( 1 ) THIS appeal is directed against the order D/- 9-5-2001 in Civil Suit No. 6-A/2001 by First Additional District Judge, Bhopal, allowing the plaintiffs/respondents' application under O. 39, Rr. 1 and 2 of C. P. C. for temporary injunction, restraining the defendants/appellants from using design of label marked as Ex. P-1/b by the trial Court or any other label of similar design, to the trade mark got registered by the plaintiffs under registration No. 469805.

( 2 ) IT is not in dispute that, initially the appellant No. 1 as well as respondents and their predecessors were partners of the firm known as "m/s. Kale Khan Mohd. Haneef", which carried on the business of manufacture and sale of 'bidis'. Subsequently, appellant No. 1 was removed from the said partnership and started his own business of manufacturing and selling of 'bidis'. Presently the respondents Nos. 2 to 11 are the partners of respondent No. 12 firm "m/s. Kale Khan Mohd. Haneef". It is also not in dispute that the plaintiffs/respondents have got registered trade mark placed on record of this appeal as label Annexure O-1, under registration No. 469805, as ordered by Registrar of Trade Marks, Bombay. The defendants/appellants have filed an appeal before the Bombay High Court, against the aforesaid order of the Registrar. The said appeal is pending. Another trade mark was also got registered in the name of said partnership "kale Khan Mohd. Haneef" under registration No. 199399. It appears that some other trade marks were also got registered by the original firm. Parties are involved in litigations involving their right to use the said trade marks.

( 3 ) THE plaintiffs/respondents brought the present suit complaining infringement of their registered trade mark Annexure O?1, registered under registration No. 469805. The aforesaid complaint was on account of user by defendants/appellants of trade mark, which was marked by the trial Court as label Ex. P-1/b and placed in the record of this appeal as label Annexure O-5.

( 4 ) THE learned trial Court after considering the similarities between the two labels i. e. Annexure O-1 and Annexure O-5 observed that, a common man using the commodity - 'bidis' is likely to be misled by label Annexure O-5, which is deceptively similar to label Annexure O-1, the registered trade mark of plaintiffs/respondents. Accordingly, the prayer of plaintiffs/respondents for grant of temporary injunction, was allowed and the defendants/appellants were restrained from using the trade mark label Annexure O-5 (marked as Ex. P-1/b by the trial Court ).

( 5 ) LEARNED counsel for appellants submitted that the dis-similarities between the two labels i. e. , Annexure O-1 and Annexure O-5 have not been noticed by the trial Court while passing the impugned order. It has been submitted that the appellants did not infringe the registered trade mark as there are various dis-similarities between the two labels. It has therefore been submitted that there was no justification for granting temporary injunction in favour of plaintiffs/respondents.

( 6 ) IT may be noticed that S. 28 (1) of the Trade and Merchandise Marks Act, 1958 (hereinafter referred to as 'act' for short) provides that, the registration of a trade mark gives the registered proprietor of the trade mark the exclusive right to the use of the trade mark in relation to the goods in respect of which the trade mark is registered and to obtain relief in respect of infringement of the trade mark in the manner provided by the Act.

( 7 ) SECTION 29 of the Act lays down as to what amounts to infringement of trade mark and the remedy available to the registered owner on infringement. It reads :- infringement of trade marks- (1) A registered trade mark is infringed by a person who, not being the registered proprietor of the trade mark or a registered user thereof using by way of permitted use, uses in the course of trade a mark which is identical with, or deceptively similar to, the trade m