P.K. Misra, J.

The present appeal is filed against the order of the learned single Judge in Application No.368/1994 arising out of C.S.No.1148/1993, wherein the learned single Judge has rejected the application filed by the present appellant and refused to stay the proceedings in such suit. C.S.No.1148/1993 was filed by the present respondent claiming for the following reliefs.

"(a)granting a permanent injunction restraining the defendants by themselves, their servants, agents, their men of anyone claiming through them from manufacturing, marketing, distributing, offering and advertising for sale any pharmaceutical veterinary and sanitary substances, children and invalid foods, plasters materials for bandaging, material for staffing tooth dental wax, disinfectant, preparations for killing weeds and disharming vermin, using the name OSSOPAN" or any other name/Trade Mark which is in any way deceptively/phonetically similar to the Plaintiffs registered Trade Mark "OSSOPAN" registered under Registration No.129304 in Class-5, dated 13-5-1947 in part-A or in any manner infringing the plaintiffs registered Trade Mark "OSSOPAN".

(b) directing the Defendants to render a true and faithful account of profits earned by them through the manufacture and sale or all the pharmaceutical goods and directing such profits to be paid to the Plaintiff for the infringement committed by the Defendants.

(c) directing the Defendants to surrender to the Plaintiffs all the cartons, containers, labels, packers and any other printed materials containing the impugned name "OSSOPAN" together with the blocks used for the purpose of printing the same for destruction."

2. The main allegation in the suit was to the effect that the plaintiff (the present respondent) was the owner of the registered Trade Mark "OSSOPAN" and there was violation by the defendants (the present appellant). Apart from injunction, the plaintiff had also prayed for rendering of accounts and payment of compensation.

3. The present appellant in its written statement had taken the plea that an Application has been filed under Chapter-VII of the Trade and Merchandise Marks Act, 1958, hereinafter referred to as "the Act", which had been registered by the Registrar of Trade Marks, Calcutta. The main contention which had been raised therein was to the effect that Trade Mark has been registered without any bonafide intention on the part of the plaintiff for using the same and the same has not been used continuously for a period of five years or more. There was no bonafide use of such Trade Mark and therefore the registered Trade Mark should be taken off the register as contemplated in Section 46 of the Act.

4. The defendant had filed an application under Section 111 of the Act for stay of the suit as, according to the defendant, validity of registration was in question. The learned single Judge has rejected such an application and refused to stay the suit mainly on the footing that such application before the Office of the Registrar of Trade Marks, Calcutta, had been filed on 2nd November, 1992; whereas such defendant itself had filed a suit before the Madras High Court on 3rd November, 1992 and therefore the statement made in the application before the Registrar that no proceedings was pending relating to Trade Mark in question was not a correct statement, inasmuch as the defendant had verified the plaint on 011. 1992 which was presented in the Court on the same day and therefore there was suppression of material fact. Such order is being impugned in the present appeal.

5. Learned counsel for the appellant has contended that the provisions contained in Section 111(1)(a) of the Act is squarely applicable and therefore the learned single Judge had no discretion in the matter and stay should have been granted.

6. Learned counsel appearing for the respondent/plaintiff on the other hand submitted that the question of stay would arise only when the defendant pleads that the registrati