G.P Shivaprakash, J.:— This appeal is presented by the defendant against the order dated 17-9-1991 on I.A.I filed by the respondent-plaintiff under Order 39 Rules 1 and 2 C.P.C, making absolute the ex parte order of temporary injunction dated 5-3-1991 granted in favour of the plaintiff restraining the defendant from “marketing its wheat products such as Rava, Soji, Atta and Maida under the trade mark “Double Swastik” in the States of Karnataka, Kerala, Andhra Pradesh, Tamilnadu and Maharashtra till the disposal of the suit”.

2. In the course of this order the parties are referred to by their respective position in the trial Court. Original Suit No. 2 of 1991 on the file of the Principal District Judge at Dharwad was instituted by the plaintiff which is a partnership firm represented by one of its partners, namely, Ramachandrappa Narayanappa Kampli. It is stated in the plaint that the suit though filed on behalf of the firm “to avoid a technical defect”, the suit is filed individually also by Ramachandrappa Narayanappa Kampli who is one of the persons in whose favour the certificate of registration of trade mark has been issued under Section 23(2) of the Trade and Merchandise Marks Act, 1958 (hereinafter referred to as the Act) by the Registrar of Trade Marks. However, in the cause title to the plaint, the said Ramachandrappa Narayanappa Kampli is not shown as a plaintiff.

3. According to the plaint averments, the plaintiff-firm carries on business in the manufacture and sale of wheat products i.e, Rava, Soji, Atta and Maida and the said business his being carried on by the plaintiff for more than 20 years at the time of institution of the suit. It is stated in the plaint that the name of the plaintiff-firm was originally “Swastik Flour Mill” and subsequently, it was changed as “New Swastik Flour Mill” and the said change had been effected in all records including “the trade mark”. According to the plaintiff its products enjoy “high and unparallel” reputation because of its good quality. It is the case of the plaintiff that its products are sold under the registered trade mark “Swastik” which consists of a cross with arms of equal length, each arm having a continuation at right angle, and all four continuations turning the same way with the name “Swastik Flour Mill” written in a semi-circle above the Swastik mark and ‘Siraguppi’ written in straight line at the bottom of the Swastik mark. At the top of the Swastik Mark and over the letters, in semi-circle, Swastik Flour Mill', ‘Swastik’ is written in straight line. The said trade mark is imprinted in the certificate of registration of trade mark dt. 26-9-1975 issued by the Registrar of Trade Marks under Section 23(2) of the Act. The said certificate discloses that the trade mark bears number 308756 and the same has been registered in Part-A of the Register in the names of R.N Kampli, L.N Kampli, M.N Kampli, V.M Gujamagadi, F.S Hubbali and S.Y Anegundi trading as “Swastik Flour Mill, Siraguppi, Dist. Dharwar, in Class 30 under No. 308756 as of the date 26th September, 1975, in respect of Rava, Soji, Atta and Maida for sale in the States of Kerala, Andhra Pradesh, Karnataka, Tamilnadu and Maharashtra. The plaintiff claims that because of the good quality of its products it has acquired a reputation of its own and its goods are identified by the said trade mark by the purchasers. It is asserted in the plaint that the products of the plaintiff is sold in the States of Karnataka, Kerala, Andhra Pradesh, Tamilnadu and Maharashtra. The plaintiff has stated in the plaint that the aforesaid trade mark is being renewed from time to time and the same is still in force and therefore the plaintiff has acquired “a vested right, title arid interest” in the said trade mark.

4. According to the plaintiff, it came to know that the defendant, “has been illegally, unauthorisedly and fraudulently selling Rava of inferior quality by affixing very much deceptive similar trade mark having a similar design, similar colour, similar pictures, similar letters “SWASTIK”, the only difference being, that the trade mark of the defendant “consists of Double Swastik” i.e, two crosses.

