# M/S MMI Tobacco Pvt. Ltd. & Anr v. Iftikhar Alam - **Citation:** (2024) 7 ILRA 822 - **Court:** High Court of Judicature at Allahabad - **Decided:** 2024-07-05 - **Case number:** First Appeal From Order No. 411 of 2024 - **Bench:** Kshitij Shailendra - **Source:** https://unisonlegal.in/judgment/allahabad-high-court/m-s-mmi-tobacco-pvt-ltd-anr-v-iftikhar-alam-52292 - **Pages:** 18 ## Headnote Civil Law _ Code of Civil Procedure, 1908 - Order XLIII Rule 1(r) - Trade Marks Act, 1999 - Sections 29, 31, 34, 127, 134 & 135 - Copyright Act, 1956 - Section 62 - Trade Marks Rules, 2017 - Rule 25, 119 - Indian Contract Act, 1872 - Section 62 - Impugned order challenged, by which Injunction application rejected - Appellant was engaged in production and sale of tooth power, namely, "Musa-KaGul" by wholesale and retail activity - Appellant company and its predecessors had been selling product since 04.03.1974 and registered their trade mark, valid upto 15.01.2024 - On 16.08.2022 appellant came to know that defendant selling the same product by same name - Suit was instituted - Claiming decree alongwith seeking temporary injunction - Defendant may be restrained from producing, selling tooth powder "Asli Musa-KaGul" - Held, the appellants have succeeded to establish all the three ingredients existing in their favour and in case injunction, is not granted, they would suffer day-to-day damages and losses on account of continuous infringement of their trade mark - Sales of the appellants have 7 All. M/S MMI Tobacco Pvt. Ltd. & Anr. Vs. Iftikhar Alam 823 drastically dropped on account of use of their goodwill by defendant, who is misleading the customers about the product and, consequently, appellants are loosing their customers - Impugned order is set aside- directions accordingly (Para 2, 3, 4, 29, 32) Appeal is allowed. (E-13) List of Cases cited: ## Text _Characters 0–39,935 of 61,283. This is a partial read: ask again with offset=39935 for what follows._ 822 INDIAN LAW REPORTS ALLAHABAD SERIES words, clearly infer that these were executed as pure agreements for sale of the agricultural land. 16. Last submission of learned counsel for the appellant that entire property covered by agreements or suit itself has not been sold, but only part thereof has been sold, also does not appeal to the Court for the reason that the agreement was in relation to 1/8th share in Gata No. 574 and the entire 1/8th has been sold to defendant No. 2. Irrespective of the fact that Gata No. 547 has or has not been sold, the same would not be read a circumstance in favour of the defendant or against the plaintiff. The defence of hardship stands washed off with execution of sale deed dated 25.07.2012 by the appellant in favour of defendant No. 2 and discretion to pass a decree against him emerges from the sale that was made in violation of the undertaking given by him on oath before the Appellate Court. As far as sale deed dated 25.07.2012, the same is clearly hit by the doctrine of lis pendens covered by Section 52 of the Transfer of Property Act, 1882. 17. In view of the aforesaid discussion, this Court does not find any good ground to interfere with the order of Appellate Court or to upset the findings of fact recorded by it. No substantial question of law arises for consideration by this Court. 18. Second appeal has no force and is, accordingly, dismissed. 19. The decree shall be executed forthwith positively by the end of this year, i.e. 2024. ---------- (2024) 7 ILRA 822 APPELLATE JURISDICTION CIVIL SIDE DATED: ALLAHABAD 05.07.2024 BEFORE THE HON'BLE KSHITIJ SHAILENDRA, J. First Appeal From Order No. 411 of 2024 M/S MMI Tobacco Pvt. Ltd. & Anr. ...Appellants Versus Iftikhar Alam ...Respondent Counsel for the Appellants: Sri Arvind Srivastava, Sri Mohammad Waseem, Sri T.P. Singh (Sr. Advocate) Counsel for the Respondent: Sri Santosh Kumar Tripathi, Sri Udyan Nandan, Sri Shashi Nandan (Sr. Advocate) Civil Law _ Code of Civil Procedure, 1908 - Order XLIII Rule 1(r) - Trade Marks Act, 1999 - Sections 29, 31, 34, 127, 134 & 135 - Copyright Act, 1956 - Section 62 - Trade Marks Rules, 2017 - Rule 25, 119 - Indian Contract Act, 1872 - Section 62 - Impugned order challenged, by which Injunction application rejected - Appellant was engaged in production and sale of tooth power, namely, "Musa-KaGul" by wholesale and retail activity - Appellant company and its predecessors had been selling product since 04.03.1974 and registered their trade mark, valid upto 15.01.2024 - On 16.08.2022 appellant came to know that defendant selling the same product by same name - Suit was instituted - Claiming decree alongwith seeking temporary injunction - Defendant may be restrained from producing, selling tooth powder "Asli Musa-KaGul" - Held, the appellants have succeeded to establish all the three ingredients existing in their favour and in case injunction, is not granted, they would