1. By the impugned order dated 14/11/2003 District Judge, Mandleshwar in his Civil Suit No. 15-A/2003 (M/s. K.P. Pouches Pvt. Ltd. v. M/s. Rati Traders) a passing of action had granted a temporary injunction against manufacture, sale, distribution and advertising etc. of gutkha or pan masala in name of "Safal". The learned District Judge has further stayed the trial of the civil suit pending before it on application under Section 10 readwith Section 151 of the Code of Civil Procedure (Code for short) as a similar Suit No. 1-A/2003 for passing of action filed by the appellant had been pending in Agra Court.
2. Trade mark "Safal" is being used for their pan masala and gutkha by both the parties. This trade name is not registered trade name of either party. Trade name being identical is certainly confusing to the consumers of pan masala and gutkha who arc generally illiterates or semi-literates. Mainly, decision on three questions is pertinent for disposal of this appeal:-
(i) Whether Mandleshwar Court was justified in granting temporary injunction despite pendency of earlier suit for passing of in Agra Court filed by the appellant?
(ii) Whether the respondent was prima facie proved to be the prior user of the trade mark "Safal"?
(iii) Is the suit properly framed and presented by duly authorized person on behalf of private company?
3. Advocates of both the parties had vehemently agitated on these points before me in this appeal.
4. Certainly, the appellant had filed the Civil Suit No. 1/2003 (Ajay Kumar Agarwal v. M/s. K.P. Pouches (P) Ltd.) on 03.02.2003 in that civil suit an application for temporary injunction for restraining the respondent from use of trade name "Safal" had also been filed. Such application had not been decided for more than 5 months. The present civil suit was filed in Mandleshwar Court on 10.07.2003. Court took prompt action and granted ex-parte injunction valid for 30 days. However, thereafter bi-parte decision was being delayed. Hence, this Court in M.A. No. 1455/2003 set-aside such ex-parte order which had already become inoperative by lapse of time with a direction to decide the matter bi-parte within a fortnight. The appellant moved an application under Section 10 read with Section 151 of the Code on 17.10.2003 and by impugned order learned District Judge has stayed the trial of the civil suit at Mandleshwar till the civil suit at Agra is disposed of. However, the learned District Judge has considered the temporary injunction application and disposed of the same.
5. It is well settled that under Section 10 only trial of suit is stayed. The suit becomes dormant but the same is not dismissed and is still alive. The court can dispose of interim mailers even after such stay of trial E.C.E. Ltd. v. Action Construction Equipment Pvt. Ltd., AIR 1999 Delhi 73, Century Proteins Ltd. v. Sham Sunder (Haryana) Industries Pvt. Ltd., AIR 2000 Punjab and Haryana 224. In both these cases decision of temporary injunction applications after stay of trial was held possible. In V.P. Vrinda v. K. Indira Devi, AIR 1995 Kerala 57 also adopted the same view. In Indian Bank v. M.S. Co-op. Marketing Fedn. Ltd., AIR 1998 SC 1952 subsequently instituted summary suit was not held to be covered within the meaning of word trial in the words of Apex Court itself.
"The object of the prohibition contained in Section 10 is to prevent the Courts of concurrent jurisdiction from simultaneously trying two parallel suits and also to avoid inconsistent findings on the matters in issue. The provision is in the nature of a rule of procedure and does not affect the jurisdiction of the Court to entertain and deal with the later suit nor does it create any substantive right in the matters. It is not a bar to the institution of a suit. It has been construed by the Court as not a bar of the passing of interlocutory orders such as an order for consolidation of the later suit with the earlier suit or appointment of a Receiver of an injunction or attachment before judgment. The course of action which the Court has to follow according to Section 10 is not to proceed with the 'trial' of the suit but that does not mean that it cannot deal with the subsequent suit any more or for any other purpose. In view of the object and nature of the provision and the fairly settled legal position with respect to passing of interlocutory orders it has to be stated that the word 'trial' in Section 10 is not used in its widest sense."
