# Iftikhar Alam v. M/s. M.M.I. Tobacco Pvt. Ltd., Kolkata & Anr

- **Citation:** (2023) 10 ILRA 375
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-08-07
- **Case number:** First Appeal From Order No. 77 of 2023
- **Bench:** Kshitij Shailendra
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/iftikhar-alam-v-m-s-m-m-i-tobacco-pvt-ltd-kolkata-anr-49336
- **Pages:** 9

## Headnote

Sri
Mohammad
Waseem,
Sri
Arvind
Srivastava, Sri Brijesh Chandra Naik, Sri
Anil Kumar Pandey

Civil Law - Code of Civil Procedure,1908Order 41 Rule 23,23-A, 24, 25 & 27Impugned order- allowed Application 6-C filed
by
the
plaintiff-respondents
-granting
a
temporary injunction pending suit restraining the
defendant-appellant from producing, selling or
conducting any business in relation to tooth powder,
namely, Musa Ka Gul-which was alleged as a
registered trademark of the plaintiff-respondentsprovisions of Order 41 Rule 27 CPC permitting the
parties to lead additional evidence would also apply to
the appeals from orders- provisions of remand to be
made by the appellate court, as contained under
Order 41 Rules 23, 23-A, 24 and 25 would also apply
to appeals from orders-Trial Court avoid his duty to
analyse the necessary ingredients pertaining to grant
or refusal of injunction-impugned order set aside.

Matter remanded. (E-9)

Cases cited:

## Text

10 All. Iftikhar Alam Vs. M/s M.M.I. Tobacco Pvt. Ltd., Kolkata & Anr.
375

As prayed by learned counsel for the
parties list on 2nd May, 2023 at 3.30 p.m.
for framing of issues.
----------
(2023) 10 ILRA 375
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 07.08.2023

BEFORE

THE HON'BLE KSHITIJ SHAILENDRA, J.

First Appeal From Order No. 77 of 2023

Iftikhar Alam ...Appellant
Versus
M/s. M.M.I. Tobacco Pvt. Ltd., Kolkata &
Anr. ...Respondents

Counsel for the Appellant:
Sri Santosh Kumar Tripathi, Sri Shashi
Nandan (Sr. Advocate)

Counsel for the Respondents:
Sri
Mohammad
Waseem,
Sri
Arvind
Srivastava, Sri Brijesh Chandra Naik, Sri
Anil Kumar Pandey

Civil Law - Code of Civil Procedure,1908Order 41 Rule 23,23-A, 24, 25 & 27Impugned order- allowed Application 6-C filed
by
the
plaintiff-respondents
-granting
a
temporary injunction pending suit restraining the
defendant-appellant from producing, selling or
conducting any business in relation to tooth powder,
namely, Musa Ka Gul-which was alleged as a
registered trademark of the plaintiff-respondentsprovisions of Order 41 Rule 27 CPC permitting the
parties to lead additional evidence would also apply to
the appeals from orders- provisions of remand to be
made by the appellate court, as contained under
Order 41 Rules 23, 23-A, 24 and 25 would also apply
to appeals from orders-Trial Court avoid his duty to
analyse the necessary ingredients pertaining to grant
or refusal of injunction-impugned order set aside.

Matter remanded. (E-9)

Cases cited:
1. Goenka Institute of Education & Research Vs
Anjani Kumar Goenka & anr.: AIR 2009 Delhi 139;

2. Khoday India Ltd. Vs Scotch Whisky Association &
ors: AIR 2008 SC 2737;

3. M/s. Hulas Rai Baij Nath Vs Firm K.B. Bass & Co.:
AIR 1968 SC 111 (V 55 C 30);

4. Sheikh Khalikuzzama & ors.Vs Sheik Akhtaruzzama
& ors.: 2004 (2) AWC 1636 All;

5. Manager Prasad Verma Vs St. of U.P. & ors., WritB No.511 of 2023- decided on 02.03.2023

6. Neon Laboratories Ltd. Vs Medical Technologies
Ltd. & ors.: (2016) 2 SCC 672;

7. S. Syed Mohideen Vs P. Sulochana Bai: (2016) 2
SCC 683.

8. Rajendra Prasad Gupta Vs Prakash Chandra Mishra
& ors.: (2011) 2 SCC 705;

9. Aman Lohia Vs Kiran Lohia: (2021) 5 SCC 489;

10. Sadar Laboratories Pvt. Ltd. Vs Hamdard National
Foundation (India) & anr., in FAO (OS) (Comm)
67/2022 and CM No.13491/2022, decided on
21.12.2022;

