1. This plaintiffs appeal is directed against an order dated 8th December, 1978, refusing to grant temporary injunction in favour of the plaintiff and against the defendant

2. The suit, which was in relation to infringement of trade mark right, was for perpetual injunction against the defendant from using the trade mark. The plaintiff also prayed for grant of temporary injunction against the defendant.

The plaintiff is a manufacturer of various types of medicinal products having separate registered trade mark for each type and one which has given rise to the present cause is the alleged use by the defendant of the trade mark DRYL of which the appellant-plaintiff was the registered proprietor having Registration No. 21636 dated 4-7-1963. The defendants are also manufacturers. of medicinal products. The other trade marks of medicinal and pharmaceutical preparations of which the appellant is the registered proprietor are Benadryl, Caladryl, Ambodryl, Ergodryl, Bodryl and Combodryl. By virtue of the registration of the said trade marks, the plaintiff claims sole and execlusive right to its use.

3. It appears that some time in the year 1976, the plaintiff came to learn that the defendants, who were having their Head Office at Muzaffarpur, were manufacturing certain medicinal preparations giving it a mark "D.B. DRYL". It is stated on behalf of the appellant that the plaintiff first requested the defendants to abstain from using the word DRYL in their medicinal preparation and ultimately filed the suit in question which has given rise to this appeal. The suit, as stated earlier, was filed for perpetual injunction of the defendant from using the trade mark of which the appellant claimed to have exclusive right of user. Besides, the appellant also claimed temporary injunction against the defendant.

The learned 1st Additional District Judge has refused to grant temporary injunction and the reason which weighed with him was that there was no chance of confusion in a purchasers mind between plaintiffs and defendants products even though the mark DRYL was being used also by the defendant for its pharmaceutical preparation. In other words, according to the learned Judge, the plaintiff had no prima facie case. The prayer for grant of temporary injunction having thus been refused, the appeal is now laid before this Court.

4. Mr. Lall appearing for the appellant has submitted that once it is admitted that the appellant was the registered proprietor of the said trade mark DRYL and the defendant was not, the defendant could not use it unless they established their right to do so. It would be irrelevant for a Court, while deciding the question of temporary injunction in such a case, to say that chances of deception between the plaintiffs goods and defendants goods was nil even with that trade mark being put on their respective medicinal preparations. According to the learned counsel for appellant of there is an infringement of the plaintiffs exclusive right to use the trade mark, the plaintiffs right must be protected. In support of his argument, he has cited certain decisions if certain High Courts as also of the Supreme Court to which I shall advert at the appropriate place. On these arguments, the learned counsel for the appellant has submitted that the temporary injunction asked against the defendant must be granted to the appellant; firstly; because, there was a prima facie case (for) trial and secondly because, the balance of convenience lay in injuncting the defendant from using the said trade mark and lastly, because, irreparable injury would be caused to the plaintiff if the defendant was not injuncted. The injury to its goodwill could not be compensated in terms of money. He has, therefore, urged that the impugned order of the trial Court be set aside and the defendant be temporarily injuncted from using the said trade mark DRYL for its pharmaceutical preparations.

5. Mr. Lal Narapan Sinha, appearing for the respondent, has urge