S. Ravi Kumar, J.

This appeal is preferred against order dated 28-3-2016 in I.A.No.1325 of 2015 in O.S.No.426 of 2015 on the file of XXV Additional Chief Judge, City Civil Court, Hyderabad.

2. Appellant herein is defendant and respondent herein is plaintiff and they are herein after referred to as arrayed in the suit for convenience.

3. Plaintiff filed the above suit seeking permanent injunction restraining defendant, its servants, agents, distributors or any one claiming through them from manufacturing, selling, advertising and offering for sale using the trade mark ‘Heera’ on the goods and spices of all kinds similar to the registered trade mark ‘Heera’ granted in favour of plaintiff. Plaintiff also prayed for mandatory injunction to direct defendant to surrender all these spices etc., bearing trade mark ‘Heera’ and other reliefs.

4. In the said suit, plaintiff filed I.A.No.1325 of 2015 for grant of temporary injunction to restrain defendant from using the trade mark ‘Heera’.

5. According to plaintiff, he is one of the partner of M/s. Ganga Container a partnership firm doing business of producing excellent quality of spices of all varieties including ginger and garlic under the trade mark ‘Heera’. According to plaintiff, the spices marketed by them under trade mark ‘Heera’ enjoy tremendous good will and reputation from the year 1997 and the plaintiff made substantial investment to advertise and popularise its goods in the market and ultimately, turnover of Rs.61,41,010/- in the year 1997-98 reached to Rs.6,76,80,000/- in the year 2014 and 2015. According to plaintiff, defendant has commenced marketing of spices including ginger and garlic paste under the label that is absolutely identical to that of plaintiff registered trade mark and thereby, committed infringement.

6. On the other hand, it is the contention of defendant that defendant is also a registered owner of trade mark ‘Heera’ by operation of law, therefore, one registered owner cannot proceed against another registered owner as per Section 28(3) of Trade Marks Act. (Herein after referred to as "the Act" for the sake of convenience) According to defendant, it is a manufacturer and distributor of ginger and garlic paste under the name ‘Heera’ since 2002 and application submitted by the defendant for registration was received ion 4-11-2009 and as no orders are passed, defendant filed W.P.No.17956 of 2015 where under direction was given to process the application and pass orders expeditiously and as the defendant is also a registered owner, plaintiff is not entitled for the interim relief of injunction.

7. These are the main contentions of both parties. Trial court on a consideration of Exs.P.1 to P.26 marked on behalf of plaintiff and Exs.R.1 to R.26 marked on behalf of defendant, held that prima facie case and balance of convenience are in favour of plaintiff and as the plaintiff was using the trade mark since 1997 granted injunction against the defendant restraining it from using the said trade mark. Aggrieved by the same, defendant preferred present appeal.

8. Heard both sides.

9. Both advocates, elaborately argued both on factual and legal aspects and the main contention of appellant is that appellant is also a registered trade mark owner by operation of law and as per Section 28(3) of the Act, suit against another registered owner is not maintainable, as such, the order granted by court below is not legal. The other contention of the appellant is that he is a prior user of the trade mark which he was using since 2002 whereas the plaintiff was using it only from 2008. The other contention of appellant is that even by principle of acquiescence, plaintiff is not entitled for injunction and the trial court without considering these objections simply carried away with the contentions of plaintiff that it is using trade mark since 1997 without there being any material and without production of any invoices, therefore, the order of trial court is liable to be set aside.