Shiv Kumar Sharma, J. - (1.) An interim injunction was sought by the plaintiff-respondent to restrain the defendant appellant from using the registered trade mark of 'CROREPATI GOLI' and 'CHAMRIA'. Learned court of Additional District Judge No. 2 Sikar vide order dated January 23, 2001 allowed the application mc ./ed under Order 39 Rules 1 and 2 CPC, by the plaintiff-respondent and resi rained the defendant-appellant from producing, selling, packing and carrying on any business or trade mark of 'CROREPATI GOLI' and 'CHAMRIA'. Against this order of the learned court below that the defendant appellant has preferred the instant miscellaneous appeal. The parties hereinafter shall be referred in the same manner as they were arrayed in the suit.
(2.) Contextual facts depict that a suit for permanent and mandatory injunction was instituted by the plaintiff against the defendant. Alongwith the suit an application under Order 39 Rules 1 and 2 CPC was also filed seeking interim injunction in mandatory form, with the averments that the plaintiff firm was involved in the business of manufacturing, distributing and selling Ayurvedic Choorans, tablets etc. The firm is known by the name of 'CHAMRIA' and its product 'CROREPATI GOLI' was registered under the Trade and Merchandise Marks Act, 1958 and therefore no other person except the firm was entitled to use the said trade mark. The defendant who used to carry on his business in the name of Agarwal Drug Store, did not have any association with the firm. When the defendant started yet another business in the name of M/s. Geegraj Devi Dutt and proceeded to use the name of 'CROREPATI GOLI' and 'CHAMRIA' a criminal complaint was lodged against him and the defendant admitted on July 30, 1958 that he was wrongly using the said names and made a commitment that he would not use the said names in future. For some time he restrained himself and kept his promise but again he started misusing the names of 'CROREPATI GOLI' and 'CHAMRIA'. On these allegations restrained order was asked for by the plaintiff against the defendant.
(3.) The defendant submitted reply stating therein that plaintiff firm was a Hindu Undevided Firm and there has never been any partition of the Hindu Undevided Family and the family firm got the trade mark 'CROREPATI GOLI' registered in its name 'CHAMRIA' being the name of the caste, was not a registered trade mark. The defendant never made any acknowledgment except that Kamal Kumar under threat of police had got blank papers signed from him. A suit for partition had been instituted by Peeyush in the court of ADJ No. 2 Sikar wherein Kamal Kumar and defendant were also party. During the pendency of the partition suit, present suit was liable to be stayed. The defendant being the son of original partner Shri Geegraj, became a partner of the firm since his birth and therefore was entitled to use the name 'CROREPATI'. In the Registration certificate dated July 18, 1958, plaintiff firm was shown as joint family and Shri Geegraj as Karta therefore the firm cannot be treated to be anybody's personal property. Criminal complaint filed by Kamal Kumar against the defendant was dismissed. Alongwith other legal pleas counter injunction was sought by the defendant to restrain Lal Chand, Shiv Lal, Kashi Prasad, Banwari Lal, Ramavtar etc. from carrying on the business in the name of M/s. Nand Ram Geegraj Chamria and using trade mark 'CROREPATI GOLI' The plaintiff submitted rejoinder. Learned court below after hearing the counsel appearing for the parties issued interim injunction as indicated hereinabove.;