5. The plaintiff had sent a notice on 8-12-1988 to the defendant calling upon the defendant to stop using the said trade mark. The defendant had sent a reply dt. 16-12-1988 which according to the plaintiff contains false and evasive contentions. However, it appears the plaintiff furnished the particulars sought for by the defendant in its letter dated 16-12-1988 under cover of its letter dt. 21-2-1989. The plaintiff asserts that the defendant has been selling Rava, Atta, Soji and Maida in the open market “fraudulently and illegally” using double Swastik marks. It is also stated in the plaint that a complaint had also been lodged with the police and since the police did not take any action the defendant continued in its illegal activities.

6. In the plaint it is stated that through its sister concern Ashok Trading Agencies, Hubli certain purchases were made from the defendant on 7-11-1990, 13-12-1990 and 1-1-1991. It is stated that the defendant had sent invoices for the sale of the said goods. It is also stated in the plaint that the plaintiff has collected copies of the said invoices from the said Ashoka Trading Agency, Hubli. According to the plaintiff, from the fact that the defendant has sold certain goods bearing the trade mark “double Swastik mark” to Ashok Trading Agency, Hubli it is established that the defendant has been fraudulently selling the goods similar to the one manufactured and sold by the plaintiff under the trade mark ‘Swastik’.

7. The plaintiff alleges that the defendant has been making wrongful gain by using a deceptive similar trade mark as that of the plaintiff and encashing the reputation earned by the plaintiff for its products bearing the trade mark ‘Swastik’ in view of the fact that the products manufactured by the plaintiff and the defendant are identical i.e, wheat products.

8. According to the plaintiff the conduct of the defendant in passing off its wheat products bearing a deceptively similar trade mark as that of the plaintiff has resulted in business loss to the plaintiff and the customers of the plaintiff are misled/confused as to the identity of the products of the plaintiff and the defendant, in view of the deceptively similar trade mark adopted by the defendant. According to the plaintiff, the defendant has commenced its business in wheat products in about the year 1988.

9. It is on the basis of the above pleadings, the plaintiff instituted the suit stating that it is carrying on business with trade mark “Swastik” having its manufacturing unit in Hubli Taluk. It is asserted that the trial Court in which the suit was instituted has got jurisdiction to entertain the suit.

10. I may notice here that regarding the jurisdiction of the Court, the plaintiff has stated thus at paragraph 11.

“That the plaintiff carries on its business in Shirguppi and Hubli. The principal place of the plaintiff manufacturing unit is at Hubli Taluk. The plaintiff came to know the illegal, deceptive and fraudulent acts in Hubli. Hence this Court has got jurisdiction to entertain this suit.”

11. The prayer in the suit reads as hereunder:

“The plaintiff prays that this Hon'ble Court be pleased to pass a decree:

(a) against the defendant restraining the defendant and persons claiming through it from manufacturing, selling and/or passing off the duplicate and fake RAVA, SOJI, ATTA and MAIDA infringing, offending or violating the plaintiff's Trade Mark Swastik along with its design either in single or double, get up, to the detriment and dissatisfaction of the plaintiff;

(b) award damages after ascertaining the same.”

12. The trial Court granted the ex parte order of temporary injunction on 5-3-1991. The defendant entered appearance and filed its objections to I.A.I In the statement of objections, inter alia, it is contended that the trial Court had no jurisdiction to entertain the suit in view of the fact that the defendant neither resides nor carries on trade and business at Hubli. On the question of jurisdiction the defendant has further stated thus:

“Defendant has no business place nor is there any agency or agent to sell the goods under the impugned trade mark in the areas covered by the jurisdiction of this Court. Injunctive relief cannot be granted against a person who is not a resident within the limits of this Court as it is a personal relief. There is no sale or commercial sale of the defendant's products in the area falling, under the jurisdiction of this Court, particularly under the trade mark ‘Ambika Food Products Double Swastik’. No products under the trade mark in question have been sold, advertised or offered for sale by the defendant at Hubli within the jurisdiction of this Hon'ble Court,”

13. From the statement of objections it is clear that at the outset the defendant Has taken up the plea of want of jurisdiction of the trial Court to consider the issues raised in the plaint. Besides, it is stated that the defendant has an established business of manufacturing Rava, Soji etc., since the year 1988 “and in order to distinguish their mark with that of others originated, invented and adopted a trade mark, “Double Swastik” with device of “Two Swastiks” prominently appearing in between the semicircular trading style “Ambika Food Products”, represented in a distinctive and artistic manner”. It is asserted that the trade mark of the defendant is quite distinct and it cannot be said to be either deceptively similar to that of the plaintiff visually or phonetically, and therefore the grievance of the plaintiff, is without any substance.

