Manmohan Singh, J.

1. The present suit has been filed by the plaintiff for permanent injunction, infringement of trademark, passing off, rendition of accounts and damages against the defendant seeking to restrain it from using the trademark MADHU BAHAR in respect of chewing tobacco.

2. The suit along with interim application was listed on 06.02.2012. The court passed an interim order thereby restraining the defendant from manufacturing, selling, offering for sale or otherwise dealing in “Chewing Tobacco” under the trade mark “MADHU BAHAR” or any other trade mark which may be deceptively similar to that of the plaintiff. Today the matter was listed for disposal of the pending applications and arguments on behalf of the plaintiff as the learned counsel for the defendant already made her submissions on 29.02.2012. The following points were raised by the counsel for the defendant:

(a) The compliance of Order XXXIX, Rule 3 CPC has not been made by the plaintiff, as provided under the said provision.

(b) The plaintiff has never used the green colour label as filed in Court along with the suit and it has been filed by the plaintiff in order to obtain the ex parte order.

(c) The sale figures given by the plaintiff in the pleading do not tally with the sale figures pertaining to the said trade mark in the affidavit filed by the plaintiff in Trade Mark Office.

(d) The two trademarks “MADHU” and “MADHU BAHAR” are different. There is no separate registration in favour of the plaintiff for word per-se. The plaintiff has merely got the registration as a label mark. Hence, there is no infringement under the provisions of Section 17 of the Trade Marks Act, 1999.

(e) As the defendant is also holding the license of the said trade mark through United Traders, therefore, the suit for infringement of the trade mark is not maintainable.

3. After the completion of the arguments, the Court enquired about the compliance of Order XXXIX Rule 3 CPC from Mr Ashok Mittal, Advocate, who appeared on behalf of the plaintiff. He submitted that in compliance of Order XXXIX Rule 3 CPC, an affidavit of the plaintiff’s counsel was filed in the Registry. However, he agreed that the weight of the entire paper book filed before Court is more than 2.5 k.g. and the parcel sent under the compliance of Order XXXIX Rule 3 CPC is about 1 k.g. He also undertook before Court to produce relevant record of the green colour label if it has been used by the plaintiff at any point of time with cogent evidence. He was unable to give any justification as to why the sale figures produced by the plaintiff in Court did not tally with the sale figures filed in the Trade Mark Office.

4. The counsel for the plaintiff stated that the affidavit of compliance was filed in the Registry and the copy of the same was shown to the Court along with postal receipt. However, as per the report of the Registry, the said affidavit has not been filed.

5. When the ex-parte order was granted on 06.02.2012, one week’s time was granted to the plaintiff to comply with the provisions of Order XXXIX Rule 3 CPC. According to the learned counsel for the plaintiff, the affidavit was filed within one week. But, the fact remains that the complete set of paper book was not sent under the said compliance. The learned counsel for the defendant argued that there is a total non-compliance of mandatory provision contained under Order XXXIX Rule 3 CPC.

6. Order XXXIX Rule 3 CPC provides in unambiguous terms that in cases where the court proposes to grant an ex parte interim injunction in favour of a party, it shall require the applicant to comply with the provisions contained in the said rule by delivering to the opposite party, or to send to him by registered post, immediately after the order granting the injunction has been made, a copy of the application for injunction together with a copy of the affidavit filed in support of the application, a copy of the plaint, and copies of documents on which the applican