( 1 ) BEING aggrieved by order dated 28. 9. 01 passed by the learned City Civil Judge, Court no. 5 below exh. 55 filed by original defendants/present respondents in Civil Suit no. 5115 of 1993, the appellants/original plaintiffs have appeared before this Court by way of this Appeal From Order under Sec. 104 read with Order 43 Rule 1 (r) of the Civil Procedure Code, 1908. For the sake of convenience, the parties to this litigation have been referred to as they have been arrayed by the trial Court. The appellants/plaintiffs prayed in this Appeal from order to quash and set aside the order dated 28. 9. 01 passed by the learned City Civil Judge, Court no. 5 below exh. 55 and further prayed to grant interim injunction against the use of impugned Annapurna trade mark for the State of Gujarat.

( 2 ) WITH the consent of the learned advocates, the present appeal from order is disposed of finally.

( 3 ) THE facts giving rise to the litigation, as stated by the plaintiffs in this appeal, in nutshell are as under : The plaintiff no. 1 is a sole proprietorship firm carrying on business as manufacturers of and merchants in Asafoetida and compound Asafoetida (popularly known as Hing in Gujarat) since 1976. The plaintiff no. 2 is a Private Limited company marketing Annapurna Brand Asafoetida and compound Asafoetida of defendant no. 1 as licensee. The defendant no. 1 is a firm carrying on business as manufacturers and dealers of asafoetida and compound asafoetida (Hing) at Nasik in Maharashtra state. The defendant no. 2 is a dealer of defendant no. 1 through whom the goods of the defendant no. 1 are being commercially sold in Ahmedabad. It is the case of the plaintiff no. 1 that it owns Annapurna Trade Mark with device of goddess of Annapurna with various nos. like Annapurna 111, Annapurna 151, Annapurna 222 etc. The trade mark Annapurna of the first appellant is the word Annapurna used with device of goddess Annapurna. The said trade mark has been extensively used by the plaintiffs and has acquired appreciation by reason of intrinsic quality of the product in respect of Hing. The plaintiff no. 1 has acquired registered trade mark in the brand label no. 222 bearing no. 363800 dated 15. 7. 80 and brand label no. 111 bearing no. 389162 dated 24. 4. 82. Both the registered marks were under class `30.

( 4 ) IT is the case of the plaintiffs that in or about June 76, the plaintiff no. 1 wanted to introduce asafoetida and compound asafoetida and thereupon decided to adopt the fanciful Annapurna with device of Goddess Annapurna as a Trade Mark for their said products. He started manufacturing the said Hing in the month of September, 96 and also marketing under the said trade mark with nos. 111, 151 and 222 since 24. 10. 76. Since the last 25 years, the plaintiffs have spent considerable amount and made efforts for promoting their product of Hing. They maintained high quality standards of their said Annapurna products. Because of the excellent efficacy, high quality standards and sales promotion efforts put in by the plaintiffs, there is an ever increasing demand for their said Annapurna products all over India and during the last 25 years, it has exceeded several crores of rupees in its turn over.

( 5 ) IT is the case of the plaintiffs that for the label no. 151, application no. 389163 was made on 24. 4. 82 in Class 30 for Hing and it was opposed by the defendant no. 1. The said opposition has been decided in favour of the present appellants/plaintiffs. Dissatisfied with the said decision, the defendant no. 1 has filed review petition before the Registrar of Trade Marks which was decided against the present appellants/ plaintiffs. Dissatisfied with the said order, the present appellants/plaintiffs preferred appeal against the order of Registrar of Trade Marks. The appeal has been allowed by this Court in favour of the appellants and against the said order, the defendant no. 1 filed a second appeal before the Division Bench of this Co