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Judgment
Srinivasan, J.—This appeal is by the defendant against whom an order of injunction has been passed by the Second Additional District
Judge of Salem restraining him from producing and passing off spurious goods of liquid blue under the trade name ''Regal'' or any other name
similar to that of the plaintiffs trade name ''Regaul'' till the disposal of the suit.
The short facts are; The respondent herein commenced manufacturing ultra marine blue in powder form in 1959. He coined a trade name for his
product as ''Regular popularly pronounced as ''Regal'' His product became popular and enjoyed a special market and is in high demand from
customers and public. He has been widely advertising his products in various dailies from time to time. He secured a registration of his label with
the trade name of ''REGAUI ( in Tamil) under the Copyright Act with copyright numbers A.38239/82 and 382340/82. In 1983, the plaintiff
developed a liquid ultra blue, after research and series of tests utilising this experience in the line. The turnover in 1983-84 was Rs. 45,930-43P.
and it increased to Rs. 6,37,454-46 in 1987-88 from March upto October. There are also enquiries for the export of liquid ultra blue to foreign
countries. The plaintiff has already secured the allotment of Code No. M.S.002321 for the export of the ''Regaul'' from Reserve Bank of India. He
has resorted to advertisement through Commercial Broadcasting Service of All India Radio and through visuals by Doordarshan Commercial
Services in television. The plaintiffs''s ''Regaul'' liquid ultra blue is in great demand. The plaintiff has already applied for registration of his trade
name ''Regaul'' under the Trade and Merchandise Marks Act and under the Copyright Act. The defendant had started to sell liquid blue quite
recently adopting the plaintiffs renowned trade name ''Regaul'' giving the spelling as ''Regal'' with the same phonetic effect. Under the guise of
distributor of liquid blue under the name of ''Regal'', the defendant issued an advertisement on 19-10-1987 calling for enquiries and salesmanship
to distribute the same in the market. The defendant is surreptitiously passing off his product under the deceptive name of ''Regal'' to make an illegal
gain to the detriment of the plaintiffs product ''Regaul'' and exploit the reputation and popularity and market developed by the plaintiff. The
similarity in the name is bound to cause confusion among the purchasers. The plaintiff has already received enquiries whether the product
advertised by the defendant at Salem is the one manufactured by the plaintiff. Not only the market retailers but also the public are misled by the use
of the plaintiffs renowned trade name by the defendant of their product. As the defendant is creating confusion in the market, the plaintiff is suffering
loss not only monetarily but also by the abuse of their reputation in the market. The defendant has no right to infringe the renowned and established
trade name. The plaintiff estimates the damages at not less than Rs.1,00,000 but restricts his claim for damages at Rs. 10,000. The plaintiff prays
for a permanent injunction restraining the defendant, his partisan partner, distributors, agents, servants, staff or any person claiming or acting along
with him from producing and passing off spurious goods of liquid blue under the trade name of ''REGAL'' or any other name similar to plaintiffs
established trade name of ''Regaul either on sight or phonetically or copy or adopt the same in any manner. With the aforesaid allegations, the
plaintiffs came to Court.
The plaintiff applied for an injunction till the disposal of the suit. The affidavit filed in support of the application repeated most of the averments in
the plaint.
The trial court granted an interim injuction and ordered notice. On receipt of the notice, the defendant filed a counter statement with the
following averments. The allegations made in the affidavit of the plaintiff are not admitted. The suit is not maintainable as the trade mark of the
plaintiff is not registered. The defendant is not producing ''Regal liquid blue'' and it is manufactured by Suraaj Agencies, Bhairnatham, Harur Taluk,
Dharmapuri District. Being aware of the same, the plaintiff has filed the suit with ulterior motive in the Court at Salem. The defendant is only a
distributor of Suraaj Regal Perfumed Liquid Blue product. The court has no territorial jurisdiction to deal with the matter. The averment that the
trade name ''REGAL'' is deceptively similar to ''REGAUL''is deliberate falsehood. The averments relating to the plaintiffs research and
development are all denied. The product of M/s. Suraaj Agencies labelled as ''SURAAJ REGAL'' perfumed ''LIQUID BLUE'' is distinctly
different from the shape of the plastic bottle, colour scheme of the label, size of the label, the letters written on it, the writings thereon etc., from that
of the labels of ''REGAUL LIQUID ULTRA BLUE''. The lable of REGAL liquid blue covers only 1/3 around the bottle, whereas the petitioner''s
lable completely goes around the bottle. The name SURAAJ REGAL is in white letters in blue colour background and the words ''perfumed'' in
red letters in the white background with three figures of the Blue Drops to indicate that it is liquid blue. The manufacturer''s name is written in red
letters in the white background and with thin red border line. On the other hand, the petitioner''s ''REGAUL'' is in red letters in violet colour
background and below the name RE-GAUL, there is the writing ''LIQUID ULTRA BLUE'' in white letters in the violet colour background.
