Sir John Beaumont.-

This is an appeal by special leave from a judgment and decree dated 19th June 1939, of the Supreme Court of the Island of Ceylon which reversed a judgment and decree dated 17th June 1938, of the District Court of Colombo. The suit out of which this appeal arises was brought on 11th November 1936, in the District Court of Colombo by T. P. Sokkalal Ram Sait (who is hereinafter called the plaintiff) against E. P. Kumaraval Nadar, who was defendant 1, his partners, the respondents 2-4 who were defendants 2-4, and respondent 5, who was defendant 5, and was the manager in Ceylon of the other defendants. The plaintiff died pending the appeal to His Majesty in Council; and the appellant, as administrator of his estate, has been brought on record as appellant. The said E. P. Kumaraval Nadar also died pending the appeal, and his widow and children have been substituted for him as respondent 1.

[2] By his plaint, the plaintiff alleged that he was the manufacturer of beedies (a small and cheap type of cigarette) and carried on business in Colombo; that in connection with such business he was the proprietor of a trademark consisting of the device of a portrait of the plaintiff in a turban surrounded by rays of light and other distinctive features, and that the trade-mark was registered in the Register of Trade-marks in Ceylon under No. 4919 in class 45 in respect of beedi on 15th June 1930; that the plaintiff was also the proprietor of a trade-mark consisting of the device of a circle containing the portrait of the plaintiff in a turban and that the said trademark was registered in the said Register of Trade-marks under No. 5929 in the said class on 26th September 1934; that the plaintiff had extensively used the said trade-marks on packets of beedies manufactured and sold by him since the years 1926 and 1934 respectively; that by reason of the said user the plaintiff's beedies marked with the said trade-mark and figures had become known to purchasers and intending purchasers as "Photo Mark beedies," "Ram Sait beedies" and "Sokkalal beedies," and that in the beedie-trade, "Photo Mark beedies," "Ram Sait beedies" and "Sokkalal beedies" meant the beedies made and sold by the plaintiff; that the defendants had infringed the plaintiff's said trade-marks and had advertised and sold at Colombo beedies not of the plaintiff's manufacture as "photomark beedies." The plaintiff claimed an injunction to restrain such infringement and passing-off.

[3] The defendants in their answers denied infringement and passing-off, and further pleaded that they had used the marks complained of by the plaintiff in connection with their trade in beedies from a date anterior to either the date of user or the date of registration of the marks Nos. 4919 and 5929 by the plaintiff.

[4] On 8th February 1937, the plaintiff with the leave of the Court amended his plaint by alleging user of the trade-mark No. 4919 from the year 1915 in place of the year 1926 and on 30th June 1937, the plaint was further amended by leave by substituting the year 1912 for the year 1915. In view of these amendments which put back from 1926 to 1912 the alleged date of the first user by the plaintiff of his trade-mark No. 4919, the defendants on 1st July 1937, obtained leave to amend their answer by praying that the first four defendants be declared entitled to have their trade-marks registered in the Register of Trade-marks and that the Registrar of Trade-marks be directed to register the same in the Register of Trade-marks. This amendment enabled the defendants to raise the issue of honest concurrent user, which will be dealt with later in this judgment.

[5] At the commencement of the trial, the position with regard to registration as found by the trial Judge, whose finding on this point has not been challenged, was as follows. The plaintiff had registered in Ceylon his trade-mark No. 4919 on 18th January 1930, and his trade-mark No. 5929 on 2nd March 1934. (These were in fact the