nor under the Copyright Act, started manufacturing and selling biris under a trade mark consisting of the numeral "222" special professional" which is so deceptively similar to the registered trade mark of the plaintiff that the purchasers of this comodity who are mainly illiterate persons are bound to be misled. The plaintiff asked the defendants to refrain from using the plaintiff's trade mark but without any effect. The loss which the plaintiff is suffering as a result of the unlawful act of the defendants, cannot be calculated in terms of money and hence the suit for perpetual injunction restraining the defendants from infringing the plaintiff's registered trade mark No. 88522 and any other trade mark/label of jhilli which is indentical with or deceptively similar to the plaintiff's registered trade mark. in the suit the plaintiff also filed applications for ad interim injection restraining the defendants from using the trade mark of the plaintiff-respondent and from passing of their goods under the trade mark and label and Jhilli of the plaintiff-contentions.
(3.) The application was contested by the appellants who disputed in the first place that their biries were being sold under a trade mark or label and wrapper which may bear any similarity to those being used by the plaintiff-respondent. In the second place, it was contended that no ground for issuing ad interim injunction had been made out.;