AGARWALA, J. :- This is a plaintiffs appeal arising out of an order made on an application for the grant of an interim injunction. The plaintiff-appellant, a limited Company, is a manufacturer and seller of flash lights, dry cell batteries for use in flash lights and other articles. It carries on its business throughout India. It is the owner of the trade mark "Eveready" which is registered in the register of trade marks under Nos. 6727 and 6728. The "Eveready" flash lights which are in dispute in the present case have impressed on their bottom end caps the word "Eveready". The trade mark "Eveready" is in block capital letters arranged in a distinctive pyramidal form. There are five groups of distinctive parallel indentations each group comprising of three parallel lines running vertically on both sides of the trade mark. The said groups are spaced and arranged in a distinctive manner with the words "made in U.S.A." appearing underneath the lower group of indentations. The shell of flash lights has also its own scheme of colour and chromium plating.

2. The defendants are the manufacturers of flash lights with the trade mark Lit Ready embossed upon them and have placed them on the market for sale. The plaintiffs case is that the get-up of the defendants flash light cases bears a close resemblance to the get-up of the plaintiffs lash light cases and that the ignorant and illiterate Section of the public in India is very likely to be confused and the goods of the defendants may pass off as the goods of the plaintiff causing great injury to the plaintiff. The plaintiff, therefore, sued for the grant of a permanent injunction restraining the defendants from selling the disputed flash lights in the market and for other reliefs and also applied for a temporary injunction to the same effect.

3. The defendants case is that the defendants flash lights do not infringe the plaintiffs trade mark and cannot be taken to pass off as the plaintiffs good.

4. The plaintiffs application for the grant of a temporary injunction has been partly allowed by the lower Court. That Court has directed the defendants either not to place the disputed Rash lights on the market or if they did so, to disclose the sales thereof in detail. The defendants were further directed that they should not manufacture any more Litready torch lights unless they were willing to show on an affidavit to that Court before manufacturing as to how many flash lights they propose to manufacture and when. The learned Judge in the course of his judgment observed that the petitioner could not claim any property in the shell of the flash lights as shells similar to those manufactured by the plaintiff were manufactured by other manufacturers and were for sale in the market. Moreover, the fact that there was phonetic similarity between EveReady and LitReady would not invest the plaintiff with a right to claim an interim injunction. Against this order the plaintiff has come up to this Court in appeal.

5. It has been urged by the learned counsel for the plaintiff-appellant that the learned Judge of the Court below was not correct when he made observations with regard to the phonetic similarity being of no avail to the plaintiff and with regard to the plaintiff not possessing any property right in the shell of the flash lights. Learned counsel has urged that the suit was not merely for the breach of the trade mark but also for the damage caused to the plaintiff by the defendants passing off his goods as those of the plaintiff.

6. In our opinion, what we have to see in a case of this kind, when an interim injunction is sought during the pendency of the suit before the rights of the parties are finally decided, is first whether a prima facie case has bean made out by the plaintiff in respect of his claim, and secondly, whether the balance of convenience demands that the injunction should be issued.

7. So far as the prima facie case is concerned, without committing ourselves finally in the