11. Renaissance Hotel Holdings Inc. Vs B. Vijaya Sai
& ors.(2022)5SCC 1;

12. Ramdev Food Products (P) Ltd. Vs Arvindbhai
Rambhai Patel & ors.: (2006) 8 SCC 726;

13. M/s Pandit Kulfi and Cafe Vs M/s. Pandit Kulfi:
2015 AIR (Rajasthan) 218;

14. Mohit Kumar Varshney anr. Vs Girraj Food
Products, Hathras: 2009 (5) ADJ 455, equivalent to
2009 (4)ALF 394;

15. Midas Hygiene Industries P. Ltd. vs Sudhir Bhatia
& ors.: (2004) 3 SCC 90;

16. Parle Products (P) Ltd. Vs J.P. and Co.:
(1972) 1 SCC 618.

(Delivered by Hon'ble Kshitij Shailendra,
J.)
376 INDIAN LAW REPORTS ALLAHABAD SERIES

1. The instant appeal has been filed
challenging the order dated 10.10.2022
whereby the District Judge, Varanasi has
allowed Application 6-C filed by the
plaintiff-respondents in Original Suit No.20
of 2022 granting a temporary injunction
pending suit restraining the defendantappellant from producing, selling or
conducting any business in relation to tooth
powder, namely, Musa Ka Gul which was
alleged as a registered trademark of the
plaintiff

2. The aforesaid suit was filed
by M/s M.M.I. Tobacco Pvt. Ltd
through its Director Mohd. Nazish as
plaintiff no.1 and Mohd. Nazish in
his personal capacity, as plaintiff
no.2, against the defendant-appellant
Iftikar Alam under Sections 29, 134,
135 of the Trademarks Act, 1999 and
Section 62 of the Copyrights Act,
1956 with the averments that the
plaintiff no.1 is a private limited
company well established in India
and is engaged in the production and
sale of tooth power, namely, Musa
Ka Gul by wholesale and retail
activity. It was further alleged that
the plaintiff no.1 company and its
predecessors had been selling the
said product in accordance with law
since 04.03.1974 and that copyright
office at New Delhi had issued
registered
No.A0131294/2010
on
04.10.2019, Lebel and Registered
No.140586/2021 dated 21.11.2021,
Musa
Gul
and
Registered
No.140586/2021 dated
21.11.2021
and GST No. 19AAHCM7286L1ZN.
It was further alleged that the
plaintiff
no.1
company
was
registered on 16.12.2011 and its
trademark
was
registered
on
15.01.1994
as
Registration
No.616611, Certificate No.733679,
which is valid upto 15.01.2024. In
paragraph no.14 of the plaint, it was
pleaded as follows:-

"यह शक मो० खाशलक ने मूसा एण्ड सन्स का
अपना
सारा
अशधकार
जररए
एसाइनमेन्ट
डीड
19.07.2012 मेससस एम०एम० इन्डस्रीज को अन्िररि
कर शदया शजसके पाटसनर मो० दाशनि व मो० नाशजि मो०
खाशलक थे िथा मेससस एम०एम० इन्डस्रीज जररए पाटसनर
मो० खाशलक व मो० दाशनि व मो० नाशजि ने रेडमाकस
नंबर-616611 का अपना सारा अशधकार जररए
एसाइनमेन्ट
डीड
शदनांक
28.03.2019
मेससस
एम०एम०आई० टुबैको प्रा०शल० वादी संख्या-1 कम्पनी को
अन्िररि कर शदया इस िरह रेडमाकस नंबर-616611 मूसा
का िुल (नाम) का प्रयोि करने का वादी कम्पनी को पूणस
अशधकार प्राप्त है। प्रशिवादी को (असली मूसा का िुल) नाम
व कम्पनी का नाम (मो० मूसा एण्ड सन) शडशबया पर शलखने
का कोई अशधकार नहीं है। प्रशिवादी का न िो कम्पनी एक्ट
में रशजस्रेिन है िथा न िो रेडमाकस का रशजस्रेिन है िथा न
िो कापी राईट एक्ट में रशजस्रेिन है िथा न िो
एम०एम०आई० एण्ड कं० द्वारा लाइसेन्स प्रशिवादी को शदया
िया है।"

3. The cause of action for filing
the suit was alleged to have accrued
on 16.08.2022 when the plaintiffs
came to know that the defendant was
selling the same product by the same
name
and,
therefore,
suit
was
instituted claiming a decree on the
same lines on which the temporary
injunction was claimed as aforesaid.