suffer day-to-day damages and losses on account of continuous infringement of their trade mark - Sales of the appellants have 7 All. M/S MMI Tobacco Pvt. Ltd. & Anr. Vs. Iftikhar Alam 823 drastically dropped on account of use of their goodwill by defendant, who is misleading the customers about the product and, consequently, appellants are loosing their customers - Impugned order is set aside- directions accordingly (Para 2, 3, 4, 29, 32) Appeal is allowed. (E-13) List of Cases cited: 1. S. Syed Mohideen Vs P. Sulochana Bai, (2016) 2 SCC 683 2. Rajendra Prasad Gupta Vs Prakash Chandra Mishra & ors., (2011) 2 SCC 705 3. Aman Lohia Vs Kiran Lohia, 2021 (5) SCC 489 4. K.K. Modi Vs K.N. Modi & ors., (1998) 3 SCC 573 5. Zenit Mataplast P. Ltd. Vs St. of Mah. & ors., (2009) 10 SCC 388 6. H.R. Basavaraj (Dead) by his LRs. and another Vs Canara Bank & ors., (2010) 12 SCC 458 (Delivered by Hon'ble Kshitij Shailendra, J.) 1. Heard Shri T.P. Singh, learned Senior Counsel assisted by Shri Arvind Srivastava and Shri Mohammad Waseem, learned counsel appearing on behalf of plaintiff-appellants and Shri Shashi Nandan, learned Senior Counsel assisted by Shri Santosh Kumar Tripathi and Shri Udyan Nandan, learned counsel appearing for defendant-respondent. THE APPEAL 2. The instant appeal under Order XLIII Rule 1(r) of Code of Civil Procedure, 1908, has been preferred by the plaintiffsappellants of Original Suit No. 20 of 2022 (M/s M.M.I. Tobacco Pvt. Ltd. and another vs Iftikhar Alam) challenging the order dated 30.01.2024, whereby the District Judge, Varanasi has rejected their injunction application (Paper No. 6-C). Further prayer made is to allow the injunction application dated 25.08.2022. PLAINTIFFS' CASE 3. The said Original 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-- respondent Iftikhar Alam under Sections 29, 134, 135 of the Trade Marks Act, 1999 and Section 62 of the Copyright Act, 1956 with the averments that plaintiff No.1 was a private limited company, well established in India and was engaged in the production and sale of tooth power, namely, "MusaKa-Gul" by wholesale and retail activity. It was further alleged that plaintiff No.1 company and its predecessors had been lawfully selling the said product since 04.03.1974 and that copyright office at New Delhi had issued Registered No. A0131294/2010 on 04.10.2019, Label 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 plaintiff No.1 company had been registered on 16.12.2011 and its trade mark had been registered on 15.01.1994 at Registration No. 616611, Certificate No.733679, which would be valid upto 15.01.2024. In paragraph No. 14 of the plaint, it was pleaded as follows:- "यि हक मो० ख हिक ने मूस एण्ड सधस क अपन स र अहधक र जररए एस इनमेधट डीड 19.07.2012 मेससु एम०एम० इधडस्रीज को अधतररत कर हदय हजसके प टुनर मो० द हनश ि मो० न हजश मो० ख हिक थे तथ मेससु एम०एम० इधडस्रीज जररए प टुनर मो० ख हिक ि मो० द हनश ि मो० न हजश 824 INDIAN LAW REPORTS ALLAHABAD SERIES ने रेडम कु नांबर-616611 क अपन स र अहधक र जररए एस इनमेधट डीड हदन ांक 28.03.2019 मेससु एम०एम०आई० टुबैको प्र ०हि० ि दी सांख्य -1 कम्पनी को अधतररत कर हदय इस तरि रेडम कु नांबर-616611 मूस क गुि (न म) क प्रयोग करने क ि दी कम्पनी को पूणु अहधक र प्र प्त िै। प्रहति दी को (असिी मूस क गुि) न म ि कम्पनी क न म (मो० मूस एण्ड सन) हडहबय पर हिखने क कोई अहधक र निीं िै। प्रहति दी क न तो कम्पनी एक्ट में रहजस्रेशन िै तथ न तो रेडम कु क रहजस्रेशन िै तथ न तो क पी र ईट एक्ट में रहजस्रेशन िै तथ न तो एम०एम०आई० एण्ड कां० द्व र ि इसेधस प्रहति दी को हदय गय िै।" 4. The cause of action for filing suit was alleged to have accrued on 16.08.2022 when the plaintiffs came to know about defendant selling the same product by the same name and, therefore, suit was instituted claiming a decree alongwith an application 6-C seeking temporary injunction pending suit, to the effect that the defendant may be restrained, either himself or through any camouflaged company, assignee, nominee, employee or agent from producing, selling or trading tooth powder "Asli Musa-Ka-Gul" and not to write "Asli Musa-Ka-Gul" on the container and wrappers or name of the company, i.e. Mohd. Musa and sons or M.M.I and Company. 5. The case of the plaintiffsappellants, in a nutshell, is that they have exclusive right to use "Musa-Ka-Gul" with man device and photographs of Mohd. Musa and Mohd. Subedar for selling the product manufactured by them. The plaintiff No. 1 claims to be a reputed Company manufacturing tooth powder in the name of "Musa-Ka-Gul" with the aforesaid design and colour from the time of its predecessor-in-interest since 04.03.1974. They claim to have registered their trade mark No. 616611 with such description. They also have copyrights having registration No. A131294 of 2019 (Paper No. 12-Ga), A140586 of 2021 (Paper No. 13-Ga) and A140587 of 2021 (Paper No. 14-Ga) of the exclusive design and colour to be exclusively used by them on the wrapper and container of the product