J.N. Sarma, J.
1. This appeal has been filed against the ex-parte order dated 25th March/96 in T.S. No. I of 1996 by the Learned District Judge, Kamrup.
2. A suit was filed by the respondents for declaration and permanent injunction and for rendition of accounts under Section 29 for restraining infringement and under Section 27(2), Section 105(C) & Section 106 alleging passing off under Trade and Merchandise Marks Act, 1958 (hereinafter called the Act). The following reliefs were prayed for:
(1) For permanent injunction restraining the defendants their servants, agents, atterneys etc. from manufacturing selling and/or offering for sale directly or indirectly dealing in candles under the trade mark PRINCE FIGHTER or any other trade mark as may be deceptively similar to the trade Mark ROCKET & DEVICE of the Rocket and particular get up and passing of the candles of the defendants as and for that of the plaintiffs.
(ii) For declaration that the plaintiffs and their users of franchise are the registered owners of the candles with the registered trade mark Rocket & Device of the Rocket with distinctive get up and is only authorised to manufature and market the said products and further declaration that the using of the trade mark Prince 'Fighter by the defendants deceptively and confusingly similar to that of the plaintiffs is illegal and infringement and passing off under Section 29 and under Section 27(2), Section 105(C) and 106 of Trade and Merchandise Marks Act, 1958.
(iii) For rendition of accounts.
3. Along with the plaint an application was filed fo ad-interim injunction under Sections 105 and 106 of the Act of 1958 read
with order 39, Rule 1, 2 and 7 of the Code of Civil Procedure. The prayer made in that appliction is as follows:
(1) To grant an ex-parte ad-interim injunction restraining the opposite parties in any way using the distringtive get up, design and arrangement of the petitioners' trade mark Rocket & Device of Recket and in any way passing off the candales marked with the labels having distinctive get up design and arrangement of the petitioners' trade mark in particular and restrain them not to sale it.
4. The matter came first for orders on 20-3-1996 before the learned District judge. He heard the matter in part and on that date fixed the next date on 22-3-1996. On 22-3-1996 the Learned counsel for the plaintiffs was not ready to argue the matter and the matter was further adjourned to 25-3-1996. On 25-3-1996 the matter was heard and the Learned Judge passed the following orders :
'On perusal of the plaint and the annexed documents and on consideration of the submissions of the learned counsel for the plaintiffs, I am satisfied that the plaintiffs have a strong prima facie case to go into trial. I am also satisfied that in the entire circumstances, the plaintiffs prayer for ex-parte ad-interim injunction needs to be considered without giving notice of the application to the defendants so as to protect the interest of the. plaintiff. I agree with the submissions of the learned counsel for the plaintiffs that unless the ad-interim injunction is granted, the plaintiffs would be put to serious loss on account of marketing of other products under a trade mark deceptively similar to that of the plaintiffs. I therefore allow that prayer and order that an ad-interim order of injunction be issued against the defendants as applied for by the plaintiffs. Necessary notices shall also be issued simultaneously on the defendants to show cause as to why the ad-interim injunction should not be made absolute till disposal of the suit.'
5. It is the legality and validity of this ex-parte order of injunction which is challenged in this appeal.
6. I have heard Mr. M.K. Choudhury,
Learned Advocate of the appellants/petitioners and Mr. C.K. Sarma Baruah, Learned Advocate for the respondents.
6. A caveat was filed on behalf of respondents and on 10-4-1996 an interim order was passed by this Court and as agreed to by the Learned Counsel for both the parties this matter is taken up for disposal at the stage of admission itself.
7. The facts of the case as it emerges from the application under Order 41 Rule 5 of the code of Civil Procedure filed by the appellants are as follows:
(a) Appellant is a registered SSI unit and is carrying on a business of manufacturing and marketing of candles since about 1991 under the trade mark 'Prince Fighter' with device of 'Rocket'. The candles bearing the aforesaid trade mark are being marketed extensively since about the year 1991 in the different states of North East and by virtue of continuous and extensive use the trade mark of the appellant has acquired handsome reputation and good will in the States of the North East.
(b) On 8th January 1996 appellant also filed an application in the office of the Registrar of Trade Mark for registration of the aforesaid trade mark of the appellant and the provisional number on the same was allotted.
(c) Soon thereafter the respondent through its trade mark attorneys M/s. L.S. Davar & Co. served upon the appellant a cease and desist notice dated 30th January, 1996 calling upon the appellant to desist forthwith from selling or offering for sale in the market its candles under the trade mark 'Prince fighter' with the device of Rocket. In the said notice, the respondent claimed exclusive right in respect of the device of Rocket by virtue of registered trade mark Nos. 239963 and 258538.
(d) On 29th February, 1996, the appellant filed an application in the office of the Registrar of Trade Marks Act, 1958 and Rule 94 of the Rules made thereunder, for rectifiction cancellation of registered trade marks
Nos. 239963 and 258538 belonging to the respondent. The appellant prayed for cancellation or rectification of respondent's trade mark on various grounds.
(e) When the application dated 29th February, 1996 of the appellant was pending for disposal before the Registrar of Trade Mark the respondent filed a Title-Suit No. 1 of 1996 in the Court of the District Judge, Kamrup at Guwahati for declaration that the respondent is the only registered owner of the candles with the registered trade mark 'Rocket' and Device of the Rocket and for further declaration that the using of the trade mark 'Prince fighter' by the appellant is illegal under Sections 29, 27(2), 105(c) and 106 of Trade and Merchandise Marks Act, 1958. The Title Suit was also accompanied by an application for ad-interim injunction under the provisions of Sections 105 and 106 of Trade and Merchandise Marks Act, 1958 and under Order 39, Rules 1, 2 and 7 of the CPC.
(f) The learned District Judge after hearing counsel of the respondent for three days namely 20, 22nd and 25th March, 1996 and without issuing/serving notices to the appellant (whose centre of operation is Guwahati) was pleased to pass ex-parte ad-interim order of injunction dated 25th March, 1996. In this order the Learned Judge did not state the reasons or specify the circumstances due to which respondent's prayer for ad-interim injunction required immediate consideration without giving notices to the appellant.
