By means of filing this appeal under the provisions of Order 43 Rule 1(r) of the Code of Civil Procedure, the appellant who is the original plaintiff, has questioned legality of order dated August 23, 1996 rendered by the learned Chamber Judge, City Civil Court, Ahmedabad, below Notice of Motion exh.5, in Civil Suit no.3354/95.
The plaintiff is engaged in the business of marketing soap, detergent powder, detergent cakes etc. in the name and style of "M/s. Monita Chemicals" which is a sole proprietory concern. It is the case of the plaintiff that in order to distinguish the goods being marketed by him he has adopted the Trade Mark like "Monita" and "Madhuri". The plaintiff has claimed that he has applied for registration of Trade Mark "Madhuri" to the competent authority on May 15,1992 and the same is pending for consideration. According to the plaintiff, the defendant is marketing goods under identical Trade Mark "Madhuri" causing damage to the plaintiff. The plaintiff, has therefore, instituted Regular Civil Suit no.354/95 in City Civil Court, Ahmedabad and has prayed for declaration and injunction. During the pendency of suit, the plaintiff took out Notice of Motion and prayed the Court to restrain the defendant from manufacturing and marketing goods under the Trade Mark "Madhuri". The learned Judge granted exparte ad-interim injunction as prayed for and issued notice to the respondent.
On notice being served, the defendant contested the application vide exh.16 and averred that as user of the Trade Mark by the defendant is earlier in point of time, the ad-interim injunction granted should be vacated. The learned Chamber Judge, after hearing the learned Counsel appearing for the parties, has vacated the exparte ad-interim injunction by an order dated August 23,1996, giving rise to the present appeal.
The fact that the defendant has applied for registration of Trade Mark on May 16, 1995, wherein user of Trade Mark is shown to be since 1982 is not in dispute. It is true that the plaintiff has also applied for registration of the same Trade Mark by making application on May 15,1992, but in the said application,the plaintiff has mentioned user of the said Trade Mark since 1988. On appreciation of documents produced by the parties, the learned Judge has rightly come to the conclusion that user of Trade Mark "Madhuri" by the defendant is earlier in point of time than that of the plaintiff and, therefore, the plaintiff is not entitled to the injunction as claimed for. It hardly needs to be emphasised that in a case where Trade Mark is not registered, early use of the same becomes relevant for the purpose of deciding the question whether interim relief should be granted or not. On the facts and in the circumstances of the case, no exception can be taken to the finding recorded by the learned Judge that user of the Trade mark by defendant is earlier than that of the plaintiff. The learned Judge has correctly applied the principles of law governing grant of injunction in the matter of passing of action. Having regarding to the facts and circumstances of the case, I am of the view that no case is made out by the appellant for interfering with the impugned order and, therefore, the appeal is liable to be dismissed.
Though the defendant has produced certain bills along with a list to substantiate its claim,I am of the opinion that interest of justice would be served if the defendant is directed to render accounts of sales of the products manufactured and marketed by it under the Trade Mark "Madhuri". Hence, the respondent-defendant is directed to furnish accounts before the Trial Court regarding sale of goods manufactured and marketed under the Trade Mark "Madhuri". Such accounts shall be furnished every six months.
Subject to the above-referred to directions, the appeal stands summarily dismissed.
September 23,1996( J.M.Panchal,J. )