sold by them. DEFENDANT'S CASE 6. The defendant contested the claim for injunction by filing objection (Paper No. 40-C) supported by affidavit (Paper No. 41-C) stating therein that the registered trade mark No. 616611 was pending for rectification before the Registrar of Trade Marks; that the product "Musa-Ka-Gul" had been adopted by Mohd. Musa and sons, whose partners were Mohd. Subedar and Mohd. Islam; that Mohd. Musa and sons applied for registration of trade mark vide application No. 354633, in which the user was described since 04.03.1974. Mohd. Khalique, son of Mohd. Subedar was inducted in the partnership of the firm since 1983; the firm functioned upto 1997 with partners Mohd. Subedar and Mohd Islam, sons of Mohd. Musa and Mohd. Khalique, son of Mohd. Subedar; that it was dissolved in the year 1997, as a result whereof, a decision was taken to surrender the trade mark along with its goodwill before the Tribunal. Mohd. Islam, while being a partner, had assigned permission to use "Musa-Ka-Gul" with horse mark and "Musa-Ka-Gul" with photograph of Mohd. Musa in favour of wife of Mohd. Islam, namely Ishrat Jahan, on 01.04.1983 and, consequently, authorised her to get the trade mark registered and conduct business. Ishrat Jahan, by executing an assignment deed dated 28.05.2007, transferred the right of user to the defendant- objector Iftikhar Alam. It was further stated that plaintiff 7 All. M/S MMI Tobacco Pvt. Ltd. & Anr. Vs. Iftikhar Alam 825 No. 1 and the defendant were contesting in different proceedings relating to the trade mark and matter was pending before the Registrar, Trade Marks, i.e. the Competent Authority, in the form of an application to cancel/rectify the trade mark No. 616611. Further objection was that trade mark of plaintiffs was different from the one of the defendant and, hence, the plaintiffs neither had a prima facie case, nor did the balance of convenience lie in their favour nor would they suffer irreparable injury, in the event injunction was refused. TRIAL COURT'S PREVIOUS ORDER 7. The trial court, by an order dated 10.10.2022, allowed the application (Paper No. 6-C) granting temporary injunction pending suit, restraining the defendantrespondent from producing, selling or trading in tooth powder ("Asli Musa-KaGul"), either himself or in the name of camouflaged company or through any assignee, nominee, employee or agent and not to write "Asli Musa-Ka-Gul" on the container (dibbi) and wrappers or name of the company, i.e. Mohd. Musa and sons or M.M.I. and Company. INTERFERENCE BY THIS COURT IN EARLIER ROUND 8. As against the aforesaid order dated 10.10.2022, the defendant-Iftikhar Alam filed First Appeal From Order No. 77 of 2023 (Iftikhar Alam vs. M/s M.M.I. Tobacco Pvt. Ltd. and Another) before this Court. The appeal was allowed by a detailed order dated 07.08.2023; the order dated 10.10.2022 was set aside only on the ground that the order granting injunction did not deal with the case of the parties nor the documents on record and that injunction was cryptically granted ignoring three basic ingredients. The matter was remanded to the trial court for fresh consideration of the injunction application in the light of factors enumerated in paragraph No. 24 of the order. This Court also permitted the parties to file additional documents before the trial court. The trial court has, this time, rejected the injunction application by the order impugned dated 30.01.2024. SUBMISSIONS OF LEARNED COUNSEL FOR PLAINTIFFSAPPELANTS 9. Shri T.P. Singh, learned Senior Advocate assisted by Shri Arvind Srivastava and Shri Arvind Srivastava separately also, made following submissions: (i) The defendant did not approach the Court with clean hands and deliberately concealed the proceedings culminated upto Calcutta High Court. Pursuant to the permission granted by this Court under order dated 07.08.2023, the appellant filed an application No. 157-C annexing therewith ten documents numbered from Paper No. 159-C to 168-C. While referring to the said documents, it is urged that Mohd. Islam, son of late Mohd. Musa, through document dated 01.04.1983, had made a declaration in favour of his wife Ishrat Jahan permitting her to manufacture goods "Gul" by using trade mark Mohd. Musa, i.e. name of Mohd. Islam's father in any manner and his photograph, design of head of horse, words "Musa-Ka-Gul" etc. on the label or in any manner by using the said trade mark with her own design, get-up etc. and that she would be at liberty to get the said trade mark, word and label registered under the 826 INDIAN LAW REPORTS ALLAHABAD SERIES Trade and Merchandise Marks Act, 1958 in her own name as owner. (ii) Ishrat Jahan, at the strength of the said authorisation made by Mohd. Islam, executed a deed of assignment on 26.05.2007 in favour of defendantrespondent-Iftikhar Alam stating therein that the assigner (Ishrat Jahan), being the proprietor