Arun Bhansali, J. - (1.) THIS appeal under Order XLIII, Rule 1(r) CPC is directed against order dt. 12.01.2012 passed by the District Judge, Jodhpur Metropolitan, whereby, the application filed by appellant -plaintiff seeking temporary injunction against the respondent -defendant from manufacturing and selling Wax Polishes, Diamond Abrasive, Super Glosser Liquid, Diamond Tools, F.F. Floor Polishing Machine, Stone and Floor Abrasive, Stone Dye, Master Coat, Mother Coat, Water proofing, Heat resistance chemical, Polish being used on Stone, Tiles and Glass ('the Business') in the name of trade name of 'NUSHAR' during the pendency of the suit was rejected. The appeal was admitted on 11.02.2013 and, when it was taken up for consideration of stay application, with the consent of counsel appearing for the parties, the appeal itself has been finally heard.
(2.) THE facts in brief are that M/s. Nushar Engineering Works, through its Proprietor Narendra Kumar Joshi ('the NEW') filed a suit against M/s Santosh Traders, inter alia, with the averments that the NEW is a proprietorship firm and its proprietor is Narendra Kumar Joshi, who is involved in the Business for last many years with the trade mark/firm name of NUSHAR; the plaintiff alongwith its family firms is using the said trade mark/firm name for the Business since 01.01.1992, the family firms, inter alia, includes one Nushar India Future Tech Pvt. Ltd. ('the NIFTPL') M/s Suraj Trading Corporation was first started by the proprietor in the year 1991 and ever since 01.04.1992 the trade mark/firm name NUSHAR was being used by the plaintiff -proprietor through family firms and for family and business requirements. The said proprietor had applied for registration of the trade mark NUSHAR on 22.04.1997 and its Trade Mark Application number is 760104 and in the application it was claimed that the said trade mark was being used since 01.04.1992 and the process of registration is still pending. It was then claimed in the plaint that the products with the trade mark/firm name NUSHAR are of high quality and very popular in the market and no one else is entitled to use the said trade mark. It was alleged that defendant M/s Santosh Traders was involved in manufacturing and selling of similar products with a similar trade mark NUSHAR, which is absolutely illegal and violation of plaintiff's trade mark rights. Allegations were made regarding 'passing off' of the goods by the defendant M/s. Santosh Traders in the name of plaintiff's trade mark NUSHAR. It was claimed that the plaintiff was entitled to mandatory injunction for production of accounts and thereafter damages from the defendant; permanent injunction was claimed against the defendant from using the trade mark/firm name NUSHAR for manufacture, sale etc., of the goods similar to goods being manufactured by the plaintiff. It was stated that the cause of action for filing suit arose on 20.09.2011 when the plaintiff came to know that the goods are being sold in the trade name NUSHAR by the defendant in various cities including Jodhpur and, therefore, the cause of action has arisen at Jodhpur.
(3.) BASED on the averments as noted hereinbefore, relief of permanent injunction was sought against the defendant not to manufacture and sell goods in the name of NUSHAR and mandatory injunction for recovery of goods from the possession of defendant and appointment of Receiver/Commissioners for calculating the profit earned by the defendant.;