Around these, there is a design of a garland like picture in white colour. This garland and violet colour background is in dark red colour
background with yellow letters in Tamil as then phone number in small white letters and then in Tamil Below this, the petitioner''s name is an yellow
letters in black background. There is a round by the side of the garland in yellow colour with the wording ''Sita'' in violet colour background. The
instructions are printed in black letters in yellow background and with a picture of a white spoon with letters ''FREE''. Even in the plastic bottle
itself, the name REGAUL BLUE are moulded with capacity of the bottle which is also moulded. By looking at the SURAAJ REGAL liquid bottle,
no unwary purchaser is liable to be misled as the product of the petitioner. There are no similarities between the two products either in the shape,
labels, writings, colour scheme etc., The design of the labels are entirely different. ''REGAUL'' and ''SURAJ REGAL'' are not deceptively similar
or likely to deceive or cause confusion amongst the purchasers of these goods bearing these marks. There will be no confusion in the market. The
product sold by the defendant is being sold for the past 16 months and more. In the market there are other liquid blue products being sold under
the trade names of TOWER REGAL'', ''SUPER REGAL'' and ''NEW REGAL'' and they are freely sold in open market. The petitioner has no
right to question the sale of SURAJ REGAL. The demands made by the petitioner are untenable and he has no right to stop the defendant from
doing his legitimate trade. The balance of convenience is in favour of the defendant.
The plaintiff filed as many as 31 documents in support of his claim and the defendant filed two documents being the labels pertaining to
SURAAJ REGAL perfumed liquid blue and the latest REGAUL liquid ultra blue. No oral evidence was let in by either party. The trial court held
that the addition of the word ''SURAAJ'' by the side of the word REGAL is not sufficient to distinguish the goods of the defendant from those of
the plaintiff with the trade name REGAUL, though according to the learned Judge, there are differences in the colour scheme and the size of the
labels and the letters written on the lables marked as Exs.B-1 and B-2. The learned Judge concluded that if the question is approached on the
point of view of a man of average intelligence and imperfect recollection, the two trade names would be confused for one another. While the
plaintiffs trade name REGAUL liquid blue is being used from 1983, the defendant''s trade name is being used for the last 16 months only. In these
circumstances, the learned Judge held that the plaintiff has made out a prima facie case that the defendant was passing off his products under the
deceptive name of REGAL to the detriment of the products of the plaintiff under the trade name REGAUL. On the question of balance of
convenience, the learned Judge held that the plaintiff had acquired reputation in the market for the trade name REGAUL from 1983 onwards and
that ExA-21, a letter written by a customer to the plaintiff, proved that the goods sold by the defendant were causing confusion and the balance of
convenience was in favour of the plaintiff. Consequently, the learned Judge granted injunction as prayed for by the plaintiff till the disposal of the
suit.
In this appeal learned Counsel for the appellant contended that the action being one for passing off, the burden is on the plaintiff to prove that the
defendant is selling his goods as and for the plaintiffs goods and that there was no evidence to that effect. Secondly it was urged that as found by
the learned Judge, there were differences in the colour scheme and the size of the labels and the letters written on the labels and, therefore, the
goods of the defendant should not be confused for those of the plaintiff. Thirdly, it was contended that the question of balance of convenience had
not been properly considered by the learned District Judge. Learned Counsel cited in his support the following passage in V.D. Kulshreshtha''s, the
Trade and Merchandise Marks Act, 1958, Second Edition, page 282.
In Finn Gaylord v. Kwality Restaurant (1962) C.L.J. 517 interim injunction allowed by the trial court was set aside and the defendant was put on
terms. In that case, the defendant had already carried on his business for about 10 months before the plaintiff prayed for interim injunction and in
view of this circumstance, the balance of convenience was not to stop the defendant''s business but to put him on terms.