of the trade mark "Musa-KaGul" label in class-3 under Application No. 585128 dated November 19, 1992 and any other mark containing the word "Musa" and/ or photograph of late Mohd. Musa and/ or any artistic work containing the same, had agreed to assign the said trade mark to the assignee Iftikhar Alam together with the goodwill of the business concerned with the goods for which the said trade mark is used. The Application No. 585128 dated 19.11.1992 contained a specific condition, viz, "registration of this trade mark shall give no right to the exclusive use of word 'Gul' and all other descriptive matters appearing in the label". The said Application No. 585128 was, later on, got dismissed as withdrawn by Ishrat Jahan herself on 15.06.2010. (iii) Ishrat Jahan made a request on 26.03.2009 before the Senior Examiner of Trade Marks, Kolkata under the Trade Marks Act, 1999 requesting that statement of use may be amended to read as "3rd April, 1984". The application was rejected by order dated 27.10.2009 for various reasons including on the ground that the amendment was sought after a long delay of 16 years. (iv) The application for rectification, moved by Ishrat Jahan in relation to the registered trade mark No. 558741, was rejected by the Assistant Registrar of the Trade Marks, Kolkata on 25.03.2010, meaning thereby that the claim set up by Ishrat Jahan was successively turned down at the level of the Competent Authority. (v) The defendant-Iftikhar Alam (assignee from Ishrat Jahan) filed a Review Petition before the Intellectual Property Appellate Board, Chennai Circuit Bench at Kolkata, seeking review of an Order No. 148 2011 dated 24.08.2011. The application was, however, rejected on 06.12.2012. The defendant-Iftikhar Alam carried the matter to the Calcutta High Court where also his prayer was rejected by order dated 21.03.2013. (vi) Once the predecessor-ininterest of the defendant and the defendant himself lost the battle upto Calcutta High Court, he has no claim at the strength of assignment made by Ishrat Jahan in his favour and, hence, the entire defence is baseless, however, the trial court has not considered the documents to that effect while passing the order impugned. (vii) As regards prior user, reference has been made to the registered trade mark Application No. 616611, which shows the date of registration as 15.01.1994, renewing date as 15.01.2014, registration being valid upto 15.01.2024. It is further contended that certificate contains history data describing step-by-step proceedings in relation to the registered trade mark with clear words that pursuant to the request made on Form TM-P dated 30.04.2019 and order dated 10.05.2019 passed thereon, the address of registered business was changed to 25-B, Zakaria Street, Kolkata, West Bengal and pursuant to a request on Form TM-P dated 29.05.2019 and order dated 13.08.2019 passed thereon, M.M.I. Tobacco Private Limited (i.e. plaintiff-appellant No. 1) has been brought on record as subsequent proprietor in respect of the said registered trade-mark by virtue of assignment deed dated 28.03.2019, affidavit dated 7 All. M/S MMI Tobacco Pvt. Ltd. & Anr. Vs. Iftikhar Alam 827 28.03.2019 and general power of attorney dated 24.03.2019. (viii) The trial court, though referred the documents, paper Nos. 162-C to 168-C and observed about the user date as 04.03.1974, the defendant made no denial, hence, it has fallen into a grave error in rejecting the claim for injunction, inasmuch as prior user by plaintiffs since 1974 became an admitted fact before the trial court. (ix) The plaintiffs-appellants, being owner of the registered trade mark No. 616611 and also its prior user in comparison to Ishrat Jahan or her assignee, i.e. the defendant-respondent, they were entitled for injunction and even if, for any interpretation, the documents of Ishrat Jahan are read otherwise, since the condition imposed was specified as "registration of this trade mark shall give no right to the exclusive use of word 'Gul' and all other descriptive matters appearing in the label", the defendant would have no case. (x) The trial court has wrongly observed that the plaintiffs had admitted about Ishrat Jahan's prior user of trade mark No. 616611, as the plaintiffs' trade mark was applied on 15.01.1994, prior to which Ishrat Jahan had applied for trade mark No. 585128 on 19.01.1992. SUBMISSIONS OF LEARNED COUNSEL FOR DEFENDANTRESPONDENT 10. On the other hand, Shri Shashi Nandan, learned Senior Advocate, has raised following arguments: (i) The application for injunction cannot be considered on pleas other than those, on which plaint case is based. By referring to paragraph Nos. 13 and 14 of the plaint, he submits that though plaintiff No. 1 claims to have come into existence pursuant to the assignment deed dated 28.03.2019 from its predecessor, that had derived its existence vide assignment deed dated 