( 1 ) THIS application is filed for the review or the modification of the order passed by this Court in Appeal From Order No. 436/2000 on 19. 7. 2001.

( 2 ) FACTS goes to show that the present applicant filed Regular Civil Suit No. 1/2000 in the Court of District Judge at Jamnagar stating that the plaintiff is a partnership firm engaged in the business of manufacturing and selling edible oil and their brand name or trade mark is "ekka". The description of the trade mark is also described in detail by the plaintiff. The grievance was made that the defendant by adopting the similar trade name and trade mark of "tin EKKA" passes off their goods as the goods of the plaintiff and were liable to the action under common law and for that suit came to be filed for restraining the defendant from using the trade mark label "tin EKKA" with the device which is being used by the defendant and for the damages caused to the plaintiff by passing of the goods. The plaintiff also filed temporary injunction application at Ex. 5 under Order-39 Rules 1 and 2 for the temporary injunction restraining defendants from using brand name or trade mark "tin EKKA". The said application came to be rejected by the trial Judge, therefore, being aggrieved the said Appeal From Order No. 436/2000 was preferred by the original plaintiff.

( 3 ) IN that appeal both the sides were at length heard and the following order was passed. "22. IN this view of the matter, while observations and the order passed below application Ex. 5 as aforesaid cannot be countenanced, at the same time, at this prima facie juncture, no order can be passed in favour of the plaintiff also because there is no evidence at this stage to pass any interim order in favour of the plaintiff which according to the tests laid down by the Apex Court in Cadilas case (supra) can be adduced and proved by the plaintiff during trial. In this view of the matter, the following order is passed:the observations of the learned Trial Judge below Ex. 5 and the order passed thereon are set aside. To that extent, the Appeal is allowed with no order as to costs. However, as aforesaid, no order at this stage is passed in favour of the plaintiff below application Ex. 5, and to remand application Ex. 5 for fresh disposal would be futile exercise, instead, the Trial Court is directed to decide the Regular Civil Suit No. 1 of 2000 within 4 months according, to law from, the date of receipt of writ of this Court or on producing a certified copy of the order by any of the parties, which ever is earlier. Defendants are directed to produce their statement of Accounts of their business before trial court from the date of the suit till its disposal because, in case, if any decree for damages is to be passed in favour plaintiff, the same may assist the trial court in appreciation. The Trial Court is further directed to decide the case finally after applying tests as laid down by the Apex Court in Cadilas case (supra ). " D. S. permitted. "

( 4 ) NOW, this application is filed for the review or modification of the above said order by stating that since the appeal was allowed and order of injunction in favour of the plaintiff was natural consequence of that order which was not considered by the court and, therefore, it is urged that since the appeal is allowed the final order passed by this Court be modified to the extent that either temporary injunction be granted in favour of the plaintiff or the Ex. 5 application be remanded back to the trial Judge for decision thereon.

( 5 ) LEARNED advocate Mr. R. R. Shah, for the applicant was heard at length. It is urged that the final order directing the trial court hurts the plaintiff because the same prejudices the right of the plaintiff as to the trade mark. It is urged that since appeal was allowed and plaintiffs have produced sufficient evidence on record in favour of the plaintiff, the plaintiff was entitled to have temporary interim injunction in his favour. There was e