Hon’ble Pankaj Mithal, J.—The appeal under Order 43 Rule (1) (r) CPC is directed against the order of the Court below dated 16.11.2002 allowing the plaintiffs application paper No. 5 Ga-2 for interim injunction in Original Suit No. 3 of 2001 M/s. Shivhare Pharmacy and others v. Ganga Prasad Rawat.

2. The plaintiffs instituted the above suit for permanent injunction restraining the defendant, his agents and his representatives from using trade names “Himshankar Lal Tail” and “Shivshankar Vijay Tail”, as both the above trade names were similar and deceptive to the registered trade marks “Himshankar Vijay Tail” and “Shivshankar Vijay Tail” of the plaintiffs and further to restrain the defendants, his agents and representatives from interfering in the plaintiffs use of the aforesaid trade marks and in carrying of business of the above products.

3. The aforesaid suit was filed on the allegation that plaintiff No. 1 M/S Shivhare Pharmacy is a sole proprietorship firm and that plaintiff No. 2 is its sole proprietor. The plaintiffs are in business of manufacturing and selling of ayurvedic products under the trade marks “Himshankar Vijay Tail” (trade mark registration No. 425844 of 1984) and “Shivshankar Vijay Tail” (trade mark registration No. 425841 of 1984). Both the aforesaid registrations were granted under the Trade and Merchandise Mark Act, 1958. The defendant has started dealing with ayurvedic products having similar trade names “Himshankar Lal Tail” and Shivshankar Vijay Tail”. Both of which are similar and identical to the trade marks of the plaintiffs and as such are deceptive. The use of the said trade names by the defendant is violative of the Trade Marks Act, 1999 (hereinafter for short ‘Act’)

4. The suit is being contested by the defendant denying the plaint allegations.

In the suit the plaintiffs also applied for grant of interim injunction. In reply to the said application objections No. 17 Ga-2 were filed by the defendant.

5. The defendant contended that the plaintiffs are not having any registration in respect of the trade names “Himshankar Vijay Tail” and Shivshankar Vijay Tail”. The plaintiffs have never manufactured any oil with the trade name of “Shivshankar Vijay Tail”. They are only manufacturing “Himshankar Vijay Tail”. The bottle, label and cap of the bottle of which are quite different and distinct from the packing of the “Himshankar Lal Tail” manufactured and sold by the defendant since 1977. The defendant as such has not violated any provisions of the Act. In fact had had applied for registration of his trade name separately. No prima facie case for grant of interim injunction is made out in favour of the plaintiffs whereas the balance of convenience lies in favour of the defendant.

6. The Court of first instance vide impugned order dated 16.11.2002 allowed interim injunction application holding that the plaintiffs are the holders of registered trade marks “Himshankar Vijay Tail and “Shivshankar Vijay Tail” since 1994. The products of the defendant with the names “Himshankar Lal Tail” and Shivshankar Vijay Tail” are not only similar and identical but deceptive and their use amounts to violation of the Act. There is no separate registration in favour of the defendant. The plaintiffs have succeeded in establishing a prima facie case. The balance of convenience is also in their favour and they would suffer irreparable loss and injury in the event injunction is refused and the defendant is permitted to use the aforesaid deceptive trade names.

The aforesaid order has been challenged by the defendant in this appeal.

Parties have exchanged the necessary affidavits and further a supplementary affidavit has been filed on behalf of the defendant appellant.

Learned counsel for the parties agreed for deciding the appeal finally. I have heard Sri Gulrej Khan learned counsel for the defendant appellant and Sri M.N. Singh, learned counsel for the plaintiff respondents.

Sri Gulrej Khan, learned counsel for the def