19.07.2012, the statement made in paragraph No. 4 of the plaint that plaintiff No. 1 company and its predecessor were manufacturing and selling tooth powder "Musa-Ka-Gul" since 04.03.1974 cannot, at all, be accepted. (ii) The assignment referred to in paragraph No. 14 of the plaint lost its significance after the assignor had withdrawn from assignment vide application, paper Nos. 47-C/6, 47-C/8 and 47-C/10, dated 16.03.2016, whereby the partners had requested the Deputy Registrar of Trade Marks to withdraw and cancel the trade mark and TM-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 proprietory rights of the said trade mark "Musa-Ka-Gul" with bust photograph of late Mohd. Musa under registered trade mark No. 616611 in Class-3. (iii) Since the 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 and also injunction application stood vanished and, hence, this Court should dislodge the entire claim for injunction. (iv) Though it is true that there was a registered trade mark of the plaintiffs, injunction could not be granted merely on this ground, as the defendant was the prior user of the product. In this regard, he has referred to Section 34 of the Act, 1999, which reads as under:- "34. Saving for vested rights.- Nothing in this Act shall entitle the proprietor or a registered user of registered 828 INDIAN LAW REPORTS ALLAHABAD SERIES 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 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." (v) Prior user becomes a right vested 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 by the prior user. (vi) The plaintiffs have to stand on their own legs and they cannot strengthen their case by pointing out some lacuna or weakness in the defence of the other side and, as per the plaintiffs themselves, they would be deemed to have born on 28.03.2019, i.e., the date on which assignment was made by M.M. Industries in favour of plaintiff No.1 and they cannot contend anything anterior in point of time by referring to the proceedings undertaken by Ishrat Jahan or her assignee. (vii) By referring to documents filed as paper No. 47-C/6 contained in different sub-parts and appended from page Nos. 84 to 99 of the counter affidavit, it is contended that Mohd. Khalique, as partner of M/s Musa and sons, on 16.03.2016, submitted before the Deputy Registrar of the Trade Marks that he had wrongly assigned mark "Musa-Ka-Gul" with bust photograph of late Mohd. Musa under registered trade mark No. 616611 in Class3 in favour of M/s M.M. Industries by deed of assignment dated 19.07.2012 and that he denied all the terms and conditions specified and mentioned under the said deed, which had been filed under TM-24 application dated 07.08.2013. Mohd. Khalique expressed his non-inclination to assign the said trade mark in favour of M/s M.M. Industries and requested the Registrar to cancel the deed of assignment dated 19.07.2012. (viii) In continuation, Mohd. Nazish, as partner of M/s M.M. Industries, by his application dated 16.03.2016, termed the deed of assignment dated 19.07.2012 as improper and untenable in the eyes of law and expressed his dis-interest to take proprietary rights of the trade mark No. 616611 and he also requested the Registrar to cancel TM-24 application along with the deed. (ix) In continuation, Mohd. Khalique filed an affidavit before the Trade Mark Authorities in the form of an assignment deed dated 28.03.2019 qua registered trade mark No. 616611, executed in between Mohd. Khalique, Mohd. Danish, Mohd. Nazish and Zoya Shahid as partners of M.M. Industries on the one hand (termed as assigners) and M.M.I. Tobacco (P) Ltd. on the other hand (termed as assignees), however, such an assignment is wholly baseless in view of the applications dated 16.03.2016, by which, the previous assignment made in favour of M/s M.M. Industries (assigner of plaintiff No. 1), vide deed dated 19.07.2012, had been withdrawn/ cancelled. (x) As regards proceedings held in Calcutta, it is contended that the defendant has filed a review application 7 All. M/S MMI Tobacco Pvt. Ltd. & Anr. Vs. Iftikhar Alam 829 against the order of Trade Marks Tribunal dated 25.07.2019 in relation to Application No. 585128 in class-3 under Section 127 of the Act of 1999 read with Rule 119 of the Rules of 2017 and the said application is still pending. The contention is that the application, being statutory in nature, its pendency itself is sufficient to infer that no finality has been attached in favour of plaintiffs as regards the registered trade mark. The review-provisions pressed by Shri Shashi Nandan, learned Senior Counsel, read as under:- " Section 127. Powers of Registrar.