RAJESH H. SHUKLA, J. - The present First Appeal has been filed by the appellant-original plaintiff challenging the judgment and order passed by the learned Assistant Judge, Junagadh at Porbandar in Trade Mark Suit No.1 of 1985 dated 09.09.1991 on the grounds stated in the memo of First Appeal inter alia that the learned Judge has erred in comparing the respective trade marks according to the well-established principles of comparison of trade marks before expressing any opinion. It is also contended that the learned judge ought to have appreciated that the Suit for infringement is statutory remedy and whether the trade mark is in actual use or not is immaterial. It is also contended that the learned Judge has failed to appreciate that Section 18(1) of the Trade and Merchandise Marks Act, 1958 (hereinafter referred to as “the Act) relates to registration of the trade mark and does not deal with the trade mark already registered and it is not necessary to have any prior use of the trade mark before registration. It is also contended that the learned Judge has failed to appreciate that the appellant has been manufacturing the chemical products since 1922 and it has entered into the field of super phosphate in 1945 after considerable research. Therefore, such infringement could not have been allowed in view of the provisions of the Act. It is also contended that the learned Judge has failed to appreciate that the registration of the trade mark is conclusive under Section 32 of the Act and as it has not been challenged by separate proceeding, same is the property of the appellant, which gives right of infringement action. It is also contended that the learned Judge has failed to appreciate that in view of the decision of the Hon'ble Supreme Court in case of Ruston & Harnsby Ltd. Vs. Zamindara Engineering Company, reported in AIR 1970 SC 1649, the action i.e. infringement action and injunction would be issued as soon as it is proved that the defendant is improperly using the plaintiff's registered trade mark.

2. In the aforesaid First Appeal, the respondent has filed Civil Application No.4071 of 2011 for the orders raising contentions that there is round of litigation and the appellant had obtained the registration of trade mark under No.221534, 224495, 227548 & 339729 in respect of the goods interalia 'Chemical products used in industry, science, agriculture, horticulture and forestry and manures (artificial and natural)' included in Class-1 under the provisions of the Act. It is contended that the additional issue was framed in view of the applications at Exh.54 at Exh.63 given by the applicant-original defendant and the earlier Suit filed by the same appellant was disposed of in view of the purshis. It is contended that the developments, which have taken place subsequently, are required to be taken into consideration, particularly, provisions of Section 20 read with Section 30 of the Act. It is contended that no Suit for infringement would lie against the use of the trade mark, which is registered and renewed from time to time. It is contended that the applicant being registered owner of the registered trade mark “nauka brand”, no Suit for infringement would lie against the applicant. It is also contended that Section 107 of the Act read with Order 41, Rules 27 & 33 provides ample power to take into consideration the subsequent events pending Appeal. Therefore, it has been contended that the entire material and evidence may be considered and in light of the provisions of the Act, particularly, Section 23 read with Sections 28 and 30(1)(d) of the Act, the present Appeal is not maintainable and is required to be dismissed. It is specifically contended that the applicant is the registered proprietor of the trade mark “nauka” under Section 28 of the Act and is entitled to use exclusively. It is also contended that as the applicant is the registered proprietor of the said trade mark “nauka brand” as provided under Section 28(3)