Per contra, learned Counsel for the plaintiff/ respondent contended that the name REGAL has been dishonestly chosen for the products sold by
the defendant getting it from the word REGAUL used by the plaintiff ever since 1959. Learned Counsel submitted that though the trade name
REGAUL was being used by the plaintiff with reference to ultra marine blue in powder form since 1959, he continued the same name with
reference to the liquid ultra blue developed by him after research and series of tests in 1983. According to learned Counsel, after seeing the rapid
growth of the plaintiff in the market and the practical monopoly thereof by the plaintiffs products, the defendant had scrumptiously introduced the
name REGAL for his goods. Learned Counsel submitted that the Court below has referred to a number of decisions of the Supreme Court and the
High Courts and correctly understood the principles laid down therein with regard to the law of passing off. Learned Counsel for the respondent
placed reliance on the following decisions; K.R. Chinnikrishna Chetty trading as Ragha and Company Vs. K. Venkatesa Mudaliar and K.
Krishnamurthy Mudaliar trading as Ambal and Company and Another, ; K.R. Chinna Krishna Chettiar Vs. Shri Ambal and Co., Madras and
Another, ; Ruston and Hornsby Ltd. Vs. The Zamindara Engineering Co., ; Corn Products Refining Co. Vs. Shangrila Food Products Ltd., ; N.
Arumugam Pillai Vs. K.S. Syed Abbas and Another, ; Aravind Laboratories v. V. Annamalai Chettiar 93 L.W. 685; S.M. Syed Haji Abdul
Rahiman and Co., Madras Vs. C.H. Kizar Mohamed and Co., Madras, ; Dr. Ganga Prashad Gupta & Sons v. S.C. Gudimani AIR 1986 Delhi.
329 and Hindustan Radiators Co. v. Hindustan Radiators Ltd. AIR 1987 Delhi. 355.
After the conclusion of the arguments, I thought it would be better if the matter is not decided on merits and if some sort of interim arrangement
could be made till the disposal of the suit, a direction can be given to the trial court to dispose of the suit at an early date. With that view, I
suggested to counsel on both sides that the defendant could confine the sale of his products to two districts viz., Salem and Dharmapuri and file
statements of accounts periodically in the trial Court which could safeguard the interests of the plaintiff. I had also suggested that the defendant
could sell the products bearing the name SURAAJ REGAL with an express statement on the label that the goods had no connection with the
plaintiff, till the disposal of the suit. While learned Counsel for the defendant expressed his client''s willingness to abide by the above conditions if
imposed by the Court, learned Counsel for the plaintiff did not agree to the same. He contended that such conditions would not help in this country
in, which there is a large percentage of illiteracy.
The only basis on which the plaintiff seeks his relief in the suit is that the defendant is passing off goods of ''liquid blue'' under the trade name of
REGAL as and for those of the plaintiff. As the plaintiff trade mark is not registered, there is no question of infringement of trade mark. The law of
passing off is based on the principle that unfair competition is calculated to destroy honest business and should not be allowed. The object of the
law is to restrain commercial piracy. No person can misrepresent that his goods and his business are the same as the goods and business of
another. Lord Chancellor Halsbury stated the proposition in Yorkshire Relish case (Powell v. Birminghan Vinagan Browery Co. Ltd. (1987) 14
R.P.C. 720 thus;
...The proposition of law is one which, I think, has been accepted by the highest judicial authority, and acted upon for a great number of years. It is
that of Lord Justice Turner, who says in terms; No man can have any right to represent his goods as the goods of another person. In an application
of this kind, it must be made out that the Defendant is selling his own goods as the goods of another''.... The most obvious way in which a man
would be infringing the rule laid down by Lord Justice Turner is if he were to say in terms, ""These are the goods manufactured by'' a rival trade
man; and it seems to be assumed that, unless he says something equivalent to that, no actions will lie. It appears to me that that is an entire delusion.
By the course of trade, by the existence and technology of trade, by the mode in which things are sold, a man may utter that same preposition, but
in different words, and without using the ""name of the rival tradesman at all. A familiar example, of course, is when, without using any name, by the
identity of the form of the bottle or the form of the label, or the nature of the thing sold in the package, he is making the statement not in express
words, but on one of these different forms in which the statement can be made by something that he knows will be so understood by the public. In
each case it comes to be a question whether or not there is the statement made; and if the statement is made, there can be no doubt of the legal
conclusion that he must be restrained from representing that the goods that he made are the goods of the rival tradesman.
