( 1 ) TRADE mark `energic-31 is at the root of controversy. Appellant s suit No. 304/99 for infringement and passing off of this trade mark has been dismissed by trial court by judgment dated 9. 3. 2000. Hence this appeal.

( 2 ) APPELLANT is carrying on the business of manufacturing and trading in Ayurvedic medicines under various trade marks and claims to be the proprietor of trade mark `energic-31 also. Appellant filed an injunction suit claiming that he had coined and adopted this Mark way back in 1980 and had used it eversince and prayed to restrain Respondents from using this and his trade name and trading style. He obtained an interim restraint also.

( 3 ) RESPONDENTS contested this suit and filed their written statement pointing out that appellant had supressed material facts and had failed to disclose that his two applications for registration of trade mark `energic-31 stood dismissed by the Registrar of Trade Marks and that his pending third application was also liable to be dismissed and that he had disclaimed exclusive use of numerical 31 which was published in the Trade Mark journal. They also alleged that he was using the word `r to give a false impressio