- In all proceedings under this Act before the Registrar,- (a) ...............................; (b) .............................: (c) the Registrar may, on an application made in the prescribed manner, review his own decision. Rule 119. Application for review of Registrar's decision. - An application to the Registrar for the review of his decision under sub-section (c) of section 127 shall be made in Form TM-M within one month from the date of such decision or within such further period not exceeding one month thereafter as the Registrar may on request allow, and shall be accompanied by a statement setting forth the grounds on which the review is sought. Where the decision in question concerns any other person in addition to the applicant, such application and statement shall be left in triplicate and the Registrar shall forthwith transmit a copy each of the application and statement to the other person concerned. The Registrar may, after giving the parties an opportunity of being heard, reject or grant the application, either unconditionally or subject to any conditions or limitations, as he thinks fit." (xi) The concealment of proceedings dated 16.03.2016, made by the plaintiffs-appellants from the officials of Trade Marks and also from the trial court, would dis-entitle them of discretionary relief of injunction and any subsequent documents or orders passed in favour of plaintiffs-appellants would be of no consequence. (xii) Learned Senior Counsel also referred to two more trade mark, bearing No. 354633 appended at page No. 1069 of short counter affidavit (Volume-8) and bearing No. 402105 appended at page No. 1610, (Volume-8) and submitted that, apart from the disputed trade mark Nos. 616611 and 585128, misuse of the same product with different depiction was done by the predecessor-in-interest of the appellants. (xiii) Reliance has been placed on paragraph No. 30 of the judgment of Supreme Court in S. Syed Mohideen vs P. Sulochana Bai, (2016) 2 SCC 683 and it is urged that as per the Apex Court and also under the scheme of the Act itself, superior rights of a prior user of a trade mark have been recognised, even if, the same is registered in favour of other party. Simultaneous reference of internal page No. 14 of the impugned order has been made to demonstrate that voluminous evidence was produced on behalf of defendant-respondent establishing the sale of product since 1984, such as the statements of sale, Income Tax receipts, Registration Certificate issued by the Central Excise Department, documents issued from the State Bank of India as well as receipts of octroi-duty to establish prior user of the product by the defendantrespondent. SUBMISSIONS IN REJOINDER 11. Following submissions have been made on behalf of the appellants in rejoinder: 830 INDIAN LAW REPORTS ALLAHABAD SERIES (i) At no point of time, 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 or the Trade Marks Authorities, it would have no adverse impact on the claim for injunction, inasmuch as the history data shows orders and proceedings held in 2019 regarding change of address as well as subsequent proprietorship in favour of the plaintiff No.1-M.M.I. Tobacco products. Therefore, withdrawal never came in actual existence and assignment made in favour of the plaintiffs would relate back to the era of the predecessor-in-interest of the assigner and would continue until dislodged by Competent Court /Authority. (ii) An affidavit of Mohd. Nazish filed before the trial court, appended at page No. 724 of fifth volume of appellants' paper-book, has been referred to disclose the circumstances under which the application dated 16.03.2016 had been moved, particularly, on account of conflicts amongst family members of Mohd. Khalique and, by the same affidavit, subsequent proceedings in favour of plaintiff No.1 at the strength of assignment deed dated 28.03.2019 were forcefully pressed in relation to form TM-P and other associated documents / certificates, etc. (iii) Placing reliance on the judgment of Supreme Court in Rajendra Prasad Gupta vs. Prakash Chandra Mishra and others, (2011) 2 SCC 705, it is argued that law recognizes "withdrawal of a withdrawal application" and, therefore, unless a positive order is passed on the withdrawal application, mere filing of the same would not ipso-facto infer withdrawal. He, therefore, terms applications dated 16.03.2016 as meaningless and ineffective in view of subsequent developments. (iv) Placing reliance on a judgment of Supreme Court in the case of Aman Lohia vs Kiran Lohia, 2021 (5) SCC 489, especially paragraph 47 thereof, it is argued that there can be no legal presumption about the factum of abandonment of proceedings as the abandonment has to be expressed or even if it is to be implied, the circumstances must be so strong and convincing that drawing such inference is inevitable. (v) Matter went much ahead in terms of assignment deed dated 28.03.2019, which was given effect to by the Department of Trade Marks and that TM-24 application also lost its significance after form TM-P (appended at page No. 392 of third volume of appellants' paperbook) was submitted