JUDGMENT :

Tashi Rabstan, J.

1. Through the medium of this appeal, the appellants seek setting aside of the order dated 15.09.2021, passed by the court of learned Principal District Judge, Jammu (for short the “Trial Court”) in a civil suit titled as “Joginder Pal Gupta vs. J.K. Oil Industries Trading Wing and anr.”, whereby made absolute the ex parte temporary injunction order dated 20.08.2021 till final disposal of the suit, on the grounds tailored therein.

2. It is contended in the appeal that the appellant No. 1 entered into an agreement with K.S. Oil Industries, who had registration of trademark “DO PATTAR” brand bearing no. 1201032 in Class 29, whereby K.S. Oil Industries has given exclusive right to the appellant No. 1 to use the trademark “DO PATTAR” and as per the agreement, K.S. Oil Industries itself cannot use the trademark “DO PATTAR”. The said agreement was to be renewed from time to time on discretion of appellant No. 1 on same terms and conditions on expiry of the agreement and further, right to terminate the agreement is with appellant No. 1 only. It is contended that the agreement was first entered on 14.02.2006 for the period of five year i.e. till 14.02.2011. The appellant No. 1 approached K.S. Oil Industries and got the agreement renewed on 12.02.2011 for further five years i.e. from 14.02.2011 to 14.02.2016. It is further contended that the appellant no. 1 approached K.S. Oil Industries on 14.02.2016 but could not locate the same and the enquiry into the market revealed that K.S. Oil Industries ceases to exist.

3. It is averred that the appellant no. 1 is continuously and uninterruptedly using the trademark “DO PATTAR” in respect of edible oil since 14.02.2006 and has all the licenses, certification and approval. The goods of the appellant No. 1 under the trademark “DO PATTAR” has acquired enviable goodwill and reputation, owing to extensive commercial use and advertisement through various mediums including newspapers, magazines, hoardings, sales promotional material, etc. at huge financial expense.

4. It is contended that the respondent by abusing the process of law and judicial proceedings’ has filed a civil suit titled “Joginder Pal Gupta vs. J.K. Oil Industries Trading Wing and anr” before the court of learned Principal District Judge, Jammu seeking decree of permanent prohibitory injunction restraining the appellants herein including their agents and persons claiming through them from using the trade mark “DO PATTAR” as the respondent herein is the proprietor of the trade mark “DO PATTAR” and mandatory injunction directing the appellants herein to pay an amount to the tune of Rs. 1,00,000/- along with interest @ 18 % for the period the trademark of the respondent herein “DO PATTAR” is used by the defendants unauthorizedly. It is further contended that the respondent herein has also filed an application for temporary injunction under order 39 Rule 1 & 2 read with Section 151 C.P.C. alongwith suit and the learned Principal District Judge, Jammu entertained the suit and passed the order dated 20.08.2021. It is averred that the appellants on coming to know about the order dated 20.08.2021 besides filing written statement, reply to temporary injunction application and application under Order 39 Rule 4, filed application under Order VII Rule 11 for rejection of plaint on the ground of no cause of action, but the learned Principal District Judge, Jammu disregarded the argument of the appellants herein completely, passed order dated 15.09.2021 whereby made absolute its ex-parte temporary injunction order dated 20.08.2021.

5. It is contended that the appellants have already challenged the right and locus of the respondent and filed application under Order 7 Rule 11 of C.P.C. and the learned Trial court without enquiring the right and locus of the respondent not only entertained the civil suit but also passed the impugned order. The learned Trial court has committed a grave error in not appreciating that the sale of