( 1 ) THIS is second application of defendant, under order 39 Rule 4 read with Section 151 CPC for varying and setting aside the order of injunction dated 20th January, 1995 and allowing the defendant to carry on his trade of bidis in the District of Muradabad, Uttar Pradesh under the trade-mark/label 122 .

( 2 ) FACTS in brief are that plaintiff filed a suit against the defendant Adarsh Bidi Company for perpetual injunction, for infringement of copyright, passing off trade-mark and for rendition of accounts etc. pleading therein that plaintiff has been carrying on business of manufacturing and marketing of Bidis for the last more than five decades. The plaintiff has been using trade-mark/labels consisting of numerals "22" on its Bidi products. The numerals 22 are duly registered in the name of the plaintiff under the provision of Trade and merchandise Marks Act, 1958. The defendant has no right to adopt or use the impugned trade-mark or label "122" which is deceptively similar to plaintiff s registered trade-mark/labels 22.

( 3 ) BY order dated 17th December, 1991, the defendant was restrained from selling Bidis under the trade-mark 122. The defendant has filed wri