Vikramajit Sen, J.

( 1 ) THIS is a suit for permanent injunction, infringement of copyright and trade mark, passing off and rendition of accounts. Summons were ordered to be issued to the defendants on 14. 8. 1998 for the next date of hearing which was 14. 10. 1998. On 14. 10. 1998 the matter was adjourned to 22. 1. 1998. On 22. 1. 1999 a request for time to file Written Statement and Reply was made and an adjournment was granted for this purpose. On 18. 3. 1999, which was the next date of hearing, yet on another request fur- ther time of four weeks for Filing the Written Statement was granted. When the matter came up on 21. 7. 1999 before the Joint Registrar (O) it was noted that the Written Statement had not been filed and hence the matter was placed before Court. On 6. 8. 1998 there was no appearance on behalf of Defendants. In these circumstances, Order 8 Rule 10 was relied upon by the learned counsel for the Plaintiffs and it was pressed before me that the Court should pronounce judgement against the Defendants. Arguments were heard in the suit and judgment was reserved.

( 2 ) ORDER 8 Rule 10 reads as under:

"0. 8 R. IO. When any party from whom a written statement is required under rule I or rule 9 fails to present the same within time permitted or Fixed by the court, as the case may be, the Court shall pronounce judgment against him or make such order in relation to the suit as it thinks Fit and. on the pronouncement of such judgment, decree shall be drawn up.

2. 1 These provisions were altered by the Amendment Act, 1976, and the word shall replaced the word may in this Rule. Even though the use of the word shall appears to make it mandatory that a judgment should be pronounced, this mandate has been watered down by the subsequent part of the sentence which protects the discretion of the Court inasmuch as it can "make such order in relation to the suit as it thinks fit". I had, therefore, not pronounced the judgment on 6. 8. 1999.

( 3 ) KEEPING in perspective the fact that at least four opportunities for Filing Written Statement have not been availed of by the Defendants I feel this is a fit case for invoking the provisions of Order 8 Rule 10. However, since no defence has come forward, it would be, to my mind, the duty of the Court to consider the correctness of the Plaintiffs case. For this reason the plaint as well as documents Filed along with it were perused and arguments were heard on behalf of Plaintiffs.

( 4 ) THE Plaintiff No. I is engaged in the manufacture of rubber chappals and all other kinds of footwears and since 10. 10. 1990 the Plaintiff No. 2 is marketing, selling and making publicity of these products manufactured by Plaintiff No. I Trade mark RELAXO is continuously and extensively in use by the Plaintiff No. I since 1968. In 1976 the word relaxo was drawn up in an artistic manner and in a unique and distinctive style as contemplated by Section 2 (c) of the Copyright Act, 1957. The three artistic works related to the word relaxo have been registered under the Copyright Act, 1957 under Registration Nos. A16964/77, A42720/83 and A42721/83. Copies of the extracts in the register of Copyrights have been filed.

( 5 ) IN order to protect the proprietary rights in the trade mark RELAXO registration was carried out under the Trade and Merchandise Marks Act, 1958 and copies of the relevant orders have also been filed along with the suit.

( 6 ) IT has been averred in the plaint that due to excellent quality of the Plaintiffs products the said trade name RELAXO have acquired in all the markets of the country a valuable reputation. The publicity expenses pertaining to the trade mark RELAXO during the period 1978 to 1998 is stated to exceed Rs. 16 crores. The sales for the period 1976 to 1998 exceeds Rs. 312 crores.

( 7 ) IT has further been averred in the plaint, and this stands undisputed, that the Defendants have been selling rubber chappals bearing identical trade mark RELAXO in the same style of writ

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