RAJIV SHAKDHER, J

1. This is an application filed by the defendants for vacation of interim order dated 11.06.2008 as confirmed by an order dated 16.12.2008. In order to dispose of the application, it would perhaps be necessary to notice the following facts:-

2. The plaintiff claims that it has been in the business of manufacturing and marketing chewing tobacco and other cognate allied goods since 1982 under the trade name „Udta Panchhi? (label). The genesis of the business is traced to a proprietorship concern started by Sh Krishan Bansal, father of Sh Anand Bansal who is the partner in the plaintiff firm. Sh Krishan Bansal had started the said business under the name of Bansal Tobacco Store. In 1994, Sh Anand Bansal changed the name to the present name i.e., M/s Ansul Industries on the death of the father in 1992 without any change in the activities, nature of business, assets and liabilities. 3. It appears that in 2001 a suit was instituted by one M/s Shiva Tobacco Company having its place of business located at Novelty Road, Ambala City, Haryana. M/s Shiva Tobacco Company instituted a suit against the present plaintiff in the District Court at Delhi. The suit was originally numbered as 330/2001. In the said suit, by an order dated 30.07.2005, the learned ADJ, Delhi had injuncted the plaintiff from using the trade mark „Udta Panchhi?. An appeal was evidently preferred against the order dated 30.07.2005. This Court by an order dated 16.07.2007 dismissed the appeal. 4. The plaintiff has admitted the fact that it temporarily discontinued the use of the trade mark „Udta Panchhi? after March, 2007. 5. It is not denied by the plaintiff that in the said suit a consent decree dated 18.05.2009 has been passed pursuant to an application moved under Order 23 Rule 3 read with Section 151 of the Code of Civil Procedure, 1908 (in short the „CPC?). As per the terms of the consent decree, the suit has been decreed in terms of Paragraph 23(i) and (ii) of the plaint filed in CS(OS) No. 147/08/2008 (original suit no. 330/2001). The learned Judge in passing the judgment and decree dated 18.05.2009 recorded the statements of both: Sh Anand Bansal in his capacity as one of the partners of the defendant in that suit and plaintiff herein; and of the partner of M/s Shiva Tobacco Company, the plaintiff in that suit. The operative part of the order reads as follows:- “23(i) for a decree of permanent injunction restraining the defendant, its partners/proprietors as the case may be, its servant, agents, representatives, dealers and all other acting for an on its behalf from manufacturing, selling and offering for sale, directly or indirectly dealing in chewing tobacco under the mark UDTA PANCHHI and/or any other mark as may be identical and/or deceptively similar to the plaintiff?s registered trade mark Nos 297415, 411126, 411127, 452559 and/or 494300 amounting to infringement thereof.

(ii) for a decree of permanent injunction restraining the defendant, its partners/proprietors as the case may be, its servant, agents, representatives, dealers and all other acting for and on its behalf from manufacturing, selling and offering for sale, directly or indirectly dealing in chewing tobacco or any other cognate or allied goods under the mark UDTA PANCHHI and/or any other mark which is identical and/or deceptively similar mark to the plaintiff?s trade mark PANCHII CHAAP and/or the mark PANCHHI with any prefix or suffix added thereto and from doing any other things or acts as may amount to passing off of its goods and/or business as and for the goods and/or the business of the plaintiff. The application Ex.C1 shall form part of the decree. Decree sheet be prepared accordingly.” 6. Only to be noted, when the instant suit was filed in this Court on 11.06.2008 the suit filed by M/s Shiva Tobacco Company was still pending adjudication. By an order dated 11.06.2008 the following ad interim ex-parte order was passed against the defendants:-

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