By this Appeal from Order, the appellant (original defendant) has impugned the order dated 8th June, 2016 passed by the learned District Judge 3, Malegaon allowing the application filed by the respondent (original plaintiff) i.e. Ex.5 in Trade Mark Suit No.01 of 2015 thereby restraining the defendant from manufacturing, trading, offering or dealing in his product Sanala Lime Plaster under the name of 'SUPER MOR CHHAP' which is deceptively and phonetically similar to that of the plaintiff till the decision of the suit. The learned trial judge however made it clear that the defendant would be at liberty to manufacture and sale the said product by using any other different trade mark. The parties described in this order are described as they were described in the proceedings before the learned trial judge. Some of the relevant facts for deciding this appeal are as under:-

2. The plaintiff is the owner of the and proprietor of the trade mark of 'MOR CHHAP' under the provisions of the Trade and Merchandise Act bearing Certificate No.205389 which is valid upto 24th April, 2015. It was the case of the plaintiff that the plaintiff has been carrying on an established business as manufactures of and/or dealers in plaster, lime, mortar, limestone, cement, wall putty, wall coating and water proofing material for almost three decades and has been doing the said business under the trade name as 'MOR CHHAP'. It is the case of the plaintiff that the plaintiff was the creator of the said trade mark and its artistic work. The artistic work consists of the word 'MOR CHHAP' from Devnagri script as one of its leading and essential feature of registered trade mark. Below the said words 'MOR CHHAP' there is a picture of peacock spreading the peacock feathers and below that in Devnagri script it was written in Gold as instant Niru (Sanla).

3. It was the case of the plaintiff that the plaintiff was using the said trade mark and the trade name since last more than 28 years prior to the date of filing the suit. The plaintiff had applied for registration of the said trade name and trade mark under class 19, and after following the due procedure the said trade name and trade mark has been registered in the name of the plaintiff. According to the plaintiff, the plaintiff is the first and original adopter of the said trade mark 'MOR CHHAP' with device of Mor (peacock) in respect of the said product and the plaintiff has spent extensive amount for advertising its goods in the market and also held many advertisement campaign for promoting his goods.

4. It is the case of the plaintiff that by virtue of long, continuous and extensive usage and wide publicity and quality of goods, the trade mark 'MOR CHHAP' has become very popular amongst the customers and in the trade and the goods marketed by the plaintiff under the said trade mark are well known for their intrinsic good quality and are well reputed in the market. The plaintiff is the exclusive and concurrent user of the said trade mark.

5. The defendant is also dealing in the same business as that of the plaintiff and has been marketing his product i.e. Sanla under the trade name 'SUPER MOR CHHAP'. According to the plaintiff, the said trade name 'SUPER MOR CHHAP' is deceptively and phonetically similar to that of the trade mark and trade name of the plaintiff. The defendant had also applied for registration of the said trade name and trade mark with the registration authority under clause 19. The plaintiff had raised an objection in respect of the registration of the said trade mark applied by the defendant. The defendant had thereafter abandoned the said application.

6. It was the case of the plaintiff that since the defendant had been adopting the impugned mark with the malafide, dishonest and mischievous intention of trading upon the goodwill and reputation accrued to the trade mark of the plaintiff 'MOR CHHAP' and to cheat the general public and/or to cause confusion in the course of trade, the plain