4. Along with the plaint, the
plaintiff-respondents
also
claimed
temporary injunction and affidavits
were
exchanged
in
the
injunction
matter. The defendant-appellant filed
objections
against
the
injunction
application
and
apart
from
other
documents,
also
filed
following
documents along with the list 42-C.
10 All. Iftikhar Alam Vs. M/s M.M.I. Tobacco Pvt. Ltd., Kolkata & Anr.
377

5. After exchange of affidavits, the
trial court has granted temporary injunction
to the aforesaid effect.

6. I have heard Shri Shashi Nandan,
learned Senior Counsel, assisted by Shri
Santosh Kumar Tripathi, learned counsel
for the defendant appellant and Shri Arvind
Srivastava along with Shri Anil Kumar
Pandey, learned counsel for the plaintiffsrespondent Nos. 1 and 2 and perused the
record.

7. The submission of Sri Shashi
Nandan, learned Senior Counsel for the
appellant, is that the basis of the claim of
the
plaintiff-respondents
was
the
assignment deed dated 19.07.2012, as
pleaded in paragraph no.14 of the plaint.
He has referred to an application (paper
No.47-C/10) dated 16.03.2016 whereby
one of the partners had requested the
Deputy
Registrar
of
Trademarks
to
withdraw and cancel the trademarks-24
application filed by the plaintiffs along with
deed of assignment dated 19.07.2012 on
the ground that the plaintiffs were not
interested to take the proprietary rights of
the said trademark 'Musa Ka Gul' with bust
photograph of late Mohd. Musa under
registered trademark No.616611 in Class-3.
There
are
other
applications
dated
16.03.2016 (paper nos.47-C/6 and 47-C/8)
addressed to the Deputy Registrar of
Trademarks in the nature of withdrawal
applications whereby the rights flowing
from deed of assignment dated 19.07.2012
were abandoned by the partners of plaintiffrespondents.

8. By placing reliance upon the
aforesaid documents, it has been argued
that since applications dated 16.03.2016
(paper Nos.47-C/6, 47-C/8 and 47-C/10)
were
in
the
nature
of
withdrawal
applications, the cause of action to file and
maintain the suit or even the injunction
application stood vanished in view of the
pleadings contained in paragraph no.14 of
the plaint. It has also been argued that the
trial court, while granting injunction has
not considered the aforesaid documents and
their effect and, hence, the order impugned
is unsustainable.

9. Sri Shashi Nandan has further
argued that though it is true that there was a
registered
trademark
of
the
plaintiff
respondents, merely because of this,
injunction could not be granted, as the
defendant was the prior user of the
product. In this regard, he has referred to
Section 34 of the Trademarks Act, 1999,
which reads as follows:-

"34. Saving for vested rights.-
Nothing in this Act shall entitle the
proprietor or a registered user of registered
trade mark to interfere with or restrain the
use by any person of a trade mark identical
with or nearly resembling it in relation to
goods or services in relation to which that
378 INDIAN LAW REPORTS ALLAHABAD SERIES
person or a predecessor in title of his has
continuously used that trade mark from a
date prior-

(a) to the use of the firstmentioned trade mark in relation to those
goods or services be the proprietor or a
predecessor in title of his; or

(b) to the date of registration of
the first-mentioned trade mark in respect of
those goods or services in the name of the
proprietor of a predecessor in title of his;
whichever is the earlier, and the Registrar
shall not refuse (on such use being proved),
to register the second mentioned trade
mark by reason only of the registration of
the first mentioned trade mark."

10. The submission is that prior user
becomes a vested right in the said user
and, as per the language used under Section
34, even the proprietor of a registered trade
mark has no right to interfere with or
restrain the use of the prior user. He has
further argued that insofar as the three
ingredients
necessary
for
grant
of
temporary injunction, i.e. prima facie case,
balance of convenience and irreparable loss
are concerned, the finding on prima facie
case is based upon only certificate of
registered trade mark and no other aspect
has been considered by the court below. As
regards remaining two ingredients, the
submission is that even findings qua them
are based upon the mere fact that there was
a registered trade mark with the plaintiffrespondents.