8. The following points are urged by the Learned Counsel for the appellants/petitioners:
(a) In granting interim injunction ex parte, reason for the Court's opinion that delay in granting injunction would defeat the object of the injunction applied for, is mandatory, when in an ad-interim order of injunction ex-parte the reasons are not mentioned the order is invalid. The learned Judge in the instant case without explaining as to what are those circumstances which necessitate granting of ex-parte ad-interim injunction, merely stated that 'in the entire circumstances, the plaintiffs prayer for ex-parte ad-interim in-
junction needs to be considered without giving notice of the application to the defendants so as protect the interest of the plaintiff'. In the instant case the appellant was in the business of manufacturing and selling candles with the trade mark in question since last 5 years. The same was very much within the knowledge of the respondents all these years. The product of the appellant during this period started selling extensively in the North East. On 8th of January, 1996, the appellant also filed an application in the office of the Registrar of trade mark for registration of appellant's trade mark and the provisional number on the same was allotted. In the instant case the respondent has given no eason for its delay in bringing the suit. The learned Judge also failed to consider this aspect of the matter. ,
(b) When a prima facie case is made out by the appellant for rectification of the register, it would be ineuqkable to grant injunction especially when it would involve stopping their business altogether and when the plaintiff could be compensated by damages. In the instant case, it is noteworthy that the appellant on 29-2-J996 had filed an application before the Registrar of Trade Mark for rectification and cancellation of respondents registered trade marks Nos. 239963 and 258538. In the said application the appellant had made out a strong case for rectification/cancellation of registered trade mark of the appellant. The suit was filed when the said application was pending for disposal. These facts were not before the learned Trial Judge when the prayer for ex-parte ad-interim injunction was pressed.
(c) In the instant case the plaintiff/espondent suppressed the materials fact that the appellant had filed an application on 29-2-1996 before the Registrar of Trade Mark for the rectification/cancellation of their registered trade mark. The suppression of this material fact is vital and amounts to deliberate concealment and misrepresentation of material facts.
(d) In the instanct case thee has been a concurrent use of its trade mark by the appellants since last 5 years in the different
states of North. East Region. During this period the appellant has also made a name for itself and earned substantial good will. Its trade mark with the device of rocket is recognised with a distinct name 'Prince Fighter'. The product of the respondent is not in circulation in the North East. Moreover, the appellant also has made an application before the Registrar of trde mark for the registration of its trade mark. The learned Trial Judge committed grave illegality by failing to consider the concurrent use of its product by the appellant alongwith likelihood of confusion and balance of convenience in passing the ex-parte order of interim injunction.
(e) In the instant case the trade mark 'Rocket' of the respondent was no longer distinctive inasmuch as good many such trade marks are commonly in use in market since long. Even prior to the appellant starting its business many such trade marks were in the market. Hence the trade mark of the appellant had ceased to be distrinctive when the appellant had started its business in 1991. Hence the instant case is a case where the trade mark of the respondent had become publici Juris and in that view of the matter the learned Judge ought not to have granted injunction.
(f) Where the features of resemblance between the plaintiffs goods and the defendant's goods are common to the trade, the plaintiff must make out that the defendant's goods are like his by reason of something peculiar to him, and by reason of the defendants having adopted some mark, or device or label, or something of that kind. which distinguished the plaintiff's goods from other goods which have, like his, the features common to the trade. Uless he can establish
this he fails.
As stated earlier, in the instant case there is nothing distinctive or peculiar about respondent's trade mark, Many such trade marks are in use in the market. Since the features of the appellant's trade mark are common to the trade, no exclusive right over the trade mark can be claimed by the respondent.
(g) No trader by adopting and using a particular style of get up thereby acquires a right to prevent a rival or second trader using the same or a similar get up, unless the get up of the first trader has become so associated in the minds of the public with the first traders goods as to be distinctive of the goods of the first trader and of no other, Merely being first in the field does not confer any rights. It is the good will of the latter's business which the law seeks to protect, not simply the proprietors right to use the design or mark. It is seen in the instant case that the trade mark of the respondent had lost its distinctiveness when the appellant started its business of manufacturing candles in 1991. Even prior to 1991 itself there were many such similar trade marks in the market. Hence no exclusive right right can be claimed by the respondent over its trade mark.
(h) In the instant case there was no use of the trade mark by the respondent in the North East region for the time being upto a date one month before the date of the application (29-2-1996) filed by the appellant for rectification/cancellation of the respondents's trade mark. Moreover a continuous period of five years or long had elapsed during which there was no use of the trade make by the respondent in the North East Region. Hence in terms of Section 46 of the Act, the trade mark of the respondent is liable to be removed on ground of non use. So far as the contention of respondent allowing one M/s. Modern Candles to use the registered trade mark in the North East Region is concerned, the same has no sanctity in law being not in conformity with the provisions of the Act.
(i) In the instant case the rectification proceeding was initiated by the appellant prior to the respondent filing a suit. Hence in terms of Section 111(1)(i) of the Act, the proceeding before the trial Court cannot continue. Court in such cases should be circumspect in passing an order of injunction.
9. On the other hand Sri C.K. Sarma Baruah, Learned Advocate of the respondents raises the following preliminary objections :
(1) That no appeal has been provided in the Act of 1958 against an ad-interim order of injunction and as such no appeal is maintainable under Order 43, Rule 1(r) of the Code of Civil Procedure. It is submitted that appeal is a creature of statute and if an appeal is not provided by the statute, the question of entertaining an appeal does not arise.
(ii) That though the suit was valued at Rs. 100/- in paragraph 25 it has been stated that loss suffered by the plaintiffs would be to the tune of over Rs. 10,000,00/- (ten) lacs and as such a single Judge is not entitled to hear the appeal. The matter requires to be heard by the Division Bench.
(iii) That the order of injunction passed by the Learned Judge is absolutely legal and proper and the question of interference with the same does not arise.
(iv) That the power of this appellate Court to deal with an ex-parte order of unjunction is circumscribed. This Court must look only to the materials before the Learned District Judge and it cannot look to the other materials brought to the notice of the appellate Court which were not under consideration of the trial Court.
10. Before we proceed further let us take up two preliminary objection raised by Sri Sarma Baruah. Let us first take up point No. 11 regarding the jurisdiction of the single Judge to hear the matter.
11. According to suit valuation Act and Order 7, Rule 1(0 of the CPC required that the suit must be valued by the plaintiffs for the purpose of jurisdiction of the Court. So, the suit valuation Act describes the mode of valuing the suits for the prupose of determining the jurisdcition with respect thereto. The valuation of suit for the purpose of jurisdiction is regulated and governed by the averments made in the plaint. Jurisdiction does not depend on the result of a suit but on the nature of the claim as brought and the jurisdiction thus is datermined as stated by the plaintiff in the plaint irrespective of the result of the suit. As observed by the different Courts it is perfectly clear that when a suit is filed in a Civil Court, the pecuniary jurisdiction of the Court is primarily determined by valuation which the plaintiffs put upon the subject matter of the suit. Primarily the Court in order to determine its jurisdiction can look and rely on the valuation of the subject matter which is given in the plaint. At some point of time there was divergence of opinion on the point whether for the purpose of determining the forum of an appeal it is the value placed by the plaintiff on the subject matter of the suit or the value as found by the Court that determins the forum of the appeal. The majority view now is that it is the plaintiffs valuation in the plaint which controls/governs jurisdiction not only of the trial Court but of the appellate Court as well. The word value according to the majority view of different High Courts must be taken to be the value assigned by the plaintiffs in his claim and not the value as found by the Court. The valuation of the suit determins the forum of appeal. The theory that the forum of appeal depends upon the vale as found by the Court was not accepted being too vide. So, it is valuation put up by the plaintiff which determines the forum of the appeal. In the instant case as indicated above, the plaintiff valued the suit at Rs. 100/ - for the purpose of jurisdiction and the plaintiff now cannot make a sommersault and say that a single Judge of this Court has no jurisdiction to hear the appeal. So, this contention of Sri Sarma Baruah fails.
