JUDGMENT

Rachhpal Singh, J. - This Is a second appeal by the plaintiffs-appellants arising out of a suit for a declaration to the effect that the plaintiffs are entitled to rise "Chand Tara" mark on biris (cigarettes) manufactured by them and the defendant was not entitled to refrain them from using this trade mark. They also claimed to recover Rs. 200 as damages.

2. The suit was decreed by the first Court. The defendant preferred an appeal to the court of the Subordinate Judge. He allowed the appeal and dismissed the suit of the plaintiffs. The plaintiffs have come up to this Court in second appeal.

3. The plaintiffs carry on business of manufacturing 'biris' at Sihora in the jubbulpur District. They have an agency in Aligarh District for the sale of these 'biris'. Their 'biri' packets bear the trade mark of "Chand Tara", that is crescent and star. The lower Appellate Court has found that the firm of the plaintiffs started then business some time in 1927 and since, they have, been using the above mentioned trade mark. The defendant has also been manufacturing 'biris' at Jubbulpur since at least 1919. Their packets also bear the trade mark of "Chand Tara". The learned Subordinate Judge has also found it established that, there are in the market, at least one 'dozen brands of biris bearing Chand Tara." trade mark.

4. The defendant claimed to be exclusively entitled to use the aforesaid trade mark and lodged a complaint against the plaintiffs in the court of the City Magistrate of Lucknow u/s 482 and 486 of the Indian Penal Code for infringing their trade mark. There upon, the plaintiffs instituted the present suit for declaration and damages against the defendant.

5. The principal question for our consideration is whether the plaintiffs are entitled to the declaration claimed by them in these terms:

The court may be pleased to declare that the plaintiffs have got the right to use the trade mark and design 'A' and that the defendants have no right to restrain the plaintiffs from, using the same.

6. I am of opinion that the court should not grant, in the excercise of its discretion, the declaration prayed for Section 42 of the Indian Specific Relief Act provides that any person entitled to any legal character, or to any right as to any property may institute a suit against any person denying or interested to deny his title to such character, or right. Now what do the plaintiffs ask? They ask that the court should declare that they have the right to the use of the trademark of "Chand Tara." In the plaint there is no such suggestion, and no such case has been made out, that the right to the use of the aforesaid trade-mark is "the exclusive right of property" which they have acquired to the exclusion of every one else. The plaintiffs say that they use the trademark of "Chand Tara" on their 'biri' packets. They are entitled to use this mark so long as they do not infringe the rights of others. There is no necessity for them to get a declaration that they have the right to the use of any particular trade mark. In India, under the law as it stands now, every one has the right to use any kind of trade, mark he likes, so long as he does not infringe the right of others already acquired. The second prayer of the plaintiffs is that it be declared that the defendants have no right to restrain them from using the above-mentioned trade mark. This implies that the defendant has no right to the trade mark which would be infringed by the defendant using the same. In my opinion, a declaration of this kind should, not be granted. In a Burma case in which the facts were very similar to the one before this court Muhammad Abdul Kader v. Finlay Fleming and Co. 111 Ind. Cas. 1356 : 6 R. 291 : AIR 1928 Rang 256; Chari, J. made the following observations with which I entirely agree:

It is for the person whose trade mark is infringed to complain of the infringement. Such a person has two remedies open to him He can file a complaint in Criminal Court, or he can ge