11. Sri Shashi Nandan, learned Senior
Counsel, in support of his submissions, has
placed
reliance
upon
the
following
authorities:-

"(i)
Goenka
Institute
of
Education
&
Research Vs. Anjani
Kumar Goenka & Anr.: AIR 2009 Delhi
139;

(ii) Khoday India Ltd. Vs.
Scotch Whisky Association & Ors: AIR
2008 SC 2737;

(iii) M/s. Hulas Rai Baij Nath
Vs. Firm K.B. Bass and Co.: AIR 1968
SC 111 (V 55 C 30);

(iv) Sheikh Khalikuzzama and
others Vs. Sheik Akhtaruzzama and
others: 2004 (2) AWC 1636 All;

(v) Manager Prasad Verma Vs.
State of U.P. and others, decided on
02.03.2023 in Writ-B No.511 of 2023;

(vi) Neon Laboratories Limited
Vs. Medical Technologies Limited and
others: (2016) 2 SCC 672;

(vii) S. Syed Mohideen Vs. P.
Sulochana Bai: (2016) 2 SCC 683."

12. By referring to the aforesaid
authorities, it has been argued that the court
below has failed to analyse the aspects of
prior user which would prevail over
registration of trade mark as per the
provisions of the Act of 1999; the delay in
approaching the court of law even by a
registered proprietor of a registered trade
mark would defeat the claim of injunction;
merely because no order was passed by the
trade mark authorities on the withdrawal
applications dated 16.03.2016, the same
would not ipso facto nullify the effect of
moving such applications as the partners
had relinquished their rights on the basis of
assignment deed dated 19.07.2012.

13. Per contra, Sri Arvind Srivastava,
learned
counsel
for
the
plaintiffrespondents has vehemently argued that the
photo of the plaintiffs' product shows photo
of "Musa" and colour with address "MMI
Tobacco Ltd." and the defendant uses same
photo with same colour combination using
the name of Musa and his photo and
10 All. Iftikhar Alam Vs. M/s M.M.I. Tobacco Pvt. Ltd., Kolkata & Anr.
379
address MMI Tobacco company; that the
plaintiffs are using this trademark and
copyright since 04.03.1974 through their
predecessor which is registered with them
whereas the defendant is riding on the good
will of the plaintiffs; that the defendant did
not plead any prior user or press any such
pleas or the plea of rectification or
abandonment and he does not belong to the
family of Musa. It has further been argued
that the reliance placed upon para no.8 of
the objections against the injunction
application to show prior user is also
misconceived as para no.8 of the objections
does not even use the words that the
defendant was using the trademark 616611
prior to the plaintiffs nor was any such plea
pressed or evidence led. He further submits
that the para no.8 of the objection mentions
the Trademark No.354633 No.616611 and
this trademark was of the firm Mohd. Musa
& Sons run by Subedar and Khaliq and
Islam. The firm sold this trademark to the
firm Musa and Company on 01.11.1991
which again sold it to MMI Industries
having
Khaliq,
Danish,
Nazish
and
daughter in law as partners. He further
submits that the firm Mohd. Musa and sons
was dissolved on 01.09.1997.

14. Sri Srivastava has also argued that
at no point of time the applications dated
16.03.2016
were
pressed
before
the
authorities and, therefore, merely because
the same form part of the record of the trial
court, it has rightly ignored the same as
there was no order passed on the said
withdrawal applications. However, Sri
Srivastava has not disputed that the said
applications
dated
16.3.2016
(paper
Nos.47-C/6, 47-C/8 and 47-C/10) were
filed before the Trademarks Authorities.