12. The next question is regarding the right of the defendant to file an appeal against the ad-interim order of injunction. In order to determine that question let us have a look at the Act. Section 109 of the Act of 1958 provides for appeal Sections 109(1)(2) and (8) arc quoted below:
'Section 109. Appeals -- (3) No appeal shall He from any decision, order or direction made or issued under this Act by the Central Government or from any Act or order of the Registrar for the purpose of giving effect to any such decision, order or direction;
(2) Save as otherwise expressly provides in Sub-section (1) or in any other provision of this Act, an appeal shall lie to to the High Court within the prescribed period from any
order or decision of the Registrar under this Act or the rules made thereunder.
(8) Subject to the provisions of this Act and of the rules made thereunder, the provisions of the Code of Civil Procedure, 1908 (5 of 1908), shall apply to appeals before a High Court under this Act.'
13. Sri Baruah in this connection draws my attention to Section 4 of the CPC Section 4 of the CPC came up for consideration before a Division Bench of this Court reported in 1994 (1) Gauhati LJ 1 (Azad AH, Dispur, Guwahati v. Housefed) wherein in paragraph 8 it has been pointed out as follows:
'The question then is Whether the provisions under Section 104(2) is 'a specific provision to the contrary' The expression 'a specific provision to the contrary' means that there must be a particular provision in the Code clearly indicting in itself, not merely by implication, in order to affect the special law or local law, Section 104(2) clearly provides that no further appeal shall lie from any order passed in appeal under Section 104 read with Order 43^ Rule 1. The words are plain and explicit and they must be given full effect. Therefore, it is a specific provision to the contrary' in the Code itself clearly indicating to affect Clause 15 of the Letters Patent. Therefore, no appeal shall He under Clause 15 of the Letters Patent from an appellate order of the learned single Judge dismissing or allowing the appeal exercising appellate jurisdiction under Section 104 read with Order 43, Rule 1, hence the present appeal is not maintainable. The view taken by us also finds support from a decision of the Bombay High Court reported as Krishna Yeshwant Shirodkar v. Subhas Krishna Patil, AIR 1989 Bombay 68 (DB), in which it has been held that where the appellate jurisdiction which is exercised is one under Section 104 the bar contained in Section 104(2) will necessarily operate, an has been pointed out by the Supreme Court in Shah Babulal's Case, AIR 1981 SC 1786.
14. That was a case wHere the question arose was whether a further appeal will lie to the Division Bench under Clause 15 of the Letters Patent against an order of the learned single Judge of this Court and this Court held that no such appeal shall lie. The meaning of Section 4 of the C.P.C. is a saving clause and it means that if anything in the code is in conflict with anything in a special or local law, the code shall not prevail to over right, the inconsistent provision. But at the same time the application of the Code is not barred where the special or local law is silent (see (1953) 57 Cal WN 948 (Sahadat v. Md. Hussain)).
15. A bare reading of Section 4 of the C.P.C. will show that it saves only the special or local law if it makes certain other provisions or procedures otherwise by the preamble of the Code of Civil Procedure it shall apply to all the civil courts. A perusal of Section 3 of the C.P.C. will show that the District Court is subordinate to High Court and the procedure for appeal and other things as provided in the Code of Civil Procedure shall apply to any order passed by the civil court in deciding the dispute under the Act 1958 inasmuch as that Act of 1958 has not laid down any other procedure for the disposal of the case. If some other procedure would have been made, no doubt, that procedure would have been in the field, that not being the position in a suit bing conducted by the District Court under the Act of 1958 would have all the trappings of the Code of Civil Procedure and it will be deemed to be a suit under the C.P.C. and if it is deemed to be a suit under the Code of Civil Procedure, the right of appeal against the ex partf order of injunction will spring up as provided by Section 104 read with Order 43, Rule 1(r), otherwise if this interpretation is not given there wiil be chaotic condition and a person will be without any remedy. No doubt, as contended by Sri Sarma Baruah it is correct that the right of appeal is not a natural or inherent right but at the same time the law ir also clear that if special jurisdiction is conferred to Civil Court without more that will attract all instances of ordinary jurisdiction of such court including right of appeal. Section 2(c) of the Act of 1958 defines that the District Court hap the meaning assigned to it in the C.P.C. Further Section 5 of the Act of 1958
defines action brought by a person as suit and Section 26 of C.P.C. provides for institution of suits. Suit has not been defined in the code. In terms of Section 26 it must be civil proceeding instituted by the presentation of a plaint or in such other manner as may be prescribed. So, as it is a suit as provided in Section 105 itself it will take all the trappings of civil suit in the absence of any other thing to the contrary and the right of appeal as provided in the Code of Civil Procedure shall flow from such institution of a suit as the Act of 1958 has not created any bar for filing of an appeal. So. this contention of Sri Sarma Baruah has no force inasmuch Section 105 itself says that it is a suit and a suit as pointed above is a proceeding under the Code of Civil Procedure.
16. This matter can be looked into from another angle. Section 106 of the Act of 1958 gives the jurisdiction to the court to grant relief by way of injunction. This grant of relief by way of injunction shall arise only at the conclusion of the suit. So, the court has the power to grant ad interim injunction only under Code of Civil Procedure i.e. under Section 94 as well as Order 39, Rules 1 and 2 read with Section 151 of the C.P.C. and if this power to grant ad interim injunction whether ex-parte or inter party is exercised under the Code of Civil Procedure, there is no denying of the fact that the provision of appeal as provided in the Code of Civil Procedure against an order shall also be available to the party affected. If this interpretation is not given it will mean giving wrongful advantage to the plaintiff who will go on enjoying the benefit of ad interim order of injunction without having a right of appeal. The court cannot place such an interpretation as it will be absurd and unreasonable on the face of it. It cannot be conceived that in the legislative Wisdom, the law givers prohibited an appeal against an ad interim order of injunction under the Act of 1958.
