JUDGMENT :

Sanjiv Khanna, J.

The appellant, M/s Annul Industries, and the respondent M/s Shiva Tobacco Company, both manufacture and sell chewing tobacco. Chewing tobacco manufactured/sold by the appellant is marketed under the trade mark 'Udta Panchhi' and the chewing tobacco manufactured/sold by the respondent is marketed under the brand name 'Panchhi Chaap'.

2. The respondent claims that they started using the brand name 'Panchhi Chaap' in 1973 and is also the registered user of the said trade mark label under the Trade and Merchandise Marks Act, 1958 (hereinafter referred to as the Act) since in 1974. The appellant claims his lineage to the trade mark 'Udta Panchhi' through Mr. Krishan Bansal, father of Mr. Anand Bansal, sole proprietor of the appellant. It is claimed that Mr. Krishan Bansal adopted the trade mark 'Udta Panchhi' in March, 1982.

3. Learned trial Court by the impugned order dated 30th July, 2005 has allowed application of the respondent under Order XXXIX, Rules 1 and 2 of the Code of Civil Procedure, 1908 (hereinafter referred to as the Code, for short) and restrained the appellant from using the mark "Panchhi". While doing so, learned trial Court has held that the r