15. Sri Srivastava has also argued
that the defendant does not have any
Trademark registered with him in the
name of "Musa Ka Gul" with the human
bust with photograph of Moosa or
Subedar, nor does he have the copyright
of the design of the product which is
being sold by the plaintiffs. He submits
that Smt. Shahena Mukhtar is the wife of
Shri Mukhtar Alam. When Shri Mukhtar
Alam who is the partner of the firm M/s.
Musa & Company started damaging the
interest of the firm by entering into
separate agreements with the trademark
of the firm for selling the products of the
firm, proceedings under Section 9 of the
Arbitration Act were initiated by the
other partners of the firm against Shri
Mukhtar Alam. A detailed order was
passed on 03.10.2018 by the High Court,
Calcutta injuncting and restraining Shri
Mukhtar
Alam
and
his
agents
or
assignees or nominees from running a
parallel business of manufacturing or
dealing with or selling "Musa Ka Gul" or
"Tobaco Gul", by the name of M/S M. S.
Industries or in any manner whatsoever,
until the publication of the arbitral award.
The High Court, Calcutta also held that
Shri Mukhtar Alam was misappropriating
the funds of the firm.

16. Sri Srivastava has further argued
that the main defence set up by the
respondent is that M/s. M.S. Industries is
the business of his wife Shaheena Muktar
and at the strength of the said licence
agreement dated April 01, 2017 entered
into between the petitioner no. 3 firm and
Shaheena Muktar, the latter is carrying on
the business of manufacture and sell of
Tobacco Gul under the brand name of
'Musa Ka Gul Super'.

17. In support of his submission, Sri
Srivastava has placed reliance upon the
following authorities:-
380 INDIAN LAW REPORTS ALLAHABAD SERIES

"(i) Rajendra Prasad Gupta Vs.
Prakash Chandra Mishra & Others:
(2011) 2 SCC 705;

(ii) Aman Lohia Vs. Kiran
Lohia: (2021) 5 SCC 489;

(iii) Sadar Laboratories Pvt.
Ltd. Vs. Hamdard National Foundation
(India) & Anr., in FAO (OS) (Comm)
67/2022 and CM No.13491/2022, decided
on 21.12.2022;

(iv) Renaissance Hotel Holdings
Inc. Vs. B. Vijaya Sai and Others: (2022)
5 SCC 1;

(v) Ramdev Food Products (P)
Ltd. Vs. Arvindbhai Rambhai Patel and
others: (2006) 8 SCC 726;

(vi) M/s Pandit Kulfi and Cafe
Vs. M/s. Pandit Kulfi: 2015 AIR
(Rajasthan) 218;

(vii) Mohit Kumar Varshney
and Anr. Vs. Girraj Food Products,
Hathras: 2009 (5) ADJ 455, equivalent to
2009 (4) ALF 394;

(viii) Midas Hygiene Industries
P. Ltd. vs Sudhir Bhatia And Ors.:
(2004) 3 SCC 90;

(ix) Parle Products (P) Ltd. Vs.
J.P. and Co.: (1972) 1 SCC 618.

18. Placing reliance upon the
aforesaid authorities, it has been argued
that there is no express bar in filing the
application for withdrawal of application
and
mere
filing
of
the
withdrawal
application would not ipso facto result in
withdrawal of the proceedings unless
specific order is passed thereon.

19. It has further been argued that
essentials of a passing off action with those
in respect of an action complaining of an
infringement of a registered trade mark,
cannot be equated and though an action for
passing off is a common law remedy being
an action for deceit, that is, a passing off by
a person of his own goods as those of
another; the action for infringement is a
statutory right conferred on the registered
proprietor of a registered trade mark for the
vindication of the exclusive rights to the
use of the trade mark in relation to those
goods. The use by the defendant of the
trade mark of the plaintiff is a sine qua non
in the case of an action for infringement.

20. It has further been argued by Sri
Srivastava that in an infringement action,
an injunction would be issued as soon as it
is proved that the defendant is improperly
using the plaintiff's mark and that no case
of actual deception or any actual damage
needs to be proved in such cases.

21. Various other submissions have
been made by Sri Arvind Srivastava and
numerous documents annexed to the
counter affidavit have been referred to
during
the
course
of
arguments
to
demonstrate that it is the registered
trademark of plaintiff-respondents alone
which
the
defendant-appellant
is
maliciously
and
illegally
using
and,
therefore, he has been rightly injuncted
under the order impugned.