17. In this connection it may be pointed out that in the Act of 1958 itself nothing has been said regarding appeal against an adjudication made in a suit under Sections 105 and 106, docs it mean that an appeal against such an adjudication also shall not lie? That will be fool hardy interpretation of the law and the court is bound to avoid such a shocking interpretation.
18. In this connection also one may have a look at the Specific Relief Act. In Specific Relief Act under Section 6(3) it has been provided that no appeal shall lie from any order or decree passed in any suit instituted under this section (meaning thereby Section 6) nor shall any review or any such order or decree be allowed. There the legislature thought it appropriate to provide such a bar inasmuch as there is an alternative remedy by way of suit under Section 5 of the Specific Relief Act. It was in that view of the matter only that the specific bar was provided in a suit under Section 6 as the suit under Section 6 of the Specific Relief Act is considered to be a summary and requires speedy disposal to bring to an end of the controversy regarding possession and accordingly by Section 6(4) of the Specific Relief Act it was provided that a regular suit may be brought in. A suit under the Act of 1958 is not a summary proceeding.
19. That view of the matter, this objection of Sarma Baruah fails and I hold that an appeal against an ad interim order of injunction granted in a suit under Section 105(6) shall lie inasmuch as that power to grant ad interim injunction is exercised by virtue of the power under Section 94 read with Order 39, Rules 1 and 2. There no other power take recourse with which such an order can be passed and if that order is passed under the Code of Civil Procedure, the right of appeal as provided in the Code of Civil Procedure shall be available to the aggrieved party. There are no specific bar in the Act of 1958 and the Act of 1958 being silent it must be deemed that the Code of Civil Procedure shall apply to such a proceeding.
20. Having dealt with the two preliminary objections raised by Sri Sarma Baruah, now let us have a look at the merit of the matter only to decide the injunction matter leaving everything open to be decided in the main suit independently.
21. The first question raised by Sri Choudhury is that that impugned order is devoid of any reason and he submits that on that short
ground alone, this order is liable to be quashed and in support of it he relies on 1984 (1) Gauhati LR 133 : (AIR 1984 Gauhati 86) (FB) (Akmal AH v. State of Assam) wherein reliance is placed in paragraphs 4, 6 and 10 and they are quoted below:
Paragraph 4
'Now, let us turn to Order 39, Rules 1, 2, 2A and 4 to find out the nature and character of the process by which an ad interim injunction is issued. Order 39, Rule 1 states that on fulfilment of the 'conditions precedent the court may by order grant a temporary injunction', and what is more important grant the order 'until the disposal of the suit or until further orders'. Thus, ad interim order of temporary injunction is clearly visualised by Rule 1. Similarly Rule 2 provides that 'the court may by order grant such injunction'. Rule 2A also provides that the court 'may order the property of the person guilty of such disobedience ... to be attached and may also order such person to be detained ...' Similarly Rule 4 of Order 39 which deals with discharge, variation or cancellation of 'any order for an injunction' recognises the power of the court to discharge, vary or set aside 'any order of injunction'. Therefore, the power of discharge, vary or set aside can be invoked if there is in existence an 'order for an injunction'. If orders rendered under Order 39, Rules 1, 2, 2A are not orders of injunction the court cannot exercise power under Order 39, Rule 4, However, in our opinion, all orders rendered under Order 39, Rules 1, 2, 2A have been designated as 'order' and Rule 4 empowers the trial court to discharge, vary or set aside any of such orders. It does not stand to scrutiny that if the order is an ex-parte order or it is non-speaking order, it would not be revisable by the trial court under Order 39, Rule 4 of the Code. Rule 4 empowers the trial court to vary, alter or cancel any order of injunction, which undoubtedly includes order under Rules 1, 2, 2A of Order 39. As such, all orders which are dischargeable, variable or cancellable, are all appeallable under Order 43, Rule l(r), because an appeal lies against any order of injunction made under Order 39, Rules 1, 2 and 2A. However, there is a line of decisions in which it has been
held that an ex-parte or ad interim order of injunction under Order 39, Rules 1, 2, 2A is not appelabie as it is temporary or ex-parte or non-speaking. But in the same breath the High Courts recognise the right of petition against such orders under Order 39, Rule 4 of the Code. An ex-parte non-speaking temporary or ad interim order of injunction is revisable but it is not appellable, although the characteristics of the impugned order are absolutely the same both in Order 39, Rule 4 as well as in Order 43, Rule 1(r), seems to be irreconcil-lable. If it is an order of injunction, it is appelable as well. Similarly, if it is an order of injunction it is revisable under Order 39, Rule 4. Situated thus, we find it difficult to accept the line of reasoning and respectfully differ from the view. In our opinion, all ex-parte ad interim injunction are appelable under Order 43, Rule 1(r) as well as revisable under Order 39, Rule 4 of the Code.'
Paragraph 6:
'Any controversy as to whether reasons need be recorded while making an ex-parte order of ad interim injunction has been removed by the introduction of Rule 3, which provides that the Court after recording reasons for its satisfaction that the object of granting injunction would be defeated by delay etc. may pass an order of ex-parte ad interim injunction under Rules 1 and 2 of Order 39. It does not stand to scrutiny that an ad interim ex-parte order devoid of reasons, rendered in violation of the well-known principles that a judicial order must contain reasons, and in violation of the mandatory provision of Rule 3 can escape the jurisdiction of the appellate Court, but the same order can be revised by the very same court. Judicial order must be reasoned order. After the amendment, it must contain reason. The trial court must apply its mind to the materials placed before it, and, on being satisfied about the requirements of Order 39, Rules 1 and 2 make the order. Further, Rule 3 enjoin 'reasons to be recorded'. Under these circumstances when the trial court is required by law to state reasons but does not furnish them in its order, it violates the provisions of 'the Code'. By its own inaction or intentional violation of the mandatory
provisions of the Rules a court cannot take away the right of appeal of a person aggrieved by that order. As such, an ex-parte order of injunction, whether speaking or non-speaking, is appelabie.'