by assigner M.M. Industries at the strength of deed dated 19.07.2012. (vi) Conduct of parties was further reflected vide documents appended at pages 393, 396 and 397, by which Mohd. Khalique, Mohd. Danish and Mohd. Nazish acted in favour of the plaintiffs by executing general power of attorney authorizing Mr. Ajit Pal and Mr. B.N. Chatterjee Advocates to act on their behalf in legal proceedings and, consequently, the assignment dated 28.03.2019 was duly recorded in form TM-P. (vii) Reference of a judgment of this Court dated 13.10.2023 passed in First Appeal From Order No. 2170 of 2022 (Salik Mukhtar and 4 Others vs. M/s M.M.I. Tobacco Pvt. Ltd. and 2 Others) has also been made. The said appeal had arisen out of lis in between the plaintiffs of this case and other person, however, in relation to the same registered trade mark No. 616611 and the appeal ended in favour of M/s M.M.I. Tobacco Pvt. Ltd., who was defendant in the said proceedings. The said judgment was affirmed by the Hon'ble 7 All. M/S MMI Tobacco Pvt. Ltd. & Anr. Vs. Iftikhar Alam 831 Supreme Court in terms of dismissal of Special Leave to Appeal (C) No. 27265/2023 (Salik Mukhtar and others vs. M/s M.M.I. Tobacco Pvt. Ltd.) by order dated 15.12.2023. It is, therefore, contended that once the rights of M.M.I. Tobacco Pvt. Ltd., the present plaintiffsappellants, at the strength of the same trade mark No. 616611, have been recognized upto the Supreme Court, no contrary view can be taken in these proceedings. (viii) Placing reliance on judgment of Supreme Court in K.K. Modi vs. K.N. Modi and others, (1998) 3 SCC 573, it is argued that the issue that has attained finality cannot be reopened, otherwise it would be an abuse of process of law. (ix) Section 31 of the Act, 1999 has also been referred to contend that registration of a trade mark is to be treated as prima facie evidence of its validity. The provision reads as under: "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 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." (x) Rule 25 of Rules, reproduced as under, has also been referred to: "25. Statement of user in applications.- (1) An application to register a trademark shall, unless the trademark is proposed to be used, contain a statement of the period during which, and the person by whom it has been used in respect of all the goods or services mentioned in the application. (2) In case, the use of the trademark is claimed prior to the date of application, the applicant shall file an affidavit testifying to such use along with supporting documents." WRITTEN SUBMISSIONS ETC. 12. On behalf of plaintiffs-appellants, detailed dates and events in different sets as well as various points for consideration in the form of written arguments have been filed containing detailed discussion of material on record and various authorities of the Hon'ble Supreme Court and various High Courts have been cited, however after careful scrutiny of the same, I find that in case, at this stage of proceedings where this Court is dealing with an appeal arising out of an order passed on an injunction application pending suit, any observation is made or finding recorded, which has the effect of forming a final opinion by this Court as regards the rival claims of the parties qua the registered Trade Mark or product or its user, it would certainly affect the trial as well as the ultimate conclusion to be drawn by the trial court in the suit itself. As noted above, this Court is examining the rival claims on the touchstone of three basic ingredients associated with grant/refusal of temporary injunction in the light of the material available on record and, therefore, the Court does not feel it appropriate to go 832 INDIAN LAW REPORTS ALLAHABAD SERIES beyond the scope of interference in a miscellaneous appeal under Order XLIII Rule 1(r) of Code of Civil Procedure, 1908, otherwise it would seriously prejudice the case of the contesting parties either-way. ANALYSIS OF RIVAL CONTENTIONS 13. Having heard the learned counsel for the parties, this Court may, first, note the bare fundamental principle governing decision in matter of grant or refusal of injunction. It is well settled that injunction application is decided on the test of satisfaction of three basic parameters and ingredients, i.e. prima facie case, balance of convenience and irreparable injury. By that time, primary and secondary evidence is not before the Court and, even if it is there, it is not to be considered because any piece of evidence would be subject to proof and dis-proof during the course of trial when the witnesses appear for examination and cross-examination. 