22. Meeting the arguments of Sri
Shashi
Nandan,
based
upon
the
interpretation
of
Section
34
of
the
Trademarks Act, 1999, Sri Srivastava has
placed reliance upon Section 31 of the Act
which reads as follows:-

"31. Registration to be prima
facie evidence of validity

(1) In all legal proceedings
relating to a trade mark registered under
this Act (including applications under
section 57), the original registration of the
trade
mark
and
of
all
subsequent
assignments and transmissions of the trade
10 All. Iftikhar Alam Vs. M/s M.M.I. Tobacco Pvt. Ltd., Kolkata & Anr.
381
mark shall be prima facie evidence of the
validity thereof;

(2) In all legal proceedings as
aforesaid a registered trade mark shall not
be held to be invalid on the ground that it
was not a registrable trade mark under
section
9
except
upon
evidence
of
distinctiveness and that such evidence was
not submitted to the Registrar before
registration, if it is proved that the trade
mark had been so used by the registered
proprietor or his predecessor in title as to
have become distinctive at the date of
registration."

23. It has, therefore, been argued that
registration of trademark is a prima
facie evidence of its validity in all legal
proceedings and, hence, once there is no
dispute that it is the plaintiffs' registered
trademark, the defendant appellant has no
case.

24. Having heard the learned counsel
for the parties, I notice following things on
the record:-

(i) The trial court, while passing
the order impugned dated 10.10.2022, has
based its decision only and only on the
registered trademark which is in favour of
the plaintiff-respondents.

(ii) There is no discussion in the
order impugned regarding prior user of the
product.

(iii) There is no discussion
regarding paper Nos.47-C/6, 47-C/8 and
47-C/10
and
many
other
documents
contained in the list 42-C, although I find
that only few of the documents have been
referred to at internal page 3 of the order.

(iv) The documents annexed to
the counter and rejoinder affidavits do not
appear to either form part of the record of
the court below or, in case they form part of
the record, there is absolutely no discussion
in the order impugned as regards the said
documents.

(v) There is also a dispute
regarding number of registered trademark
allotted to the parties or even the
application
moved
either
seeking
registration or cancellation of the same.

(vi) The order impugned contains
a very cryptic analysis of the material
placed before the trial court and even the
three basic ingredients necessary for grant
of temporary injunction, i.e. prima facie
case,
balance
of
convenience
and
irreparable loss have not been elaborately
discussed.

(vii) There is no discussion of the
provisions of Sections 31 and 34 of the
Trademarks Act, 1999, which, on the one
hand, attach sanctity to a registered
trademark but, at the same time, restrain
proprietor of such a trademark from
injuncting the prior user of the product
from making its use.

25. I may emphasize here that an
appeal against an order granting or refusing
injunction is provided under Order 43 Rule
1 (r) of the Code of Civil Procedure, 1908
that reads as follows:-

"1. Appeal from orders. - An
appeal shall lie from the following orders
under the provisions of section 104,
namely:-

(a) to (q) ..........

(r) an order under rule 1, rule 2
[rule 2A], rule 4 or rule 10 of Order
XXXIX"

26. In so far as rules applicable for
appeals from order are concerned, reference
to Order 43 Rule 2, CPC can be made
which reads as under:-
382 INDIAN LAW REPORTS ALLAHABAD SERIES

"2. Procedure.- The rules of
Order XLI shall apply, so far as may be, to
appeals from orders."

27. In view of the above, Rules of
Order 41 (appeals from original decrees)
have been made applicable to the appeals
from orders also. Therefore, the Court finds
that provisions of Order 41 Rule 27 CPC
permitting the parties to lead additional
evidence would also apply to the appeals
from orders. Further, the provisions of
remand to be made by the appellate court,
as contained under Order 41 Rules 23, 23A, 24 and 25 would also, insofar as they
may be, apply to appeals from orders.

28. Though this Court seldom
appreciates the practice of remanding a
matter to the court below, particularly,
when it is hearing either an appeal from a
decree or from an order, in the present case,
the Court feels that since there is a serious
dispute of trademark, its registration, its
number, its withdrawal, if any, prior user,
family history etc. etc, and there are
certain documents which, apparently, do
not form part of the record of the trial
court but may be relevant for deciding the
controversy
as
regards
temporary
injunction pending suit, while exercising
the powers of remand, as discussed
herein above, this Court feels it proper to
permit the parties to lead additional
evidence in support of their respective
cases and defence. This view is being
taken for the reason that the trial court's
order does not deal with the issue
involved in the case in detail and certain
documents did not even form part of the
record of the court below. Though it is
true that at the time of entertaining and
deciding an application for temporary
injunction, mini trial is not justified, this
proposition would not clothe a trial judge
hearing an injunction application to avoid
his
duty to analyse
the necessary
ingredients pertaining to grant or refusal
of injunction, particularly, in the present
case arising out of Trademarks Act, 1999,
after considering the various provisions
of
the
Act
and
nature
of
these
proceedings being different from a
regular civil suit.