Paragraph 10:
'As alluded, even an ex-parte ad interim order rendered under Rule 1 or 2 of Order 39 is an order falling within the purview of Order 43, Rule l(r). Orders rendered under Rules 1 and 2 of Order 39 have been designated as orders appellable under Order 43, Rule 1(r) and, as such we are not to look at Section 2(9) or Section 2(14) of 'the Code'. Section 2 of 'the Code' clearly states that the definition should be understood in the manner stated in Section 2 'unless there is anything repugnant in the subject or context'. If there is any repugnancy in Order 43, Rule 1(r) read with Order 39, Rules 1 and 2, the meaning of the term 'order' should be understood as set out in those provisions and definition need not be restored. That apart, any order rendered under Order 39, Rule 1 or 2 is a formal expression of the decision arrived at by the civil court relating to granting of ad interim injunction. How could a court injunct a party without deciding whether to grant it or not. Form No. 8 of Appendix F to the Civil Procedure Code, 1908, clearly shows the manner in which the formal expression of the decision is required to be made. Further, to say that reasons must find place in an order to be regarded as a decision would land the litigants in great difficulty as, in limine disposed of many petitions by the courts with one word 'dismissed' would then not be 'orders'. Such a proposition cannot be accepted. It is a different matter that all orders, interim or final, should contain reasons. But to regard all non-speaking disposals as not even 'orders' of the appropriate authorities would create statements, as such disposals might then become non-appelable, or non-revisable, even under the relevant statutory provisions.'
22. That decision is squarely binding on me and I must decide this case on the basis of the law laid down by the Full Bench of this Court. In the instant case the learned Judge has simply stated as follows:
(1) That the plaintiffs have a strong prima facie case to go to trial.
(ii) That the plaintiffs prayer for ex-parte ad interim injunction needs to be considered without giving notice of the application to the defendants so as to protect the interest of the plaintiffs.
(iii) That if ad interim injunction is not granted, the plaintiffs would be put to serious loss on account of marketing of other products under a trade mark deceptively similar to that of the plaintiffs.
23. These are all statements without any reason whatsoever. There is nothing to show that even the learned Judge applied his mind to arrive at a prima facie findings. Merely making certain statements will not do. That is what was pointed out by the Full Bench of this Court was reported in 1984 (1) Gau LR 133. So, I find that the order is absolutely without any reason and on this ground itself this order requires to be quashed.
24. The next ground urged by Sri Choudhury is that after the amendment of the Code of Civil Procedure, it is bounden duty of the court to record reasons for its opinion that the object of granting injunction would be defeated by delay if notice is issued. That is the requirement of proviso to Order 39, Rule 3 of the C.P.C. Sri Choudhury submits that this matter was being heard on three days i.e. on 20-3-96, 22-3-96 and 25-3-96 and the premises of the defendant is at a distance of one mile from that of the court and it was absolutely possible for the Judge to issue the notices before granting injunction. There was already delay of 5 days and it is not understood why the plaintiffs prayer for ex-parte ad interim injunction needs to be considered without giving notice of the application. The object of granting injunction immediately is that the injunction shall be defeated by delay. It is submitted by the learned counsel that there was not even a whisper with regard to that in the impugned order. It is submitted that the proviso to Order 39, Rule 3 is mandatory and the court cannot violate it and in support of the submission, Mr. Choudhury relies on (1994) 4 SCC 225 : (1994 AIR SCW 2801) (Morgan
Stanley Mutual Fund v. Kartick Das) wherein in paragraph 46 it was pointed out by the Apex Court that before granting of ex pafte injunction without notice to the opposite side, the court should have examined the matter and must also looked to the grounds urged in the injunction application. In paragraph 14 of the application for injunction regarding the grant of injunction without notice it is stated inter alia as follows :
Paragraph 14:
'That the matter is so grave and eminent that if the notice prior to issue of ad interm injunction is issued to the opposite parties that would cause delay and will give ample opportunities to the opposite parties to create mischief by removing and/or evading the notice of the injunction and that will further cause irreparable loss and injury to the petitioners and will make this injunction petition infructuous and a futile exercise.'
25. That paragraph quoted above will show that nothing has been said in that paragraph that delay would defeat the injunction. The power to grant an injunction is tremendous one and it should not be exercised hastily or without solid reasons. An injunction, without previous notice to the party affected is a deviation from the ordinary course of justice and that should not be resorted to without strong and grave reasons. As a rule notice must be given, unless the matter is urgent the injunction would be defeated or irreparable mischief might ensured by the delay. While considering an injunction matter ex parte, the court should not act casually and in a cavalier fashion but pass an order only after adverting to all the facts and circumstances of the case. The provision for issuance of notice to the opposite party while granting temporary injunction is mandatory and the court has been given the power to dispense with the notice only when it comes to the findings that the grant of injunction would be defeated by delay. There may be such a case where the demolition of house will arise in the next day or if there is a imminant danger of the plaintiff for being dispossessed of the property. There may be numerous of such cases but the court
must apply its mind and find out whether the case deserves issue of an injunction without notice to the other party. The facts of this case will show that the Court proceeded in a casual and cavalier manner. It started to hear the matter on 20-3-96 and passed the order only on 25-3-96 and there was ample time and opportunity between these two dates to issue notice to the defendants who was a resident of Guwahati itself.
26. This matter came up for consideration in (1989) 2 Gauhati LR 372 : (AIR 1990 Gauhati 73) (Smt. Aparajita Mukherjee v. Anil Kumar Mukherjee where the Division Bench of this Court pointed out as follows :
'A reading of the proviso to Rule 3 suggests that only in the exceptional case when the Court finds very good reason it would be justified in' passing an ad-interim ex-parte order of a grave nature, and the Courts shall record reasons fonts opinion that the object of granting the injunction would be defeated by delay.'
27. Sri Sarma Baruah submits that at the initial stage the Court is not to record the detailed reasons but what the appellate Court must find out is that whether there was proper application of mind by the lower Court or not. If there is proper application of mind there is the end of the matter and the appellate Court should not scrutinise the matter in detail to throw out an ex-parte order of injunction on this ground. He submits in the instant case that the Court found that the case in hand needs consideration without giving notice of the application to the defendants. So as to protect the interest of the plaintiff, but the requirement of law is something else. The requirement of law is that the Court must come to a finding that the object of granting injunction would be defeated by delay. There is no such findings in the impugned order. That being the position, the impugned order is liable to be quashed on that ground also.
28. Next let us take up the other points urged by the parties regarding the justification to grant injunction in the case in hand. In order to appreciate the rival contentions let us have a look at the relevant provisions of the
Act of 1958. Section 2(d) defines what is 'deceptively similar'. That is quoted below:
'(d) 'deceptively similar'.-- A mark shall be deemed to be deceptively similar to another mark if it so nearly resembles that other mark as to be likely to deceive or cause confusion'.
The expression deceptively similar also appear in Sections 11(a), 16(i) and 39(i) of the Act.
29. Section 2(j) defines what is the 'mark'. That is quoted below:
'(j) 'mark' includes a device, brand, heading, label, ticket name, signature, word, letter or numeral or any combination thereof.'
30. Section 28 provides for the rights conferred by registration-- (J). That is quoted below:
'Rights conferred by registration (1) Subject to the other provisions of this Act, the registration of the mark in Part A or Part B of the register shall, if valid, give to the registered proprietor of the trade mark the exclusive righ to the use of the trade mark in relation to the goods in respect of which the trade mark is registered and to obtain relief in respect of infringement of the trade mark in the manner provided by this Act.
