V.G.Palshikar, J. - (1.) This appeal is directed against the order passed by the Additional District Judge No. 1, Jodhpur on 11.8.99 in Civil Misc. Case No. 43/99 on an application under Order 39 Rules 1 & 2 C.P.C. By the impugned order, the learned trial Judge injuncted the defendant present appellant from using a trade mark allegedly belonging to the plaintiff present respondent. The effect and operation of the order was, however, stayed by this Court when the appeal was admitted. Hearing of the same was, therefore, expedited and the matter has been heard, on 16.2.01. The matter was then reserved for orders .
(2.) The facts giving rise to the present appeal stated briefly are that a suit for permanent injunction was filed in the trial court by the original plaintiff Bharat Lai (hereinafter referred to as 'the plaintiff), who is respondent-plaintiff in this Court against the original, defendant Chunni Lal (hereinafter referred to as 'the defendant'), who before this Court is appellant. The plaintiff had alleged that since the year 1968, he is manufacturing under the trade name M/s. Bharat Industrial Corporation tractor, hydraulic pump, and tractor parts. The applicant has specifically averred that he manufactures various tractor parts with specialisation in control valve, safety valve and spool and lovering assembly tractor parts which have a distinct place in the country and the plaintiff has a reputation in this regard. It would be necessary in the circumstances to note that in para 2 of the plaint, the plaintiff has averred that he has a trade mark duly registered for the tractor parts manufactured by him and he has described. JUDGEMENT_103_CCC3_2001Image1.jpg JUDGEMENT_103_CCC3_2001Image2.jpg Throughout the plaint, the plaintiff has averred that he has acquired by his own intelligence and labour a special reputation in the designs that he is manufacturing. It is then averred that it is duly registered under the provisions of the Trade & Merchandise Marks Act, 1958 (hereinafter referred to as "the Act') and it is valid up to 1.3.03. Then in para No. 5, it is alleged that the plaintiff knew the defendant and, therefore, in the year 1976, he appointed the defendant as his agent to sell the tractor parts manufactured by him. Thus, on the pleadings of the plaintiff himself, the defendant was his distributor since 1976. It is nowhere alleged in the plaint as to whether this distributorship was any time terminated by the plaintiff. Then it is claimed by the plaintiff that he read a notice published in Rajasthan Patrika dated 12-4- 1999 whereby the defendant had applied for registration of the trade mark BIC and cautioned others not to use it. It was after publication of this notice that the plaintiff came to know that the defendant is planning to manufacture and sell tractor parts using BIC monogram as his own, which the defendant had no right to use. Para 9 contains the averments that if the defendant is not restrained from manufacturing tractor parts under the trade mark of BIC and sell the same, irreparable loss would be caused to the plaintiff. The suit was filed u/s. 105 of the Act. The cause of action is alleged to have occurred on 12.4.99 when the notice was published. The plaintiff consistent with his claim also filed an application for temporary injunction on almost identical averments. In the injunction application also, the averments regarding infringement of trade mark have been mentioned, which read as under:- JUDGEMENT_103_CCC3_2001Image3.jpg JUDGEMENT_103_CCC3_2001Image4.jpg
(3.) The defendant contested the application by filing appropriate reply and claimed that no case whatever for grant of injunction is made out. It was claimed that no case for entertaining the suit itself is made out, there is no cause of action much less any case for injunction under order 39 C.P.C.;