The central legal point established in the judgment is the application of the Trade and Merchandise Marks Act, 1958, particularly Section 22, to determine the deceptive similarity between trade-marks and the principles of undue hardship and change in circumstances under Order 39 Rule 4 CPC.

( 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 written statement, inter alia, pleading that defendant is neither manufacturing Bidis in question in Delhi nor marketing the same in Delhi; and no cause of action had arisen in delhi. Thus this Court has no jurisdiction to try the suit. He has also filed IA No. 8016/92 on 22nd. July, 1992 praying for vacation of the ex parte injunction. By detailed order dated 20th January, 1995, Hon ble mr. Justice R. C. Lahoti (as his Lordship then was) confirmed the interim order, restraining the defendant from using trade-mark 122 and any other trade-mark consisting of such numerals as may be deceptively similar to that of plaintiff "22". The defendant s application was dismissed. The defendant took up the matter in appeal. The application for stay of the impugned order was dismissed vide order dated 20th January, 1998, by the division Bench.

( 4 ) ISSUES were framed on 14th March, 1996 including the issue relating to the jurisdiction raised, in the written statement. On 18th February, 1998, local commissioner was appointed to record the evidence and evidence of some of the witnesses has already been recorded and local commissioner has filed the report.

( 5 ) NOW the defendant No. 1 has again filed application, under Order 39 Rule 4 CPC praying for setting aside the injunction order dated 20th January, 1995, on the ground that this Court has no territorial jurisdiction, and that this aspect was not considered in the earlier order.

( 6 ) I have heard learned counsel for the parties and have been taken through the record.

( 7 ) LEARNED counsel for the defendant argued that prima facie findings with respect to the alleged breach of plaintiff s copy right were recorded in the order dated 20. 1. 1995, while confirming the injunction. He further argued that this court has no territorial jurisdiction to entertain and try the suit, as the defendant doe s not reside in Delhi; no cause of action has arisen in Delhi; the plaintiff has not filed any document to show that the defendant was selling its products in Delhi; and that composite suit for violation of trade-mark and copy right on the basis of the averments made in the plaint, is not made out, therefore, the suit is liable to be rejected. In support of his submission reliance was placed on a decision of this Court in Gupta Brothers Conduit Pipe manufacturing Co. Pvttltd. Vs. Anil Gupta and Anr. , 2001 (24) PTC 159 (Delhi ). He further argued that the question with regard to lack of territorial jurisdiction of this Court was specifically raised in the written statement and the same was not dealt with by the Court while confirming the order of injunction. Learned counsel for the plaintiff argued to the contrary.

( 8 ) I have considered the rival contentions. Ex parte injunction dated 17th December, 2001 was confirmed by or