In Spalding v. Carnage Ltd. (1915) 32 R.P.C. 273, Lord Parker enunciated the law thus:
This principle is stated by Lord Justice Turner in Burgress v. Burgress L.R. 14C.D. 748 and by Lord Halsbury in Reddaway v. Banham L.R.
(1906) A.C. 204, in the preposition that nobody has any right to represent his goods as the goods of somebody else. It is also sometimes stated in
the proposition that nobody has the right to pass off his goods as ""goods of somebody else. I prefer the former statement, for whatever doubts
may be suggested in the earlier authorities, it has long been settled that actual passing of a defendant''s goods for the plaintiffs need not be proved
as a condition precedent to relief in Equity either by way of an injunction or of an inquiry as to profits or damages (Edelspen v. Edelsten 1 De.GJ.
& S. 185 and Iron-Ox Remedy Company Ltd. v. Co-operative Wholesale Society Ltd. 24 R.P.C. 425). Nor need the representation be
fraudulently made. It is enough that it has in fact been made, whether fraudulently or otherwise, and that damages may probably ensue"". The noble
Lord proceeded to say: ""The basis of a passing off action being a false representation by the defendant, it must be proved in each case as a fact
that the false representation was made. It may, of course, have been made in express words, but cases of express misrepresentation of this sort are
rare. The more common case is where the representation is implied in the use of limitation of a mark, trade name or get-up with which the goods of
another are associated in the minds of the public, or of a particular class of the public. In such cases, ""the point to be decided is whether, having
regard to all the circumstances of the case, the use by the defendant in connection with the goods of the mark, name, or get-up in question
impliedly represents such goods to be the goods of the plaintiff, or the goods of the plaintiff of a particular class or quality, or as it is sometimes put,
whether the defendant''s use of such mark, name, or get-up is calculated to deceive. It would, however, be impossible to enumerate or classify all
the possible ways in which a man may make the false representation relied on.
Thus, it is not necessary for making out a case of passing off to prove that there was an express representation by the defendant that his goods
were those of the plaintiff. The representation could be implied from the use of the trade name which is associated in the minds of the public with
the goods of the plaintiff. The plaintiff has produced documentary evidence to prove that he has been using the trade name regularly from 1959.
The earliest document produced by him is dated 29.9.1962 marked as ExA.1. It is an assessment order issued by the Commercial Tax
Department. The plaintiff has produced paper publications of the years 1976, 1977,1978, 1981 and 1983. The plaintiff has also produced
documents to show that he has been advertising through All India Radio and the Television. The evidence produced by the plaintiff is sufficient to
show that the plaintiff has been using the trade man REGAUL for several years prior to the filing of the suit. There is no doubt that the word
REGAL is the same as the word REGAUL by the plaintiff with only a difference in the spelling in English while phonetically there is no difference.
When the same name is being used by the defendant, who has admittedly entered the market subsequent to the plaintiff, the difference in the size of
the label and the colour scheme and the size of the container will not alter the situation. Anybody who is very familiar with the plaintiff''s goods as
REGAUL LIQUID BLUE would immediately think that the other product bearing the name REGAL is also a product of the plaintiff in different
containers. Any man of average intelligence with imperfect recollection would mistake the goods sold by the defendant as the goods of the plaintiff.
Thus, a prima facie case has been made out by the plaintiff in these proceedings.
Just because the manufacturer''s name ''SURAAJ'' is printed above the name REGAL, it will not make a difference. As pointed out by learned
Counsel for the respondent, it is quite common in this country to send illiterate servants and servant-maids to buy goods of this type. They will be
instructed to get ""RE-GAUL LIQUID BLUE"" and they might buy actually ""SURAAJ REGAL LIQUID BLUE"" thinking that they are carrying out
the instructions of their masters. Thus, there entering a confusion in the market is more probable.
In K.R.C. Chetty v. K.V. Mudaliar AIR 1974 Mad. 7, a Division Bench of this Court held that the trade name ''SRI ANDAL'' is deceptively
similar to the existing legend ''SRI AMBAL'' and addition ""of word ''RADHA'' to it will not make any difference. In K.R. Chinna Krishna Chettiar
Vs. Shri Ambal and Co., Madras and Another, , the Supreme Court held that the resemblance between the two marks must be considered with
references to the ear as well as the eye and the colour comparison is not the decisive test. It was further held that if there is a close affinity of sound
in the ''AMBAL'' and ''ANDAL'', even if there is no visual resemblance, there would be a case of deceptive similarity. In Ruston & Homby Ltd. v.