6. A Division Bench of M.P. High Court also in Madanlal v. Kamlesh Nigam, 1975 MPLJ 240 had held that even after stay of the further proceedings in the trial, during the pendency of revision, the trial court has the jurisdiction to pass orders on applications under Order 22 Rules 3 and 4, Order 39 Rules 1 and 2, Order 40 Rule 1 or under Order 38 Rule 5 of the Code during the operation of stay order party securing such order would not be guilty of contempt of court. The same was the view taken by Delhi High Court in Suraj Industries v, Manek Industries, 1991 PTC 141 wherein the suit at Delhi had been stayed as earlier suit was pending in District Court, Mahasana. It is true that Delhi High Court has stayed the interim orders passed by the District Judge also and respected the interim orders passed by Mahasana Court. However, it is noteworthy that Agra Court has not granted any temporary injunction while in that case Mahasana Court had already given injunction.
7. Certainly principles for grant of temporary injunction are well settled. Before such grant the court must be satisfied that a strong prima facie case had been made out by the plaintiff. Question of maintainability of the suit has also to be considered with the balance of convenience in favour of the plaintiff and that the refusal of the injunction would cause irreparable injury to the plaintiff Century Traders v. Roshan Lal Duggar & Co., ILR (1977) II Delhi 709. The court should also be willing to extend its hand to protect a citizen who is being wronged or is being deprived of his rights. However, the court should not protect or perpetuate the wrong committed by a person who approaches the court Shiv Kumar Chadha v. MCD, (1993) 3 SCC 161. The court considering injunction application has to first ascertain whether it has jurisdiction to entertain the suit secondly whether suit is not barred under any provision of law. Vindhya Telelinks Ltd. v. State Bank of India, 1995 JLJ 609 (DB). The court should not continue hide and seek and should not grant an injunction in favour of the party suppressing material facts. Vellakutty v. Karthyayani, AIR 1968 Kerala 179, Zikar v. M.P. State Govt. AIR (38) 1951 Nagpur 16. In case the affidavit in support of application was not candid and did not fairly state the facts, but stated them in such a way as to mislead the court, as to the true facts, the Court ought for the own protection and to prevent an abuse of its process to refuse to proceed any further.
8. Advocate for appellant has strenuously argued that the Mandleshwar Court situate in an interior small town has no jurisdiction to decide the suit or application and the respondent had approached that court to over reach and preempt the proceedings taken by the appellant in Agra Court. He has gone to the extent of alleging that the respondent had indulged in forum hunting and indulged in hide and seek in his plaint and application and such an attempt of the respondent should not be continued. However, it is noteworthy that no personal allegation against the District Judge, Mandieshwar was levelled earlier, though the appellant did approached this Court in M.A. No. 1455/2003 but the appellant did not seek transfer of the case from that Court. There has been no material on record to show that the respondent was a Delhi based company had any reason to prefer the Mandleshwar Court. It is well established that allegations in the plaint decide the forum and that the jurisdiction does not depend upon the defence taken by the defendant in the written statement Abdulla Bin Ali v. Galappa, AIR 1985 SC 577. In Indian Herbs Research & Supply Co. Ltd. v. Lalji Mal, 2002 (24) PTC 318 (Delhi) the High Court of Delhi has also taken the same view. In Bengal Waterproof Ltd. v. Bombay Waterproof Mnfg. Co. 1997 PTC (17), the Apex Court had pronounced as follows:-
"It is now well settled that an action for passing off is a common law remedy being an action in substance of deceit under the Law of Torts. Wherever and whenever fresh deceitful act is committed the person deceived would naturally have a fresh cause of action in his favour. Thus, every time when a person passes off his goods as those of another he commits the act of such deceit. Similarly whenever and wherever a person commits breach of a registered trade mark of another he commits a recurring act of breach of infringement of such trade mark giving a recurring and fresh cause of action at each time of such infringement to the party aggrieved."
9. It is noteworthy that at the initial stage of consideration on injunction the court below was justified in not having a detailed or deeper probe in such matter. The impugned order clearly shows that the court below had adverted to Mitasi Employees Ltd. v. Mehta Jinabhai Bhimjibhai, 1995 PTC 294 (Delhi) for assuming its jurisdiction. Certainly, a sale of the pouches of appellant company within the local jurisdiction of Mandleshwar Court which fact was supported by affidavit had given jurisdiction to the Mandleshwar Court. Reliance of appellant on H.P.H.P. Marketing & Processing Corpn. v. M.M. Breweries, AIR 1981 Punjab & Haryana 117 that bulk sale by the manufacturer himself to the whole seller or retailer at commercial scale is to be insisted tor assumption of jurisdiction has been without any statutory support for the proposition. The statute had not laid down any condition that bulk sale or commercial sale is necessary for assumption of jurisdiction by a court.