(2) The exclusive right to the use of a trade mark given under Sub-section (1) shall be subject to any conditions and limitations to which the registration is subject.
(3) Where two or more persons are registered proprietors of trade marks, which are identical with or nearly resemble each other, the exclusive right to the use of any of those trade marks shall not (except so far as their respective rights are subject to any conditions or limitations entered on the register) be deemed to have been acquired by any one of those persons as against any other of those persons merely by registration of the trade marks but each of these persons has otherwise the same rights as against other persons (not being registered users using by way of permitted use) as he would have if he were the sole registered proprietor.'
31. Section 29 provides for infringement of trade marks. That is quoted below:
'29. Infringement of trade marks-- (1) A
registered trademark is infringed by a person
who, not being the registered proprietor of the
trade mark or a registered user thereof using
by way of permitted use, uses in the course of
a trade mark, which is identical with, or
deceptively similar to, the trade mark, in
relation to any goods in respect of which the
trade mark is registered and in such manner as
to render the use of the mark likely to be taken
as being used as a trade mark.
(2) In an action for infringment of a trade mark registered in Part B of the register an injunction or other relief shall not be granted to the plaintiff if the defendant establishes to the satisfaction of the Court that the use of the mark of which the plaintiff complaints is not likely to deceive or cause confusion or to be taken as indicating a connection in the course of trade between the goods in respect of which trade mark is registered and some person having the right, either as registered proprietor or as registered user, to use the trade mark.'
32. Section 122 provides for Trade usage, etc. to be taken into consideration. That is quoted below:
'In any suit or other proceedings relating to a trade mark, the Tribunal shall admit evidence of the usage of the trade concerned and of any relevant trade mark or trade name or get up legitimately used by other persons.'
33. While deciding the question of deceptively similarly trade marks, the two marks must be considered in the background of the surrounding circumstances to determine whether, there is firstly any resemblance ' or identity between the two marks and then secondly whether the one mark is so similar that it causes either confusion or deception or there is a possibility of causing either confusion or deception having regard to the goods or the description of goods for which registration is there. One is not to find out whether there has been any actual confusion but whether there is any possibility either of confusion between the two or of deception.
This matter came up for consideration before the Apex Court in (1972) 1 SCC 618 : (AIR 1972 SC 1459) (Parle Poducts(P) Ltd. v. J. P. and Co., Mysore) wherein in paragraph 9, the law has been laid down by the Apex Court as follows:
'It is therefore clear that in order to come to the conclusion whether one mark is deceptively similar to another, the broad and essential features of the two are to be considered. They should not be placed side by side to find out if there are any differences in the design and if so, whether they are of such character as to prevent one design from being mistaken for the other. It would be enough if the impugned mark bears such an overall similarity to the registered mark as would be likely to mislead a person usually dealing with one to accept the other if offered to him. In this case we find that the packets are practically of the same size, the colour scheme of the two wrappers is almost the same; the design on both though not identical bears such a close resemblance that one can easily be mistaken for the other, The essential features of both are that there is a girl with one arm raised and carrying something in the other with a cow or cows near her and hens or chickens in the foreground. In the background there is a farm house with a fence. The word 'Gluco Biscuits' in one and 'Glucose Biscuits' on the other occupy a prominent place at the top with a good deal of similarity between the two writings. Anyone in our opinion who has a look at one of the packets today may easily mistake the other if shown on another day as being the same article which he had seen before. If one was not careful enough to note the peculiar features of the wrapper on the plaintiffs' if shown to him some time after he had seen the plaintiffs'. After all, an ordinary purchaser is not gifted with the powers of observation of a Sherlock Holmes. We have therefore no doubt that the defendants wrapper is deceptively similar to the plaintiffs' which was registered. We do not think it necessary to refer to the decisions referred to at the bar as in our view each case all have to be judged on its own features and it would be of no use to note on how many points there was similarity and in how many others there was absence of it.'
34. In that case the two products were, one 'Gluco Biscuits' and the other was 'Glucose Biscuits' and the Supreme Court found that the defendants products is deceptively similar to that of the plaintiffs which was registered. In the case in hand both the products are candle but one is 'Prince Fighter' of the defendants' and the other is 'Rocket'. Without going to the other niceties, the requirement is that the Court has to be satisfied in the sense that not merely there is a possibility of confusion but there is really effective danger of confusion if the two goods are allowed to be in the market, If the proof is incomplete and the matter is 'indubio', the application for injunction must be refused. Doubt in this connection means real doubt founded upon some reasonable and appropriate ground, the confusion must be in the mind of the public which will lead to confusion of the goods. In deciding this question, the following factors must be taken into consideration :--
(1) The nature of the markets.
(ii) The degree of resemblance between the marks-- Phonetic, Visual as well as similarly in idea.
(iii) The nature of the goods in respect of which they are used or likely to be used as trade marks.
(iv) The similar in nature, character and purpose of the goods of the rival traders.
(v) The class of purchaser who arc likely to buy the goods bearing the marks their label of attention and intelligence and the degree of care they are likely to exercise in purchasing the goods.
(vi) The motive of purchase of the goods or placing the orders for the goods.
(vii) Any other surroundings/circumstances.
35. In the present case in hand, there is no question of phonetic similarity inasmuch one is Prince Fighter and the other is Rocket. They bring into existence two different kinds of goods. When the ordinary purchaser will go to the market there is no question of
confusion inasmuch as they will ask for the brand of two different goods one for Prince Fighter and the other for Rocket.
36. In paragraph 16 of the plaint it is stated that the impugned get up and the device of the mark of the defendants is deceptively and confusingly similar to that of the plaintiffs and it is stated that it is calculated and bound to deceive purchasers and intending purchasers and induce them to believe that said candle is that of the plaintiffs or a franchise of the plaintiffs amounting passing off of the defendants candle as and for those of the plaintiffs.
37. The trade mark is undoubtedly a visual device but it is well established and law that the essential feature is not to be by ocular test alone. Since, word can form part or in the whole of a mark it is bound to exclusive consideration of the sound or prouncement of the word. The words used in the instant case arc absolutely different and there is no possibility of deception as the people will go to purchase two different goods by two different names. Actual physical, resemblance of the two marks is not the sole consideration if the goods of manufacturers have used two different names there is no question of infringement of the trade mark.
