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TMI Blog2005 (2) TMI 774X X X X Extracts X X X X X X X X Extracts X X X X ..... he products referred to above under the name 'Manikchand'. The trial court passed an ad-interim order of injunction as sought for by the plaintiff. The defendants appeared and filed their objections. They also filed an application, I.A. No.5/2004, under Order XXXIX Rule 4 of the C.P.C. seeking to get vacated the adinterim injunction granted by the trial court. Various documents were produced by the parties and the genuineness and validity of the documents produced, were mutually challenged. The trial court, by order dated 06.04.2004, held that the plaintiff has made out a prima facie case for an interim injunction and that the balance of convenience was in favour of the grant of an interim injunction as sought for by the plaintiff. Thus, the trial court confirmed the ad-interim order of injunction granted by it earlier and allowed I.A. No.2/2004 and dismissed I.A. No.5 of 2004. The defendants filed an appeal before the High Court of Madhya Pradesh under Order XLIII Rule 1(r) of the C.P.C. The High Court, on a consideration of the arguments raised before it, came to the conclusion that the order passed by the trial court could not be said to be incorrect, arbitrary or perverse, just ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iff as a rival trader would have been aware of that fact and the approach of the plaintiff to the court was highly belated and an order of injunction pending suit was neither warranted nor justified. The application for interim injunction was liable to be dismissed. The defendants were prepared to maintain correct accounts of their sales pending final disposal of the suit. The suit itself was a counter blast to the suit filed by the defendants on the original side of the High Court of Bombay, inter alia, seeking a permanent injunction against the present plaintiff from using the trade mark 'Malikchand' which was deceptively similar to the mark 'Manikchand' used by the defendants. The suit was filed without bona fides and the forum for action was chosen without bona fides. The suit itself lacked merit. 3. It is seen that at the relevant time, neither party had a registered trade mark for the respective marks claimed by them, though it appears that both of them have subsequently applied in that behalf and their applications are pending. 4. The trial court held that the plaintiff has prima facie established prior user of the mark 'Malikchand' by itself and its predecessors. It obser ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the suit within a period of six months from the date of receipt of a copy of its order. 5. Before proceeding to consider the appeal, we may observe that in this appeal, various documents, not produced before the trial court or before the lower appellate court, have been produced and elaborate arguments addressed based on those documents. The present proceeding is an appeal by special leave against an order passed by the High Court in an appeal under Order XLIII Rule 1(r) of the C.P.C. and normally the appeal here must be considered based on the material that was produced before the trial court or before the appellate court in terms of the permission granted by that court under Order XLI Rule 27 of the C.P.C. At this interlocutory stage it would not be proper for this Court to enter into an adjudication based on the various documents produced before this Court which are not of undoubted authenticity and the genuineness, acceptability and value of which are mutually questioned. Generally, the arguments based on genuineness, admissibility and so on, are ones to be raised at the trial, though no doubt they could be raised at the interlocutory stage in respect of a prima facie case or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s and interference by this Court would not be justified. Learned counsel for the appellants, on the other hand, contended that the order of interim injunction was granted without proper application of mind to the relevant aspects arising for consideration and the order could be termed perverse so as to enable this Court to correct the same in exercise of its jurisdiction under Article 136 of the Constitution of India. Counsel further submitted that the irreparable injury that would be caused to the defendants has been ignored by the courts below clearly justifying interference by this Court. We think that there cannot be any absolute rule regarding interference or non-interference by this Court with an order on an application for interim injunction. But certainly these arguments addressed on behalf of the rival contenders have to be kept in mind while this Court considers whether this is a fit case for interference in an appeal of this nature. Suffice it to indicate that while considering all the relevant aspects this would also be an aspect to be borne in mind by this Court. At the same time, this Court must guard against finally pronouncing on any aspect, lest it prejudices a fai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... income tax raid sometime in the year 2001 and prima facie a document is produced in support of acknowledgement of such seizure. The other assignments are challenged essentially on the ground of discrepancy in the alleged sale of stamp paper by a licensed stamp vendor, the date of execution and the question whether the alleged stamp vendor had a valid licence on the relevant date, to sell those stamp papers. These aspects, we also feel, have to be decided at the trial and it will be pre-mature to take a view on the contentions thus raised by the defendants. The said approach adopted by the trial court and the first appellate court, in the circumstances, cannot be said to be perverse or so unreasonable as to warrant correction by this Court, considering that this Court is sitting in appeal by special leave, at an interlocutory stage. Suffice it to say, prima facie on the materials produced, it could not be said that the trial court and the High Court committed such an error in prima facie accepting the case of prior user of the mark "Malikchand" set up in the plaint so as to warrant interference by this Court. 10. As has been noticed already, the prima facie establishment of prior u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot been set out and in any event, there was no adequate plea of delay and latches based on which the plaintiff could be denied relief. It was submitted that the defendants may be having a large volume of trade, but that does not mean that the big fish should be allowed to swallow the small fish in circumstances like the present. While considering the balance of convenience, the question of delay and latches might be a relevant aspect to be considered, but once that aspect has been adverted to and an interim injunction granted by the trial court and confirmed by the High Court in appeal, this Court may not be justified in refusing the grant of interim injunction on the ground of delay and latches. In any event, this was a case where both sides were trying to assert their respective rights and the litigations were the result of such attempts. The High Court had adverted to this aspect while confirming the order of injunction. We see no reason to interfere on this ground at this prima facie stage. 11. Prima facie, it appears to us that the mark "Malikchand" was being used, though not much publicized by the original user, leading to the alleged acquisition of the right to use the mark ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssed for by counsel for the defendants. It appears to us that it may not be proper for this Court, in an appeal of this nature and on the facts of this case to interfere with the discretion exercised by the trial court and the appellate court in that behalf on this ground. The argument in that behalf raised on behalf of the defendants is left open for decision in the suit itself. Learned counsel for the defendants then contended that this was not a case where the balance of convenience was in favour of the grant of an interim injunction and that this was a case where the defendants could be called upon to maintain separate accounts in respect of their transactions of sale regarding the products in question so as to protect the plaintiff, if ultimately the plaintiff succeeds. Counsel contended that the defendants had offered to maintain proper accounts in the trial court and in the High Court and those courts should have accepted the said submission and refused the injunction. Learned counsel for the plaintiff, on the other hand, submitted that the interim injunction granted has been in force from 16.03.2004 and the defendants had, pursuant to the injunction, changed the format of t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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