29. During the course of arguments,
it was submitted by the learned counsel
for the respondents that the impugned
injunction
order
was
passed
on
10.10.2022 and this Court did not grant
any interim relief to the defendantappellant in the instant appeal which was
filed in January, 2023. It was further
contended that almost 9 months have
passed since when the interim injunction
order was made operative and, therefore,
in case the Court finds it proper to
remand the case to the trial court for fresh
consideration, the defendant appellant be
restrained from using the product as
injuncted by the trial court during the
period in which the trial court would
reconsider and re-decide the injunction
application.

30. This Court is not in a position to
accept such submission for the simple
reason that once the appeal is being
allowed setting aside the injunction order,
a contrary order granting injunction on
the
same
lines
cannot
be
passed,
irrespective of the fact that the order
impugned was passed 9 months ago. It is
well settled that long pendency of any
case would not hamper the rights of the
parties who were litigating in all bona fides
and, in the present case, I find from perusal
of the order sheet that the matter was being
diligently prosecuted by both the parties
10 All. The State of U.P. Vs. Rai Singh & Ors.
383
and huge and bulky affidavits were
exchanged in between them. Therefore,
prayer to grant injunction, as requested by
Sri Srivastava, is hereby refused.

31. In view of the above discussion, the
appeal is allowed. The order impugned dated
10.10.2022 passed by the District Judge,
Varanasi is hereby set aside.

32. The matter is remanded to the trial
court for fresh consideration of the injunction
application in the light of factors enumerated in
paragraph no.24 of this judgment.

33. The parties are permitted to file
additional documents, if any, before the court
below within three weeks from the date of this
decision.

34. The trial court shall decide the
injunction application afresh after recording
findings on all the above noted aspects after
providing full opportunity of hearing to all the
parties, positively on or before 15.11.2023.

35. Allowed in aforesaid terms.
----------
(2023) 10 ILRA 383
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 26.09.2023

BEFORE

THE HON'BLE SURYA PRAKASH KESARWANI,
J.
THE HON'BLE MS. NAND PRABHA SHUKLA, J.

Government Appeal No. 131 of 1986

The State of U.P. ...Appellant
Versus
Rai Singh & Ors. ...Respondents

Counsel for the Appellant:
A.G.A.

Counsel for the Respondents:
Pt. Maha Chandra, Sri S.K. Yadav

A.
Criminal
Law-Criminal
Procedure
Code,1973-Section 378-Indian Penal Code,
1860-Sections 302/34, 120B-Challenge toacquittal-In the present case, there are direct
evidence/eye witness about the incident-As
per evidence of PW-2, the deceased would
have taken food about four hours before his
death-No inconsistency in the ocular evidence
and the medical evidence as to the time of
death of the deceased-PW-2 being the mother
of the deceased who was sitting outside the
house is a natural witness who has seen the
incident-accused opposite party nos 2 and 3
conspired, shared common intention by
catching hold of the deceased to enable the
accused
opposite
party
no.1
to
give
repeated blows of Gandsa-Thus, the Trial
court ignored the valuable and credible
evidence-Accused
held
guilty
of
committing
offence
under
section
302/34,120B. (Para 1 to 38)

The appeal is allowed. (E-6)

List of cases cited:

1. Mahendra Singh & ors. Vs St. of M.P. (2022)
7 SCC 157

2. Khema @ Khem Chandra etc. Vs St. of U.P.
(2022) SCC OnLine SC 991

3. Baleshwar Mahto & anr.. Vs St. of Bih. & anr.
(2017) 3 SCC 152

4. Kamaljit Singh Vs St. of Punj. (2003) 12 SCC
155

5. Baleshwar Mahto & anr.. Vs St. of Bih. & anr.
(2017) 3 SCC 152

6. P. Venkaiah Vs St. of A.P. (1985) AIR SC
1715

7. Jitender Kumar Vs St. of Har.(2012) AIR SC
2488