Hon’ble Pankaj Mithal, J.—The plaintiff-respondent M/s Girraj Food Products, Hathras through its proprietor instituted Original Suit No. 1 of 2009 against the defendant-appellants under the Trade Marks Act, 1999 (hereinafter referred to as an Act) for permanent injunction restraining the defendants from packing and selling ‘Namkeen’ with the name of ‘Raja Chaudhary’ which was said to be similar and deceptive to the registered trade mark ‘Chacha Chaudhary’ of the plaintiff-respondent; for accounting with regard to sale so far made with the deceptive name; and for seizer of all such deceptive material.

2. The suit was instituted on 12.12.2007 and an application for interim injunction was also moved therein. The application was opposed by the defendant-appellants by filing objection on 19.3.2009 and further written statement and it was inter alia contended that as the registered trade mark of the plaintiff-respondent itself is in question, the proceedings of the suit are liable to be stayed and that the trade name used by the defendant-appellants is quite distinct and different to the registered trade mark of the plaintiff-respondent so as to be called deceptive. The application on contest has been allowed by the impugned judgment and order dated 20.4.2009 and the defendant-appellants have been restrained from packing, selling and marketing any ‘Namkeen’ under the trade name ‘Raja Chaudhary’ which is said to be similar and deceptive to the trade mark ‘Chacha Chaudhary’ which is prima facie registered in the name of the plaintiff-respondent.

3. Aggrieved, the defendant-appellants have preferred this First Appeal From Order.

4. I have heard Sri Kshitij Shailendra, learned counsel for the defendant-appellants and Sri S.N. Singh, Advocate assisted by Sri Anil Kumar Shukla, learned counsel appearing for plaintiff-respondent.

5. At the very first day when the appeal came up for consideration as the plaintiff-respondent has entered caveat, the counsel for the parties agreed for the final disposal of the appeal at the admission stage itself. They were accordingly allowed time to exchange necessary affidavits so that appeal be heard finally on merits. On exchange of affidavits with the consent of the parties the matter was heard on merits for final disposal.

6. Sri Kshitij Shailendra, learned counsel for the defendant-appellants has basically made three arguments. His first submission is that the interim injunction of the nature as granted by the Court below could not have been granted in view of the language used under Section 135(2) of the Act. Secondly, as the registered trade mark of the plaintiff-respondent itself was in question and pleadings to this effect were made, the proceedings of the suit were liable to be stayed under Section 124 of the Act. Lastly, he has submitted that the trade name ‘Raja Chaudhary’ used by the defendant-appellants for manufacturing and marketing of their ‘Namkeen’ products do not resembles the registered trade mark of the plaintiff-respondent as such is not deceptive in nature. Moreover, the registered trade mark of the plaintiff-respondent is for ‘Dalmoth’ only whereas defendant-appellants are selling various kinds of ‘Namkeen’ under the trade name of ‘Raja Chaudhary’.

7. There is no dispute to the fact that the plaintiff-appellants is the prior user of the registered trade mark of ‘Chacha Chaudhary’ (registered on 7th July, 2005 w.e.f. 24.1.2002) having registration No. 01075846. The said trade mark is registered for marketing all kinds of ‘Namkeen’ preparations and confectionery products (see certified copy of registration of trade mark page 104 of the paper book of the appellants). This certificate establishes that the aforesaid trade mark has been registered permitting the plaintiff-respondent to market all kinds of ‘Namkeen’ preparation and confectionery products and is not confined for the packing and selling of any one particular kind of ‘Namkeen’ i.e. ‘Dalmoth’. At the same time, it is a