N.N.Mathur, J. - (1.) We have heard Mr. J.P. Joshi learned counsel for the appellant and Mr. Ashok Soni learned counsel for the respondent caveator.
(2.) Having heard the learned counsel for the parties, we are of the view that the instant special appeal is not worth admission. The 2nd respondent Bharat Lal filed a suit under the provisions of Trade and Merchandise Marks Act, 1958 (hereinafter referred to as the Act) in the Court of District Judge, Jodhpur seeking injunction against the appellant to restrain him from using the registered trade mark BIC for which he was entitled to use exclusively. The trial Court granted injunction in favour of the plaintiff, but the same was vacated by the learned Single Judge of this Court. The matter was carried to the Apex Court. The Apex Court while dismissing the special leave to appeal by order dated 9.5.2001 directed the trial court to expedite proceedings and dispose of the suit within six months. It is relevant to mention here that a rectification application was also filed by the appellant before the Gujarat High Court on 11.12.2000 for suitable amendment in the Registration Certificate. The said application for rectification is still pending. Thus, the application was filed under Section 111 of the Act with a prayer to stay the proceedings till the disposal of the rectification application before the Gujarat High Court. The said application has been rejected by the order of the trial court on 13th August, 2002. The petitioner challenged the said order by way of petition under Articles 226 and 227 of the Constitution of India. The learned Single Judge confirmed the finding of the trial court to the effect that unless and until the case of the defendant falls within the purview of Section 111 of the Act the proceedings in the pending suit cannot be stayed. The learned Single Judge also observed that as the Apex Court has directed the trial Court to decide the suit within the time framed provided by the order of the Apex Court no interference is called for in exercise of powers under Articles 226 and 227 of the Constitution of India.
(3.) It is contended by Mr. J.P. Joshi learned counsel for the appellant that the learned Single Judge has failed to analyse the provisions of Section 111 of the Act in right perspective. As regards the time framed for disposal, it is submitted that the Apex Court has not restricted the parties to avail their rights if available in law.;