M. HIDAYATULLAH, C. J.

( 1 ) THIS appeal is by the plaintiff against an order refusing a temporary injunction and has been filed under Order 43, Rule 1 (r) of the Code of Civil Procedure. The matter arises out of a suit for damages and permanent injunction against the respondents-defendants, who, it is alleged, are infringing a registered trade mark of the plaintiff-firm. This trade mark is affixed as a label containing the picture of a rabbit and as tissue paper (jhilli) on the bidis manufactured by the appellant. The trade mark represents the picture of a rabbit (khargosh) with the usual inscription showing who the manufacturers of the bidi are. The impugned label and 'jhilli' represent not to rabbit but a squirrel and the label is described as 'gilhari Chhap'. The tissue paper is printed in the same ink and contains respectively the picture of a khargosh and a gilhari. The inscriptions, however, are different inasmuch as in the impugned jhilli they are in English and are placed in the form of a box around the picture of the gilhari. In the 'jhilli' of the plaintiff-firm a picture of khargosh is enclosed in a scroll and the writing is in hindi.

( 2 ) THE plaintiff-firm claims that it got the trade mark 'khargosh Chhap' registered under the Indian Trade Marks Act, 1940. It claimed that the label of the defendants was sufficiently similar to cause confusion in the mind of an unwary purchaser and as such the defendants must be prohibited from using its labels and jhillis and also ordered to pay damaged for loss thus occasioned to the plaintiff-firm. The trial Court declined to grant a temporary injunction on the ground that the labels were distinct and on the ground that in view of the decision of this Court reported in Beniprasad v. Hindustan Lever Ltd. , Bombay, 1957 MP LJ 676: (AIR 1958 MP 348) (A), no temporary injunction could issue. The learned Judge also took into account in passing the evidence furnished by the declaration made in the year 1936 by the defendants before a Justice of the Peace showing that the 'gilhari Chhap" label was their trade mark. Though the learned judge in the Court below did not mention specifically that he was persuaded by the provisions of Section 25 of the Indian Trade Marks Act, the reasoning is manifest enough to show that he so did.

( 3 ) BEFORE us the question has arisen whether Section 25 comes to protect the defendants in their user of the label 'gilhari Chhap'. The provisions of that section are as follows : 'nothing' in this Act, shall entitle the proprietor or a registered user of a registered trade mark to interfere with or restrain the use by any person of a trade mark identical with or nearly resembling it in relation to goods in relation to which that person or a predecessor in title of his has continuously used that trade mark from a date prior- (a ). . . . . (b) to the registration of the first-mentioned trade mark in respect of those goods in the name of the proprietor or a predecessor in title of his, whichever is the earlier, or to object (on such use being proved) to registration of that identical or nearly resembling trade mark in respect of those goods under Sub-section (2) of Section 10. The learned counsel for the appellant contends on the authority of two cases reported in reinhardt v. Spalding, 1880-49 LJ Ch 57 (B) and Subbiah v. Kumarval nadar, AIR 1946 PC 109 (C), that a mere declaration in respect of a label before a Justice of the Peace in the year 193 (3 was not sufficient to discharge the burden laid by Section 25 upon a defendant who wished to set up prior user of a label.

( 4 ) THE learned counsel for the appellant contends that some more evidence was necessary to prove a continuous user of the label from the time of the declaration to the time the label of the plaintiff in the case was registered under the present act. He pointed out that on more than one occasion the defendants had attempted to copy the label of the plaintiff or fabricate a label similar ther

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