FIRM OF POLICE MALLIAH RAJESHWAR Vs. A R GANGADHAR AND CO

JUDGEMENT

(1.) .This is an appeal under clause (15) of the Letters Patent against the Judgment of our learned brother allowing C.M.A. No. 246 of 1961. The facts of the case as emerge from the material on record are briefly these. The plaintiffs are carrying on business in beedies with the Trade Mark " Police Malliah Rajeshwar." They obtained registration of their Trade Mark, which consisted of a design and label containing a picutre of Saint Gadge Maharaj in the middle and on both sides rectangular designs with yellow stripes surrounding a red patch of square with the inscription " Police Malliah Rajeshwar" in Telugu and Hindi. Respondents are a firm of merchants carrying on the business of manufacturing a nd selling beedies under the name of "Murlidhar and Kamaldhar." The respondents initiated rectification proceedings under section 56 of the Trade and Merchandise Marks Act, 1958, alleging that the appellants obtained registration of their Trade Mark on a misrepresentation that the picture in the label was that of their forefather. That action is pending before the Registrar appointed for that purpose.

(2.) While so, appellants laid an action against the respondents for damages for infringement of their Trade Mark and for a perpetual injunction restraining the respondents, inter alia, from manufacturing, affixing or otherwise using in connection with their business any label which would be a colourable imitation of the plaintiffs' Trade Mark. The chief averments in the plaint are that the plaintiffs have been manufacturing beedies with their Trade Mark for over 17 or 18 years, that they had their Trade Mark registered in 1949, that these beedies had acquired a reputation and had extensive sale in Adilabad and Nizamabad districts, that they had become entitled to the exclusive use of the said Trade Mark and that the defendants have infringed their Trade Mark by using the same mark in connection with the beedies manufactured by them. The suit was resisted by the respondents who denied that the plaintiffs were entitled to the exclusive use of the Trade Mark. They pleaded that this was adopted as the Trade Mark of a firm which was formed in 1946 to carry on business in beedies under the name and style of P.M. Ram Das & Co., in which the plaintiffs had a twoannas share and the defendants eight-annas share, that the plaintiffs obtained registration of this Trade Mark by practising fraud upon the concerned authorities and that they had applied to the Registrar under section 56 of the Trade and Merchandise Marks Act for cancellation of the registration of the Trade Mark. Pending this suit, the appellants applied for the issue of a temporary injunction. 'The trial Court granted the injunction on the ground that the appellants were the registered proprietors of that mark.

(3.) This order was made the subject-matter of C.M.A. No. 246 of 1961 filed by the aggrieved respondents. The learned Judge accepted that appeal and dissolved the temporary injunction as he felt that the balance of convenience did not warrant the issue of a temporary injunction and that their interests would be safeguarded by passing an order appointing the defendant, A.R. Gangadhar, as the receiver for the sale of the beedies manufactured and sold with the Trade Mark of Saint Gadge Maharaj and directing that he shall file a statement of accounts in the lower Court every three months pending disposal of the suit and be subject to the further orders of the Court of the District Judge, Nizamabad, and that defendants i and 2 should give security for Rs. 24,000 to the satisfaction of the District Judge, Nizamabad, within a month. Dissatisfied with this judgment, the plaintiffs have brought this appeal. It is urged by the learned. Advocate-General in support of this appeal that so long as the registered Trade Mark was not cancelled, the plaintiffs were entitled to protection in the shape of an injunction restraining the defendants from passing off their goods with the mark identical to that of the plaintiffs. He contends that when once a prima facie case is made out by the plaintiffs, the Court should proceed on the assumption that the balance, of convenience lies in the issue of a temporary injunction preventing the defendants from passing off their) goods.