Zamindara Engineering Co. AIR 1970 S.C. 1949, the defendant was prevented from using the name RUSTAM INDIA as it was deceptively
similar to the plaintiffs trade name RUSTON. In that case, the Supreme Court pointed out that the test as to likelihood of confusion or deception
arising from similarity of marks is the same both in infringement and passing-off-actions. In Corn Products Refining Co. Vs. Shangrila Food
Products Ltd., , the trade name ''GLUVITA'' was not allowed to be used as it was deceptively similar to the trade name GLUCOVITA. In N.
Arumugam Pillai Vs. K.S. Syed Abbas and Another, , the name THANGABASBAM'' and the name ''THAN-GAPAVUN'' were found to be
deceptively similar with reference to tobacco. In Shah Lal v. Parley Products AIR 1967 Mad. 117, the defendant''s trade name ''PEARL'' was
held to be deceptively similar to the plaintiff TARLE''. Again ''in Aravind Laboratories v. Annamalai Chettiar 93 L.W. 685, Eyetex and Eyesol
were held to be deceptively similar. In Dr. Ganga Prashad Gupta & Sons v. S.C. Gudimani AIR 1986 Del. 329, it was held that the trader
acquires a right by prior user.
In S.M. Syed Haji Abdul Rahiman and Co., Madras Vs. C.H. Kizar Mohamed and Co., Madras, , a Division Bench of this Court observed
that where in the plaint it was unequivocally stated that the user by the defendants with the label closely resembling the label of the plaintiffs has the
effect of passing off the defendant''s goods as the goods manufactured by the plaintiffs, it is not necessary that there should be actual evidence that
the similarity had deceived the buyers. It was pointed out in that case that when a plaintiff comes to court expeditiously before any perceptible loss
has been sustained it will not be possible to adduce evidence of actual deception and that it would be for the Court to find out if an ordinary buyer
would or would not be taken in by the close similarity between the trade marks adopted by the two contesting parties. In that case, the defendants
contended that they had been using the label which closely resembled that of the plaintiff for a very long time. The Bench observed that if the
defendants had been using a similar label for a long time, they would have taken proceedings for preventing the plaintiff from using the label and the
very fact that they never made any such complaint certainly inclines one to accept the version of the plaintiff. In the present case, there is no dispute
that the user of the word REGAUL by the plaintiffs was much earlier than the user of the word REGAL by the defendant. Even according to the
defendant, the name REGAL is being used only for about 16 months prior to suit. But, there is absolutely no evidence to prove the same. When I
put a specific question to learned Counsel for the appellant as to why no evidence had been produced to prove the user of the name REGAL for
16 months prior to suit, the learned Counsel for the appellant answered by saying that the manufacturer not having been made a party to the suit,
the defendant was not in a position to produce evidence relating to the same. This is certainly not an explanation which can be accepted. In the
counter statement filed by the appellant it is stated in paragraph 12 that the product is being sold for the past 16 months and more. The averment is
quite vague. The appellant does not make it clear whether he had been selling such goods for sixteen months or the manufacturer commenced the
sales sixteen months back. Nor has the appellant chosen to mention any sale figures. It was the duty of the defendant to have produced evidence in
support of his contention in order to establish that the balance of convenience is in his favour. On the other hand, the only evidence produced by
the defendant consists of two labels. Obviously, the defendant is relying upon the differences in the size, colour scheme and get up of the labels.
The plaintiff also produced a letter marked as Ex.A.21 from one of his customers which proves that the product sold by the defendant is causing
confusion in the market. The conclusion of the learned trial Judge that the plaintiff has made out a prima facie case that the goods sold by the
defendant are likely to cause j confusion and deception among the purchasers is correct.
Turning to the question of balance of convenience, it is no doubt that there shall be no injunction if the defendant has already been doing
business for certain period. In the present case, there is no evidence that the goods bearing the name SURAAJ REGAL were being sold in the
market for 16 months as alleged by the defendant. The advertisement issued by the defendant was published on 19.10.1987 and marked as
ExA.20. The plaintiff has come forward with the suit immediately thereafter in November, 1987. There has been no delay on the part of the
plaintiff. Hence, the passage in V.D. Kulshreshtha''s Commentaries on Trade and Merchandise Marks Act, 1958, Second Edition, relied on by
learned Counsel for the appellant will not help him in this case. Nor does the decision of the Allahabad High Court in Victory Transport Co. Pvt.
