Sahidullah Munshi, J. - (1.) This is an application praying for injunction in view of the leave granted by the order dated 25th October, 2017 passed by the Hon'ble Division Bench in APO 455 of 2017. The said order dated 25th October, 2017 has been annexed to this application being Annexure-H at page 75.
(2.) In the present application, the petitioner has canvassed that subsequent to the filing of the suit from an interlocutory order passed in Suit No.475 of 1992, an appeal was filed wherein an order was passed on 8th October, 1993 (Annexure-Y3 at page 31) by which the appeal was disposed of. Paragraph 17 of the said order categorically mentioned that ".........We have compared the cartons and we have got no doubt in our mind that the cartons are deceptively similar. No records have been produced by the respondent Nos.1 and 2 in support of the allegations of the user of the said mark in relation to the said hair oil. Significantly, the Director of the Drug Controller, West Bengal and Kakdwip Panchayat were subponned to produce the drug licence since 1965, if any, of the first respondent as well as the trade Licence of the first respondent. It transpired that no drug licence was ever obtained the first respondent end the said respondent applied for and obtained a Trade License for dealing in rice and kerosene oil. The appellant built up a goodwill ad reputation or more than a decade whereas the product of the first and second respondents is of recent origin. The rectification application is till pending. Much will depend on the result of the said application."
(3.) The present application has been filed by the said appellant/plaintiff stating that in the meantime the application for rectification has been allowed by another order dated 5th August, 2016, a copy of which is appearing at page 59 of the present application. In the said order the Hon'ble Division Bench (where I was also a party) held that "the representative of the appellant gave oral evidence that the mark in question was not used in relation to hair oil. He said no hair oil was sold under the impugned trade mark. The appellant could not be expected to prove the negative. The respondents would have to prove the positive, but they did not adduce any evidence.;