14. In the case of Zenit Mataplast P. Ltd. Vs State of Maharashtra and others, (2009) 10 SCC 388, the Supreme Court considered the principles for grant of interim relief by referring to its previous judgments and held as under: "23. Interim order is passed on the basis of prima facie findings, which are tentative. Such order is passed as a temporary arrangement to preserve the status quo till the matter is decided finally, to ensure that the matter does not become either infructuous or a fait accompli before the final hearing. The object of the interlocutory injunction is, to protect the plaintiff against injury by violation of his right for which he could not be adequately compensated in damages recoverable in the action if the uncertainty were resolved in his favour at the trial. (vide Anand Prasad Agarwalla v. State of Assam vs. Tarkeshwar Prasad & Ors. AIR 2001 SC 2367; and Barak Upatyaka D.U. Karmachari Sanstha (2009) 5 SCC 694) 24. Grant of an interim relief in regard to the nature and extent thereof depends upon the facts and circumstances of each case as no strait-jacket formula can be laid down. There may be a situation wherein the defendant/respondent may use the suit property in such a manner that the situation becomes irretrievable. In such a fact situation, interim relief should be granted (vide M. Gurudas & Ors. Vs. Rasaranjan & Ors. AIR 2006 SC 3275; and Shridevi & Anr. vs. Muralidhar & Anr. (2007) 14 SCC 721. 25. Grant of temporary injunction, is governed by three basic principles, i.e. prima facie case; balance of convenience; and irreparable injury, which are required to be considered in a proper perspective in the facts and circumstances of a particular case. But it may not be appropriate for any court to hold a mini trial at the stage of grant of temporary injunction (Vide S.M. Dyechem Ltd. Vs. M/s. Cadbury (India) Ltd., AIR 2000 SC 2114; and Anand Prasad Agarwalla (supra). 26. In Colgate Palmolive (India) Ltd. Vs. Hindustan Lever Ltd., AIR 1999 SC 3105, this court observed that the other considerations which ought to weigh with the Court hearing the application or petition for the grant of injunctions are as below : (i) Extent of damages being an adequate remedy; (ii) Protect the plaintiff's interest for violation of his rights though however having regard to the injury that may be suffered by the defendants by reason therefor ; 7 All. M/S MMI Tobacco Pvt. Ltd. & Anr. Vs. Iftikhar Alam 833 (iii) The court while dealing with the matter ought not to ignore the factum of strength of one party's case being stronger than the others; (iv) No fixed rules or notions ought to be had in the matter of grant of injunction but on the facts and circumstances of each case- the relief being kept flexible; (v) The issue is to be looked from the point of view as to whether on refusal of the injunction the plaintiff would suffer irreparable loss and injury keeping in view the strength of the parties' case; (vi) Balance of convenience or inconvenience ought to be considered as an important requirement even if there is a serious question or prima facie case in support of the grant; (vii) Whether the grant or refusal of injunction will adversely affect the interest of general public which can or cannot be compensated otherwise." 15. The suit giving rise to the instant appeal was instituted in relation to the trade mark No. 616611, registered on 15.01.1994 and no other trade mark is in dispute. There are two plaintiffs, one being M/s M.M.I. Tobacco Pvt. Ltd. through its Director Mohd. Nazish, son of Mohd. Khalique and the other being Mohd. Nazish in his personal capacity. The basis of the claim is the deed of assignment dated 28.03.2019 executed by M/s M.M. Industries through its partners Mohd. Khalique, Mohd. Danish and Mohd. Nazish. The said partners drew their existence at the strength of assignment made by Mohd. Musa and sons through Mohd. Khalique in favour of M/s M.M. Industries vide assignment deed dated 19.07.2012. In paragraph No. 4 of the plaint, it is pleaded that plaintiff No. 1 and its predecessor, from 04.03.1974, had been conducting wholesale business of tooth powder ("Musa-Ka-Gul"). Registered trade mark contains a history data mentioning that pursuant to a request on form TM-P dated 30.04.2019 and order dated 10.05.2019 passed thereon, registered proprietor's name & style is altered to M/s M.M.I. Industries and pursuant to a request on form TM-P dated 30.04.2019 and the order dated 10.05.2019 passed thereon, its address is also altered to 25-B, Zakaria Street, Kolkata, West Bengal and, further, pursuant to a request on form TM-P dated 29.05.2019 and order dated 13.08.2019 passed thereon, M/s M.M.I. Tobacco (P) Ltd. (i.e. plaintiff-appellant No.1) has been brought on record as a subsequent proprietor in respect of said registered trade mark by virtue of assignment deed dated 28.03.2019, affidavit dated 28.03.2019 and general power of attorney dated 24.03.2019. As regards other trade mark Nos. 354633 and 402105, the Court is not inclined to deal with any contention as the same do not form subject matter of lis, which is in relation to registered trade mark No.