JUDGMENT

amit Bansal, J. - I.a.16755/2021 (O-XXXIX Rule-1 and 2 of CPC) & I.a.678/2022 (O-XXXIX R-4 of CPC)

1. By way of the present judgment, I propose to decide the application filed by the plaintiffs under Order XXXIX Rules 1 and 2 of the Code of Civil Procedure, 1908 (CPC) for grant of interim injunction pending the disposal of the suit and the application filed on behalf of the defendant No.1 under Order XXXIX Rule 4 of the CPC seeking vacation of the ex parte ad interim injunction granted on 16th December, 2021, in favour of the plaintiffs.

2. The plaintiffs have filed the present suit seeking permanent injunction against the defendants from infringing/passing off, inter alia, the trademarks, copyright of the plaintiffs and other ancillary reliefs. In the suit, it has been pleaded that:

2.1 The mark 'MOTI MaHaL' was coined and adopted by late Sh. Kundan Lal Gujral, grandfather of plaintiffs No.1 and 2 and father-in-law of plaintiff No.3, when he opened a restaurant under the distinctive trademark 'MOTI MaHaL' in Peshawar in the year 1920 and subsequently, in 1947 in Delhi.

2.2 an application for registration of the mark 'MOTI MaHaL' in Class-29 was filed by late Sh. Kundan Lal Gujral on 28th august, 1992 seeking registration since 1947.

2.3 Sh. Kundan Lal Gujral expired on 18th December, 1997 leaving behind plaintiffs No.1, 2 and 3 as his only Class I legal heirs. The only son of Sh. Kundan Lal Gujral, Mr. Nand Lal Gujral had predeceased him.

2.4 Upon demise of Sh. Kundan Lal Gujral, all rights in the trademark 'MOTI MaHaL' devolved upon the plaintiffs No. 1 to 3.

2.5 Plaintiff No.4, being a company incorporated by plaintiff No.2 in 2004, on a routine check conducted on the internet in March, 2021 came across a restaurant using the mark, 'MOTI MaHaL DELUX' located in Noida, being operated by defendant No.3 and consequently, a cease and desist notice dated 24th March, 2021 was issued to defendant No.3 by plaintiffs No.1 and 4. It emerged that the franchise was given to defendant No.3 by defendant No.1, being the son of plaintiff No.1.

2.6 It also came to notice of plaintiff No.1 that defendant No.1 had approached an existing franchisee of the plaintiffs in Mathura to enter into a franchise agreement with defendant No.2, in which defendant No.1 is the director, in place of the plaintiffs. This was done by defendant No.1 on the basis of a forged 'No Objection Certificate' granted by the plaintiff No.1 in favour of defendant No.2.

2.7 a cease and desist notice was issued on behalf of the plaintiffs to defendant No.1 on 12th april, 2021. The said notice was replied by the defendant No. 1, wherein it was claimed that defendant No.1 is the owner of trademark 'MOTI MaHaL'.

2.8 accordingly, the present suit was filed seeking permanent injunction against the defendants from infringing/passing off, inter alia, the plaintiffs trademarks and copyrights along with other ancillary reliefs

3. The suit came up for hearing before the Court on 16th December, 2021, when, finding a prima facie case in favour of the plaintiffs, this Court was pleased to pass an ex parte ad interim injunction order restraining the defendants from using the trademarks 'MOTI MaHaL', 'MOTI MaHaL DELUX', 'MOTIMaHaL Cafe' and MOTI MaHaL (stylised), formative marks or any other marks deceptively similar to the plaintiff's registered marks.

4. Though written statement has not been filed by the defendant No.1 till date, reply was filed on behalf of defendant No.1 to the application filed on behalf of the plaintiff under Order XXXIX Rules 1 and 2 of the CPC and an application was also filed under Order XXXIX Rule 4 being I.a.678/2022 for vacation of the ex parte ad interim order granted by this Court on 16th December, 2021. Notice was issued by this Court on the application filed on behalf of defendant No. 1 under Order XXXIX Rule 4 of the CPC on 14th January, 2022.

5. Senior counsel appearing on behalf of the plaintiffs has made the following submissions:

(i) Upon the death of