Ltd., Ghaziabad Vs. The District Judge, Ghaziabad and Others, cited by him as the appellant has failed to prove that the goods bearing the name
SURAAJ REGAL are already sold in the market for quite sometime.
The governing principle in matters of this kind has been laid down by the House of Lords in American Cyanamid Co. v. Ethicon Ltd. 1975
A.C. 396. Lord Diplock has stated the proposition of law thus:
My Lords, when an application for an interlocutory injunction to restrain a defendant from doing acts alleged to be in violation of the plaintiffs legal
right is made upon contested facts, the decision whether or not to grant an interlocutory injunction has to be taken at a time when ex hypothesi the
existence of the right or the violation of it, or both, is uncertain and will remain uncertain until final judgment is given in the action. It was to mitigate
the risk of injustice to the plaintiff during the period before that uncertainty could be resolved that the practice arose of granting him relief by way of
interlocutory injunction; but since the middle of the 19th century this has been made subject to his undertaking to pay damages to the defendant for
any loss sustained by reason of the injunction if it should be held at the trial that the plaintiff had not been entitled to restrain the defendant from
doing what he was threatening to do. 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; but
the plaintiffs need for such protection must be weighed against injury resulting from his having been prevented from exercising his own legal rights
for which he could not be adequately compensated under the plaintiffs undertaking in damages if the uncertainty were resolved in the defendant''s
favour at the trial. The court must weigh one need against another and determine where ""the balance of convenience"" lies.
Again, the Law Lord observed as follows:
...If damages in the measure recoverable at common law would be adequate remedy and the defendant would be in a financial position to pay
them, no interlocutory injunction should normally be granted, ""however strong the plaintiffs claim appeared to be at that stage. If, on the other hand,
damages would not provide an adequate remedy for the plaintiff in the event of his succeeding at the trial, the court should then consider whether
on the contrary hypothesis that the defendant were to succeed at the trial in establishing his right to do that which was sought to be enjoined, he
would be adequately compensated under the plaintiffs undertaking as to damages for the loss he would have sustained by being prevented from
doing so between the time of the application and the time of the trial. If damages in the measure recoverable under such an undertaking would be
an adequate remedy and the plaintiff would be in a financial position to pay them, there would be no reason upon this ground to refuse an
interlocutory injunction.
In the present case, the defendant claims to be only a selling agent of the manufacturer of the product bearing the trade name SURAAJ REGAL.
Nowhere has he stated that he is selling no other goods excepting SURAAJ REGAL PERFUMED LIQUID BLUE. On the question whether the
appellant will be in a position to compensate the plaintiff with damages in the event of the plaintiffs success in the suit ultimately, the affidavit filed by
the appellant in C.M.P. No. 2117 of 1988 which is an application for suspending the operation of the order of the lower court till the disposal of
the appeal discloses that the appellant will not be in a position to compensate the plaintiff. In paragraph 4 of the said affidavit, the appellant had
stated as follows:
... I respectfully submit that we are small trader living with the meagre earning from the above business.
This shows that if the interlocutory injunction prayed for by the plaintiff is not granted and if he succeeds ultimately in the suit, he will be put to
irreparable prejudice as the defendant will not be , in a position to compensate him in terms of damages.
In Hindustan Radiators Co. Vs. Hindustan Radiators Ltd., , the principles relating to grant of interlocutory injunctions against passing off and
using trade style and trade marks had been discussed at length by Mahesh Chandra, J. It will be useful to refer to the following statement of law
found in that judgment;
Once a prima facie case is established, balance of convenience would follow. Even otherwise the question of balance of convenience would arise
only when the parties are practically on the same level and as such their rights are about equal. However, where, as in the case in hand, the plaintiff
s position is infinitely superior to that of the defendant who intends to use the trade mark and trading style of the plaintiff and consequently, there is
no difficulty to hold that balance of convenience lies in the grant of ad interim junction as in the instant case inasmuch as because of the plaintiff is
not marginal but a clear cut case and consequently, balance of convenience is in favour of grant of ad interim injunction prayed for.
