Harbans Lal, J. - (1.) The Petitioner filed a suit in the Court of the District Judge, Jullundur, for the issuance of a per -manant injunction against the Respondent relating to his registered trade mark. During the pendency of the same, an application under Order XXXIX rules 1 and 2 read with Sec. 151(sic) Code of Civil Procedure (hereinafter called the Code), for the issuanse(sic) a temporary inunction to restrain the Respondents from using the trade mark of 'VEMCO' which is alleged to be deceptively similar to 'BEMCO' of the Petitioner, registered under the Trade and Merchandise Marks Act, was relied The Additional District Judge, Jullundur, vide his order dated January 10, 1979, issued the ad interim injunction. The Respondents challenged the same in appeal in F. A O. No. 50 of 1979, which was admitted on February 5, 1979 but the operation of the ad interim injunction was not stayed. The case of the Petitioner is that the ad interim injunction had been disobeyed by the Respondents consciously and deliberately and as such, they are guilty of the Contempt of Court under Sec. 10 of the Contempt of Courts Act, 1971(sic) (hereinafter called the Act). In reply, the Respondents besides controverting the allegations of the Petitioner on merits, have raised a preliminary objection that against the violation of an ad interim injunction, a petition under Order XXXIX Rule 2A of the Code was filed by the Petitioner in the trial Court which is still pending as such, the present petition is liable to be dismissed.
(2.) According to the learned Counsel for the Petitioner, though this petition had been filed and is pending in the trial Court but the proceedings in the entire suit including the proceedings in the said petition had been stayed by the trial Court as a result of the stay order passed in Civil Revision No. 247 of 1979 (M/s Vikas Manufacturing Co. Roper v/s. M\s Bharaj Manufacturing Co. (Regd) Jullundus), by Goyal, J., on January 10, 1979. According to the learned Counsel for the Respondents, the said revision petition was filed under Sec. 115 of the Code(sic) against the order of the Additional District Judge, Jullandur, dated January, 10, 1979, dismissing the application of the Respondents under Sec. 111 of the Trade and Merchandise Marks Act, for the purpose of recitation (sic) and that only the proceedings in the main suit were stayed. Attention was also drawn to the order of the Division Bench passed on February 5, 1979, in F. A. O. No. 50 of 1979, a perusal(sic) of which shows that the above referred to first appeal and the civil revision were ordered to be beard together and the request for the grant of stay of the ad interim injunction in the suit was declined.
(3.) It was contended by the learned Counsel for the Petitioner, that the order regarding interim injection issued by the trial Court had merged in the order of the High Court in the first appeal viz, F A. O No. 50 of 1979, by which the stay of interim injunction was refused and as such, no proceedings under Order XXXIX Rule 2A of the Code, for disobedience of the ad interim injunction were maintainable in the trial Court, Reliance in this regard was placed on Collector of Customs, Colcutta v/s. East India Commercial Co. Ltd., Colcutta and others : A.I.R. 1963 S C 1124. The ratio of this decision, however, renders no help to the contention of the counsel for the Petitioner Therein it was clearly held that when an appeal filed against an order is finally disposed of, the order therein will be the operative order and the order of the lower Court will stand merged in the order of the appellate Court irrespective of the fact whether by the said order the order under appeal is reversed, modified or affirmed. In the present case, it is not disputed that the appeal filed by the Respondents has not yet been finally disposed of. The mere fact that the operation of the ad interim injunction issued by the trial Court was not stayed by the High Court, cannot be interpreted to mean that the ad interim order by the trial Court has been superseded by an order of the appellate Court. It is the order of the trial Court which is still in operation till the matter is considered finally by disposal of the appeal.;