10. Certainly, the respondent M/s. Kamla Kant & Company was entitled to bring such a suit. He had been permitted user thereof under the agreement dated 18.01.2000. The discrepancies pointed out by the appellant in the name of Kanpur and Delhi companies prima facie had not been material. Certainly, Director R.P. Tripathi had been authorized to file and institute the civil suit on behalf of respondent private limited company. Certainly, specifically empowered Director could have filed a civil suit on behalf of company as held in M/s. Nibrao Limited v. National Insurance Co. Ltd., AIR 1991 Delhi 25.
11. The main ground for allowing the application of the respondent by the court below had been that in its opinion the respondent had been prior user of the trade mark "Safal". Certainly, an injunction could be granted in favour of prior user Jai Prakash Gupta v, Vishal Aluminium Mfg. Co., 1996 PTC (16) had been clear authority for the purpose. The learned Judge therein had held:-
"There is no dispute and can be none with the legal proposition that as between the two parties, who proposed to use a particular trade mark the person who designs the mark will get preference over the other and in case of one party proposing to use the mark against the actual user, the later will take precedence. In between the two parties claiming actual user as against the prior user, the party, who is prior in point of time will have the advantage over the other. Even in regard to the prior registration of the trade mark, as against the prior user, the action of the later will prevail. In an action for passing off, in order to succeed in getting an interim injunction, the plaintiff has to establish user of the mark prior in point of time than the impugned user by the defendant. The registration of the mark or similar mark prior in point of time to user by the plaintiff is irrelevant in an action for passing off and the mere presence of the mark in the register maintained by the trade mark registry does not prove its user by the person in whose names the mark is registered and it is irrelevant for the purposes of deciding the application for interim injunction unless evidence has been led or is available of user of their registered trade mark."
12. In N.R. Dongre v. Whirlpool Corporation, 1996 PTC (16), the Apex Court had admitted possibility of grant of injunction against registered owner of trade mark at the instance of prior user of the same or similar mark Century Traders v. Roshan Lal Duggar & Co., ILR (1977) II Delhi takes the same view. There are other authorities to support the case of prior user.
13. It is true that the appellant had obtained a registration of copy right "Safal" gutkha and pan masala as it clear from extracts from copy rights 2003. However, affidavits of Safdar Hashmi relied upon by the appellant had been conflicting. It is noteworthy that the respondent had also applied for registration of copy right. It is noteworthy that both the parties have applied for registration of trade marks. However, trade mark of none had been registered. It is true that the application of the appellant had been earlier in point of time yet that in itself is not conclusive. It is also true that both the parties had submitted copies of documents from sales tax and excise department and these documents show that the appellant also had wide sales but certainly, such sales were not confined from the pouches of "Safal" gutkha and pan masala. It is also true that both the parties had been advertising in news papers. It seems that the appellant had started advertising earlier than the respondent but the learned court below has based his order on letter dated 07.07.2002 by the appellant to Superintendent, Central Excise, Agra intimating the manufacture of a new product in trade name of "Safal" and a reply to letter of the respondent by Superintendent, Central Excise, Agra dated 18.02.2003 which clearly shows that production in trade name of "Safal" gutkha and pan masala by the appellant has been started only recently. Earlier they had been using word "Lucky" and "Anmol" etc. for their products. Application of a party against his interest is best evidence against him. The explanation given by the advocate for the appellant of the letter dated 07.10.2002 that earlier pouches were being sold for 50 paise only while this letter was given for start of sale of pouches on higher price only. However, the language of the letter dated 07.10.2002 does not suggest than it is clearly admitted therein that a new product in name of "Safal" is being introduced to the market. This was not meant for permission mere for change of size or the price of the pouch. Interpretation put to the letter by the courts below cannot said to be incorrect. Thus, in my considered opinion, no case is made out to allow this appeal. Hence, the appeal is dismissed. However, the learned trial court is directed to decide the suit expeditiously within six months from the date of receipt of this order. Parties shall remain present before the court below on 05.08.2004. Record of the trial court be sent back to that court immediately.