JUDGMENT :

1. This first appeal has been filed by the plaintiff being aggrieved of judgment and decree dated 25.10.2018 passed by learned Additional District and Sessions Judge, Varanasi in Original Suit No.31 of 2017 dismissing an application under Order XXXIX Rule 1 and 2 Civil Procedure Code, 1908.

2. Brief facts of the case are that plaintiff-appellant carries on business under the trade mark ''MODI' and it is the case of the appellant that they are using this trade mark since 1986 whereas the defendant deceptively uses trade mark ''STAR MODI' which is not only subsequent but attempts to promote their products at the cost of the product of the plaintiff-appellant and therefore, prayed for injunction against the defendants from using such trade mark.

3. It is submitted that learned trial court failed to appreciate the facts of the case in correct perspective and has dismissed the application for injunction under Order XXXIX Rule 1 and 2 C.P.C. in an arbitrary and casual manner. It is prayed that impugned order be set aside and defendants be restrained from using trade mark ''STAR MODI'.

4. In the present case, dispute is that plaintiff-appellant has been using trade mark ''MODI' sin