14. It is further stated in the objections that the case of the plaintiff that most of its customers are illiterate women folk, maid servants and that its goods are identified by the Swastik mark by the purchasers is false and there cannot be any confusion as to the identity of the products of the plaintiff and the defendant. It is further stated that as regards the similarity of the trade mark - one Swastik mark in the case of the plaintiff and two Swastik marks in the case of the defendant that they cannot be said to be deceptively similar and therefore, there is no possibility of the purchasers/customers being misled or getting confused as to the identity of the products to be purchased. The defendant in its objection statement has emphasised that the plaintiff carries on business in the name of Swastik Flour Mill whereas the defendant carries on business in the name of “Ambika Food Products” and therefore the products of both the plaintiff and defendant bear totally different names and clearly distinguishable.

15. Sri U.R.N Rao, learned Counsel for the appellant-defendant submitted as follows:

(1) That there is nothing on record to disclose that the defendant has made sale of goods under the impugned trade mark, within the jurisdiction of the trial Court to a distributor, wholesaler or retailer and that such a sale was on a commercial sale and that there is no averment that there was sale of wheat, Soji or Atta using the impugned mark. The learned Counsel contended that the documents relied upon by the plaintiff to establish sale of goods by the defendant within the jurisdiction of the trial Court disclose only sale of wheat husks.

(2) That the trade mark certificate is issued in favour of “Swastik Flour Mill” and not “New Swastik Flour Mill” which has instituted the suit and therefore it cannot be said that the plaintiff has derived any rights conferred by registration in terms of Section 28 of the Act.

16. The trial Court has in the order under appeal, relying upon the documents arid the affidavit has found that both plaintiff and defendant are manufacturers of wheat products - Rava, Atta, Maida, Soji etc., and their business activities are similar. After considering in detail whether the trade mark under which the defendant is selling its products is deceptively similar to that of the plaintiff, the trial Court has found that prima facie it appears to be so.

17. On the question of jurisdiction, the trial Court while referring to Section 105 of the Act, has noticed that the plaintiff is having its flour mill at Siraguppi in Hubli Taluk and that the plaintiff sells its products in the States of Karnataka, Kerala, Andhra Pradesh, Tamilnadu and Maharashtra. The trial Court has relied upon certain sales made by the defendant to Ashok Trading Agency, which is said to be a sister concern of the plaintiff under invoices dated 7-11-1990, 31-12-1990 and 1-1-1991. However, the trial Court has found that the plaintiff has not produced the said invoices along with the plaint.

18. It appears from the order under appeal, that it was contended before the trial Court on behalf of the defendant, that wheat was sold under the said invoices was “wheat husk” and riot wheat products such as Rava, Atta etc. Having so recorded the finding that the documents on which the plaintiffs rely upon are not produced, the trial Court has held thus. “Since the invoices are not produced, it cannot be said with certainty that what was sold under the invoices was wheat husk”. The trial Court has held since it is averred in the plaint that the defendant had made sale of its products under the impugned trade mark at Hubli, at this stage, it can be said that the cause of action has partly arisen within the jurisdiction of this Court.”

19. A copy of the plaint is produced in one of the Paper Books. I have gone through the entire plaint and I do not See any such averment made in the plaint. All that has been said on the question of jurisdiction is at paragraph 11 of the plaint. It reads thus:

“That the plaintiff carries on its business in Siraguppi and Hubli. The principal place of the plaintiff's manufacturing unit is at Hubli Taluk. The plaintiff came to know the illegal, deceptive and fraudulent acts in Hubli. Hence this Court has got jurisdiction to entertain the suit.”

