A temporary injunction should not be granted merely because a prima facie case is established; the court must also consider the balance of convenience and irreparable loss.

P. K. MISRA, J.

( 1 ) THE defendants have filed this appeal against the order of the District Judge, Keonjhar, in M. J. C. No. 1 of 1997 restraining the defendants from using the impugned trade-mark till disposal of Title Suit No. 1 of 1997, pending before the District Judge. The aforesaid suit had been filed by the plaintiff-respondents under Section 105 (c) of the Trade and Merchandise Marks Act, 1958 (Act 43 of 1958) claiming damages of Rs. 49,000/- and for permanent injunction. According to their allegation, their firm had been carrying on manufacturing business of chewing tobacco ('khaini') under Certificate No. 21/rourkela-II/92 dated 31-7-1992 issued under the Central Excises and Salt Act, 1944 (1 of 1944) and the Rules framed thereunder. It is alleged that the plaintiffs have been marketing their products under "shankar" brand since 1992 as per the said Certificate. It is further alleged that the defendants obtained Certificate on 20-10-1992 under the very same Act by imitating the wrapper and packet of the plaintiffs, thereby passing off their 'khaini' as that of the plaintiffs, thus causing damage to the business of the plaintiffs. The plaintiffs also filed an application under Order 39, Rules 1 and 2, Code of Civil Procedure, for temporary injunction to restrain the defendants from using the impugned trade-mark till disposal of the suit.

( 2 ) THE defendants, in their written statement, claim that their business in manufacturing and selling 'khaini" was much prior to the business initiated by the plaintiffs. They further took the plea that the plaintiffs' firm got the Certificate amended in 1996 to use the trade-name "shankar", and as a matter of fact, the plaintiffs are passing off their goods as that of the defendants. In fact, the defendants claim a sum of Rs. 40,000/- as counter claim. It is further alleged that the defendants have lodged F. I. R. against the plaintiffs in September, 1994, and also filed complaints before the Inspector of Central Excise and the Superintendent of Central Excise and the police has seized the imitated packets of the plaintiffs, and the present suit has been filed on false allegations as a counter-blast. The assertions made in the petition under Order 39, Rules 1 and 2, were also similarly refuted by the defendants.

( 3 ) THE trial Court allowed the prayer for temporary injunction in favour of the plaintiffs primarily on the findings that (I) plaintiffs got the certificate under the Central Excises and Salt Act and the Rules to manufacture 'khaini' earlier than the defendants; and (II) the print, design, colour and pictures on the wrapper and packet of the defendants were deceptively similar to those of the plaintiffs and thus the plaintiffs had been able to make out a prima facie case.

( 4 ) THE learned counsel appearing for the defendant-appellants submitted that the licence given to the plaintiffs was in the name of "bishnu Prasad and Company" for manufacturing branded chewing tobacco and the said registration certificate dated 31-7-1992 was subsequently amended on 13-2-1995 and 9-12-1996 for manufacturing "shankar" brand chewing tobacco. It is, therefore, submitted that the defendants' original certificate was earlier to the amended certificate of the plaintiffs and as such, there was no prima facie case in favour of the plaintiffs. It has been further submitted that the trial Court without at all discussing the questions of balance of convenience and irreparable loss has jumped to the conclusion that balance of convenience was in favour of the plaintiffs and irreparable loss would be caused to the plaintiffs if injunction is not granted, merely because it found a prima facie case in favour of the plaintiffs.

( 5 ) THE principle of law relating to temporary injunction during pendency of the suit is well recognised and in view of the decision of the Supreme Court reported in AIR 1993 SC 276 (Dalpat Kumar v. Prahlad Singh), it is unnecessary to refer to other decisions of vari