Ramuram Choudhary vs Jagdamba Plaster Industries

Pratap Krishna Lohra, J.—By this appeal, appellant has challenged the impugned order dated 4th of February, 2014 passed by the learned Additional District and Sessions Judge No. 4, Bikaner, whereby learned Court below has declined the prayer of temporary injunction to the appellant-plaintiff in a suit for perpetual injunction.

Precisely, the appellant has averred, in the plaint, that it is manufacturer of plaster of paris, zypsm powder and allied products since 2011 and is having a registered trademark for its products ''HITECH''. It is pleaded, in the plaint, that the respondent-defendant is also a manufacturer of the same products with trade mark ''I-TEK'' and by using that trade mark, respondent-defendant is misleading the respective consumers to sell its products by projecting these products to be of the trademark of appellant by taking advantage of simily in trade marks.

Alleging violation of the provisions of the Trade Marks Act, 1999 the appellant has prayed for perpetual injunction in the suit. Along with the suit, an application is also filed for temporary injunction to restrain the respondent from using trade mark ''HITECH''.

The application for temporary injunction is contested by the respondent and the learned Court below, on appreciation of materials available on record, found that the appellant has failed to prove prima facie case in its favour. That apart, the learned Court below has also recorded a definite finding that appellant-plaintiff has failed to establish other ingredients i.e. balance of convenience and irreparable loss for grant of temporary injunction.

Matter is pending before this Court since April, 2014. Since August, 2014, nobody is appearing on behalf of the appellant to pursue this appeal. Today also, nobody is present to plead the cause of the appellant. In that background, I have considered the impugned order passed by the learned Court below threadbare.

Upon perusal of the impugned order, it emerges out that the learned Court below, while examining case prima facie, has thrashed out the matter in its entirety and has found that trademark of the appellant is quite different from the trademark of the respondent. With these observations, the learned Court below has recorded a finding that the apprehension of the appellant that respondent is misusing its trademark is hypothetical and there is no semblance of proof that respondent has intended to create confusion in the minds of the respective consumers.

That apart, the learned Court below has also observed that by virtue of Section 41 of the Specific Relief Act, 1963, the appellant can avail equally efficacious remedy under the Trade Marks Act, 1999 and as such it is not a case worth consideration by the Court. Finally, the learned Court below has recorded a definite finding that there is no prima facie case in favour of the appellant. The other ingredients were also examined by the learned Court below for declining relief of temporary injunction

After considering the matter, in its entirety, in my opinion, the learned Court below has exercised its discretion judiciously and there is no question of arbitrary or capricious exercise of jurisdiction by the Court below in refusing the prayer of temporary injunction.

It is trite that granting or refusing temporary injunction is the prerogative of the Court of first instance and normally the appellate Court should be slow to interfere with the discretionary order passed by the trial Court until and unless it is found that the Court below has not acted in adherence of prescribed cannons of justice. No such case is made out in the instant matter. Therefore, I am not inclined to interfere with the impugned order.

Resultantly, appeal fails and same is, accordingly, dismissed.