From the above it cannot be said that the plaintiff has averred that the defendant has made sale of its products under the impugned trade mark at Hubli.

20. The “Xerox copies of the invoices” dated 7-11-1990, 31-12-1990 and 1-1-1991 are also found in one of the paper books which appears to have been produced by the defendant. The so called invoices of the aforesaid dates are in respect of wheat husk.

21. In one of the Paper Books there is a copy of the letter dated 20-11-1990 written by Ashok Trading Agencies addressed to the defendant. It reads thus:

“Dear Sir,

Received 200 bags wheat husk by lorry No. CNG-4151. Goods arrived on 9-11-1990. Sir, weighment of the above said goods is 9605 kg. But you have made the bill for 100 Qtl. Your weighment slip (Janata Weigh bridge) No. 19221 and your credit bill No. 8058.

So we have debited Rs. 734.70 ps. In your account.

This is for your kind information.

Thanking you,

Yours faithfully,

Partner.

(1) Weigh Slip;

(2) Credit Bill.”

22. Therefore, neither the averment in the plaint nor the documents relied upon by the plaintiff can form the basis to conclude that the defendant sold any of its wheat products i.e, Rava, Atta, Maida and Soji within the jurisdiction of the trial Court

23. In this context, the learned Counsel for the appellant relied upon a decision in Himachal Pradesh Horticulture Produce Marketing and Processing Corporation Ltd., Simla v. Mohan Meakin Breweries Limited, AIR 1981 Punjab and Haryana 117. In the said decision, it was held that in a suit for passing off or injunction on account of infringement of trade mark, the cause of action partly or wholly can arise in a given jurisdiction only if the defendant was proved to have directly made sale of goods under the impugned trade mark, within that jurisdiction, not to an individual consumer but to a distributor, wholesaler or retailer and that such a sale was on a commercial scale.

24. In the instant case, as already noticed, there was absolutely no material before the trial Court to show that within its jurisdiction the defendant had sold any Of its wheat products under the impugned trade mark. Even in the plaint there is no averment to that effect Therefore the trial Court could not have exercised its jurisdiction to grant the temporary injunction sought by the plaintiff.

25. Sri U.L Narayana Rao, learned Counsel appearing for the respondent-plaintiff, on the other hand, contended relying upon a decision of this Court in Cadila Laboratories (P) Ltd., Ahmedabad v. Kamath Atul & Co., AIR 1991 Karnataka 303 that the trial Court was fully justified, on the basis of the plaint averments and the documents produced by the plaintiff in granting the temporary injunction sought. In the aforesaid decision on which reliance was placed by the learned Counsel for the respondent-plaintiff, this Court after noticing the decision in AIR 1981 Punjab & Haryana 117 has distinguished the said decision in view of the fact that no objection was raised in the written statement by the defendant in respect of the averment in the plaint regarding the cause of action and the jurisdiction of the Court. In the instant case since there is no averment whatsoever that the defendant had sold its products under the impugned trade mark within the jurisdiction of the trial Court. On the other hand, the defendant in its statement of objections has clearly denied having sold any of its products within the jurisdiction of the trial Court and therefore, disputed its jurisdiction.

26. Even in the letter dated 8-12-1988 written by the plaintiff to the defendant, while taking exception to the use of the impugned trade mark by the defendant for sale of its products it is stated thus:

“We are very sorry to warn you that using our Trade Mark is an offence. If you do not stop the sale of Sooji in Andhra Pradesh by using our ‘Swastik’ Trade Marks, we have no other way but to take legal actions in way of civil and criminal ways”.

27. In the subsequent letter dated 21-2-1989 also there is no allegation by the plaintiff against the defendant that it is selling any of its wheat products under the impugned Trade Mark within the jurisdiction of the trial Court.

28. For the foregoing reasons, this appeal is allowed. The impugned order dated 17-9-1991 on LAI. in O.S 2/1991 on the file of the Ist Addl. District Judge, Dharwad (sitting at Hubli) is hereby set aside.