TARUN AGARWALA, J. - (1.) THE plaintiff/respondent filed a suit under Section 29 read with Section 134 of the Trade Marks Act, 1999 praying that a decree be granted declaring that the defendants/petitioners are not entitled to use the trade mark which is deceptively similar to the trade mark of the plaintiff and, that a decree for a permanent injunction be issued restraining the defendant from using the trade mark No. 154, which was deceptively similar to that of the plaintiff in the trade of bidis.
(2.) ALONG with the suit, an application under Order 39 Rule 1 of the Code of Civil Procedure (in short, CPC) was filed. The Court below, after considering the matter, allowed the application for grant of a temporary injunction and issued an order dated 3rd September, 2008 restraining the defendants from using the decep­tively similar trade mark as that of the plaintiff during the pendency of the suit. The defendants, being aggrieved by the grant of temporary injunction, has filed the present writ petition under Article 226 of the Constitution of India. Heard Shri R.B. Singhal, the learned Counsel for the defendants/petition­ers and Shri Arun Kumar Singh, the learned Counsel appearing for the plaintiff/respondent.
(3.) A preliminary objection was raised with regard to the maintainability of the writ petition and, in this regard, the learned Counsel for the petitioners submitted that the provisions of CPC vis-a-vis Order 43 Rule 1 of the CPC is not applicable since the injunction has been granted under Section 155 of the Trade Marks Act, against which no appeal lies and, consequently, the writ petition under Article 226 of the Constitution was the only forum which the petitioners could avail.;