38. Shri Choudhury has produced before me a list of goods to show that in the field of candle business, a large numbers are in the field, namely, Skylab candle produced by one Prakash Chand Agarwal of Siliguri; Rohini Rocket candles produced by a owner from Guwahati, Range Rocket candles produced by Rock flame candle works, Guwahati; Airfighter candles produced by an industry of Siliguri Scud by Roushan trade and industries, Guwahati over and above the candles of the plaintiffs and the defendants and submits in view of the Section 122 of the Act of 1958 that aspect of the matter also should be taken into consideration by the Court at the time of granting injunction. Shri Choudhury in support of his contentions places reliance in the following decisions;
(i) Century Electronics Limited v. C.V.S. Enterprises Limited reported in Fleet Street
Reports, (1983) Page 1 in the High Court of Justice-Chancery Division wherein Shri Choudhury relies on the following portion of the judgment. That is quoted below :
'There are several points of some difficulty on the facts of this case. The first is this. As Megau L.J. pointed out in his well-known judgment in Jarman & Platt v. 1. Barget Ltd., (1977) FSR 260, the plaintiff in a passing-off action has to establish two things. The first is that the particular name or style on which he is relying has become distinctive of his goods. The second is that the use of that name by the defendant amounts to a misrepresentation in that it was likely to lead people to suppose that the defendant's goods are the plaintiff's goods, and confusion is the normal way in which the misrepresentation is shown. As Lord Justice Megau pointed out, the question of confusion does not arise unless the plaintiffs get over their first hurdle in establishing a monopoly in the name on which they are relying.
These plaintiffs announced their system at the end of December, 1980, but did not introduce it until July, 1981, which is only a year ago. The name they have chosen, 'CVS', is a group of initials which includes the initials 'VS' referring to 'Video system,' bin which could equally well be 'video services' and it is a fairly obvious choise of letters for such a business. The 'C' in their case happens to represent 'Century' and in the defendants' case happens to represent 'Computer'.
It seems to me that, although there is undoubtedly for the purposes of the doctrine enuciated in American Cyanamid v. Ethicon, (1975) AC 396 an arguable case, it is not by any means crystal clear that the plaintiffs are going to establish the reputation on which they must rely at the trial of the action. It is not all that easy to acquire a monopoly reputation in a group of letters.'
(ii) Next case relied on is of Delhi High Court reported in 1988 PTC 82 (Jain Rubber Industries v. Crown Pvt. Ltd.) wherein in paragraph.6 the law has been laid down as follows:
'In a view of the fact that the defendants
have been using the mark Crown for nearly 7 years prior to the filing of the present suit by the plaintiff and also as the said users appears to have been honest specially in view of the fact that the first name of the defendant company is Crown and considering the volume of business of the defendants and also in view of the balance of convenience, it would, in my opinion, not be equitable to restrain the defendants from using the word 'Crown' especially when the interest of the plaintiff can be adquately protected, by passing other appropriate orders.'
(iii) Next case is 987 Mary Jane Limited v. Jack Toohey & Co. Affleck & Brown Ltd. reported in (1961) RPC 389, Ch. D. wherein reliance is placed on the following portion of the judgment. That is quoted below :
'Plaintiffs were registered proprietors of the trade mark 'Mary Jane'. The defendants used the mark 'Merrie Jane'. In an action for infringement the plaintiffs moved for interlocutory injunction. The defendants alleged concurrent use of their mark and indicated a possible objection to the validity of the plaintiffs' registration. Evidence of concurrent use was also produced. There was no evidence of actual confusion. Interlocutory injunction was refused.
It was observed that although there was a distinct possibility of confusion this was not a case where confusion was inevitable. It was further observed that concurrent use of the defendant must be taken into account (together with the likelihood of confusion and the balance of convenience generally) in deciding whether to grant interlocutory relief.
Interlocutory relief will not be refused on the ground that the defendants is attacking the validity of the plaintiffs' registration of his mark, unless a strong prima facie case of invalidity is made out.'
(iv) Next case relied is Yost Typewriter Co. Ltd. v. Typewriter Exchange Co. reported in (1902) 19 RPC 422 Ch D wherein the following portion of the judgment is relied on by Sri Choudhury and that is quoted below:
'The plaintiffs in an action for passing off
to restrain the use of the name 'Yost Pads' moved for an interlocutory injunction. They alleged that the term 'Yost Pads' meant their goods and that the use by the defendants of the term 'Palmer Yost Pads' would lead to defendants' goods being passed off as the goods of the plaintiffs' goods. Evidence showed that the term 'Palmer Yost Pads had been used by the defendants since 1897. The plaintiffs denied knowledge of such use. In 1987 the plaintiffs had threatened the defendants with proceedings for infringement of a patent, but the proceedings were abandoned. There was also evidence to the effect that persons other than the plaintiffs had used the term 'Yost Pads'.
It was held that having regard to the use of the name by the defendants for the length of time, the means of knowledge of such use by the plaintiffs and their knowledge in fact, no case was made out for an interlocutory injunction.'
39. One may also have a look at the reported judgment in AIR 1963 SC 449 (Amritdhara Pharmacy v. Satya Deo Gupta). That was a case where two words were used in 'Lakshmandhara' and the other is 'Amritdhara' 'Lakshmandhara' was not a registered trade mark but 'Amritdhara' was registered trade mark and the Supreme Court pointed in paragraph 7 as follows:
'(7) It will be noticed that the words used in the sections and relevant for our purpose are 'likely to deceive or cause confusion'. The Act does not ley down any criteria for determining what is likely to deceive or cause confusion. Therefore, every case must depend on its own particular facts, and the value of authorities lies not so much in the actual decision as in the tests applied for determining what is likely to deceive or cause confusion.'
40. Thereafter in paragraph 11 of the judgment it has been pointed out as follows:--
'11. A large number of decisions relating to the use of composite words, such as Night Cap and Red Cap, Limit and Summit, Rito and Lito, Motrate and Filtrate, etc. were cited in the High Court. Some more have been
cited befoure us. Such decisions, examples of deceptive resemblance arising out of contrasted words have been summarised at pages 429 to 434 in Kerly on Trade Marks, 8th Edition. No liseful purpose will be served by referring to them all. As we have said earlier, each case must be decided on its own facts. What degree of resemblance is necessary 16 deceive or cause confusion must in the nature of things be incapable of definition a priori.'
41. One may also have a look at the reported decision in AIR 1979 Cal 133 (Banwaridas Pugalia v. Colgate Palmolive Co.) where the law has been laid down as follows:
(a) 'The principle is, as mentioned in the decision in the case of Amritdhara Pharmacy v. Satya Deo, AIR 1963 SC 449 that the Act does not lay down any criteria for determining what is likely to deceive or cause confusion. Therefore, every case must depend on particular facts and the value of the authorities lies not so much in the actual decision as in the test applied for determining what is likely to deceive or cause confusion. It is important to remember that the section does not require actual confusion but the likelihood of confusion to be the test in guiding this matter. In the case of Re: Pianotist Co.'s Application, (1906) 23 RFC 774, Parker, J. observed as follows:
'You must take the two words. You must judge them, both by their look and by their sound. You must consider the goods to which they are to be applied. You must consider the nature and kind of customer who would be likely to buy those goods. In fact, you must consider all the surrounding circumstances; and you must further consider what is likely to happen if each of those trade-marks is used in a normal way as a trade mark for the goods of the respective ownersof the marks'.'