Coming to the question of irreparable injury, it needs to be mentioned here that where the plaintiff has established a prima facie case and the
balance of convenience is in favour of grant of ad interim injunction the Court can assume that irreparable injury would necessarily follow if an
interim injunction prayed for is not granted. The irreparable injury in the instant case would be likely confusion that may be caused if the defendant
is allowed to use the mark which is prima facie mark of the plaintiff-petitioner.
Even otherwise it will take quite some time before this suit is decided and if the respondent is not restrained by means of an ad interim injunction
they would start manufacturing their radiators under some and similar name as that of the plaintiff-petitioner and would start marking their goods
with the offending mark and in course of time it might ultimately be held that that defendant respondent had become common or concurrent user of
the said trade mark. Thus, the likelihood of confusion being caused and likelihood of the plea of common or concurrent user being raised at a later
stage would be the irreparable injury to the plaintiff-petitioner. Even otherwise injunction would not be refused unless the supposed consequences
of deception are remote, speculative and improbable. Once the plaintiff has established that he has got a prima facie case in respect of same and
similar goods, he would be prime facie entitled to ad interim injunction and heavy burden would lie upon the defendant to prove that the plaintiff
should not be granted ad interim injunction. The plaintiff, in these circumstances, is entitled to the ad interim injunction prayed for.
It is well settled that grant of injunction is a discretionary remedy. When the trial court has exercised its discretion in granting injunction, the
appellate court should not normally interfere with the same. It is not for the appellate court to substitute its discretion for that of the trial court. If the
discretion has been exercised by the trial court reasonably and in a judicial manner, the fact that the appellate court would have taken a different
view will not justify interference with the order of the trial court. The Supreme Court has in The Printers (Mysore) Private Ltd. Vs. Pothan Joseph,
observed thus:
...As is often said, it is ordinarily not open to the appellate court to substitute its own exercise of discretion for that of the trial judge; but if it
appears to the appellate court that in exercising its discretion the trial court has acted unreasonably or capriciously or has ignored relevant facts and
has adopted an unjudicial approach then it would certainly be open to the appellate court and in many cases it may be its duty - to interfere with
the trial court''s exercise of discretion. In cases falling under this class the exercise of discretion by the trial court is in law wrongful and ""improper
and that would certainly justify and call for interference from the appellate court. These principles are well established; but, as has been observed
by Viscount Simon, L.C. in Chales Ostenten & Co. v. Johnston 1942 A.C. 130"" the law as to the reversal by a court of appeal of an order made
by a judge below in the exercise of his discretion is well established, and any difficulty that arises is due only to the application of well settled
principles in an individual case.
In Garden Cottage Ltd. v. Milk Marketing Board (1984) 1 A.C. 130, Lord Diplock has expressed a similar view observing that an appellate
Court including the House of Lords must defer to the trial Judge''s exercise of his discretion and must not interfere with it merely upon the ground
that the members of the appellate court would have exercised the discretion differently. The dictum of the Law Lord is in the following items:
... The function of an appellate court is initially that of review only. It is entitled to exercise an original discretion of its own only when it has come to
the conclusion that the judge''s exercise of his discretion was based on some misunderstanding of the law or of the evidence before him, or upon an
inference that particular facts existed or did not exist, which although it was one that might legitimately have been drawn upon the evidence that was
before the judge, can be demonstrated to be wrong by further evidence that has become available by the time of the appeal; or upon the ground
that there has been a change of circumstance after the judge made his order that would have justified his according to an application to vary it.
Since reasons given by judges for granting or refusing interlocutory injunctions may sometimes by sketchy, there may also be occasional cases
where even though no erroneous assumption of law or fact can be identified the judge''s decision to grant or refuse the injunction is so abhorrent
that it must be set aside upon the ground that no reasonable judge regardful of his duty to act judicially could have reached it. It is only if and after
the appellate court has reached the conclusion that the judge''s exercise of his discretion must be set aside for one or other of these reasons, that it
becomes entitled to exercise an original discretion of its own.
I do not find any error in the approach of the learned Second Additional District Judge in granting an injunction in favour of the plaintiff in this
case. In the circumstances, the appeal has to fail and it is dismissed; but there will be no order as to costs. The Second Additional District Judge is
directed to dispose of the suit C.S.No. 384 of 1987 on his file on or before 31.12.1988 without in any manner being influenced by the
observations made in this judgment or in his order in IA.No. 550 of 1987.