SOUMEN SEN, J.

1. In an action for infringement and passing off in relation to trade mark “Exxon”, the petitioners have filed this instant application, praying, inter alia, for an order of injunction restraining the respondent from using its trade name “Exon”.

2. This action was preceded by a suit for infringement filed by the petitioners before the Delhi High Court. In the said proceeding, initially, an order of injunction was passed on 10th August, 2015. The said order was confirmed on 24th August, 2016. The respondent, in the meantime, filed an application before the Delhi High Court for rejection of the plaint, and/or, in the alternative, return of the plaint due to lack of territorial jurisdiction. One of the grounds for rejection was that in view of Section 53 of the Trade Marks Act, 1999, a permitted user had no right to institute any proceeding for infringement. The petitioner No.2, being a permitted user, had no right to institute any proceedings for infringement and thus the petitioner No. 2 could not avail of Section 134(2) of the Trade Marks Act, 1999.

3. The said application was rejected.

4. However, in an appeal preferred by the respondent, the Hon’ble Division