(b) 'It is true that now-a-days cosmetics are used irrespective of class and creed and both by literate and illiterate and the fact that both the words contain four common letters ARMIS'. In my opinion, there was scope for comfusion, as was held by the learned Deputy Registrar. However, as is well-known
apparently both the words can be confusing having regard to the stage of development in pronounciation both among the literate and the illiterate. As a I have mentioned before, it is not actual confusion but the likelihood to cause confusion, that is the guiding factor. In view of the type of the goods, the people who use h and the alphabetical use of the words in the two trade marks in my opinion, if a view is taken or conclusion is made that FORMIS is likely to be confused as CHARMIS it cannot be said that such a view was unjustified.'
42. One may also look another case reported in AIR 1979 Cal 238 (Gazipur Chemical Works v. Deputy Registrar of Trade Marks), there two goods were 'CHAR GUDDI ASLI KEORA JAL' and 'CHAR GUDDI KEORA WATER'. In that judgment in paragraph 4, the law has been laid down as follows:
'In the case of K. Krishna Chettiar v. Ambal and Company, AIR 1970 SC 146(149) the Supreme Court emphasised that lack of evidence of actual confusion is not of much significance. The Supreme Court also emphasised that even in a case where there was no visual resemblance between the two marks there might be chance of confusion because occular comparison is not always the decisive test and Supreme Court emphasised that the resemblance between the two marks must be considered with reference to the ear as well as the eye. In that case the Supreme Court found that there was a close affinity between the sound 'Ambal' and 'Andal'. In the case of Parle Products v. J.P. & Co., Mysore, AIR 1972 SC 1359 (1362) the Supreme Court reiterated that in order to come to the conclusion whether one mark was deceptively similar to another the broad and essential features of the two were to be considered. The Supreme Court observed that these should not be placed side by side to find out if there was any different in the design and if so whether these were of such character as to prevent one design from being mistaken from the other. According to the Supreme Court it would be enough if the impugned mark bore such an overall similarity to the registered mark as would be likely to mislead
a person usually dealing with one to accept the other if offered to him. On the aspect of the distinctiveness in the case of P. N. Mayor v. Registrar of Trade Marks, AIR 1969 Cal 80 (83) Mr. Justice P.B. Mukharji, as the learned Judge then was, reiterated that the general requirement of the Trade Mark Law was that the mark must be distinctive in the sense that it should be adapted and distinguished and this distinctiveness was fundamental and primarily a matter of fact and such distinctiveness might be either in individual features or in general arrangement. A mark should therefore be considered as a whole on its total impression. It is the totality of the impression visually as well as phonetically that is the true test. If the totality of the impression was likely to cause deception or confusion then the identity is established. In the Division Bench judgment from the aforesaid decision reported in AIR 1972 Cal 261 though the appeal was allowed on some other point the view expressed by the learned trial Judge on this aspect of the matter was not dissented from. The Division Bench dealt with the aspect of the matter at page 268 in para 22 of the judgment. In the case of in the matter of an application by Ladislas Jellinek for the Registration of a Trade Mark (1945) 63 RTC 59 (70-72) in the decision the learned Judge reiterated that it was necessary to take into consideration the nature of the goods, the type of the customers and further more reiterated the following principles :--
'Now taking firstly into consideration the nature of the goods which are now in question, it seems to be the boots and shoes on the one hand differ in their nature at least as widely as the nature of semolina differs from that of mustard; the composition of the two commodities are wholly different and distinct from one another; secondly, it seems to me that the respective uses of the articles have to be taken into account in considering whether they should be regarded as goods of the same description. The mere fact that polish is applied in boots and shoes for the purpose of cleaning them and giving them a smart appearance seems to me to be quite irrelevant in this connection'.
This view was approved by the decision of the Board of Trade reported in 1974 RPC 583.'
43. On the other hand Sri Sarma Baruah relied on the following two cases:
(1) AIR 1995 Delhi 13 (Western Electronics Ltd. v. M/s. Rajesh and Co.). That was a case where the plaintiff had a trade mark in the name of 'WESTON' and the defendant also adopted the name of 'WESTON' in respect of certain electronic and electric goods and it was urged that it resulted in immense deception and confusion and as such leading to passing off the inferior quality of the goods of the defendants and on the background of that case, injunction was granted. That case does not help in the instant case inasmuch as in the instant case the name itself is different.
44. The word injury has not been defined in C.P.C. In legal parlance injury means any wrong or damage done to another, either to his person, rights, reputation or property (Black's Law Dictionary). In other words it means an act which harms hurls or damages, irrespective of the consideration how the harm, hurt or damage may arise. Injury as understood in association with injunction must be unlawful, infringemet or privation of a right. The injury caused in case of grant of injunction must be found to be prima facie illegal.
45. In passing of action injunction (interim) should be granted where plaintiffs trade is large and defendants trade has just commenced or is small or negligible. That is because balance of convenience tilts in favour of the plaintiff in such a case alongwith other requirements if in existence. An injunction should not be granted in a case under the Act of 1958 without coming to a prima facie finding, supported/substantiated by materials that the action of the defendant is wrongful, otherwise it will amount to kilting the trade/industry/business of the defendant even before the matter is finally heard and decided. That will be a death knell to the right of the defendant and shall mean condemning a person even without trial. There may be some exceptional cases where the action of the defendant may be dishonest and wrongful. Otherwise in all other cases the Court must adopt a path of caution and avoid the course of grant of injunction just on mere asking.
46. In the instant case I find that the exercise of discretion by the Court below is improper, unreasonable, capricious and not proper exercise of judicial discretion. In a suit for infringment of trade mark the best method is to compare the two trade marks and to come to a tentative finding as to the existence of general similarity which may in all probability deceive an unwary purchaser. In absence of deceptive similarly interim injunction is to be refused.
47. That being the petition, I hold that no case for temporary ad-interim injunction has been made out by the plaintiffs. Accordingly, this appeal is allowed and the order dated 25th March, 1996 passed by the District Judge, Kamrup in Title Suit No. 1/96 shall stand quashed and the prayer of injunction of the plaintiffs in that particular suit shall stand rejected. However, I leave the parties to bear their own costs.
48. Both the parties filed written arguments in this case and I have perused them.