( 1. ) BY impugned order dated 06. 04. 2004, the learned District Judge, Mandleshwar in his Civil Suit No. 8-A/2004 (M. S. S. Food Products v. Dhariwal Industries Limited and Anr.) has allowed a temporary injunction application filed under Order 39 Rules 1 and 2 of the Code of Civil Procedure (Code for short) by the respondent and has dismissed in application under Order 39 Rule 4 of the said Code filed by the appellants.

( 2. ) AS per plaint the respondent manufacturers of gutkha, pan masala and supari mix under trade name of malikchand since 1959-60 and have been selling these goods at Maharashtra, Madhya Pradesh, Karnataka, Gujarat and other parts of India. Ramprasad was father of Pabhudayal Choube who had started supari and ayurvedic pan masala medicine business in 1959-60 in the name of malikchand upto May, 1986. He assigned his trade mark on 26. 04. 1986 to Ashok Sharma who also assigned his trade mark to M/s. Tulsi Stores on 01. 04. 1992. Business was continued by him in the name of malikchand till 1996 when it was sold to the respondent in 1996. The respondent has applied for registration of such trade name under the Trade and Merchandise Marks Act, 1958 (Act for short) vide Memo No. 717630 dated 23. 09. 1996. As per plaint appellants are selling their gutkha, pan masala and other goods in the name of manikchand, such name is not registered even then sign (R) signifying its registration is being used. It was claimed that the appellants are passing off their inferior goods under phonetically and deceptively similar trade name and was causing damage to the reputation and business of the respondent. It was claimed that cause of action had arisen on 13. 03. 2004 at Mandleshwar when Nitesh Wadhwani came to know that goods were being sold in the name of manikchand. IA No. 1 was filed under Order 39 Rule 3 of the Code for ex-parte injunction. It was allowed on 16. 03. 2004. IA No. 2 was filed under Order 39 Rules. 1 and 2 of the Code with the affidavits of Nitesh Wadhwani, Anil Kumar Mishra which was hotly contested but was allowed by the impugned order.

( 3. ) ON the other hand, the appellants hotly contested such civil suit and filed the detailed written statement claiming that they had filed a Civil Suit No. 574/2004 in the High Court of Bombay seeking injunction. According to them the present civil suit is a counter blast to the same. The respondent has suppressed the factum of such civil suit. It was claimed that all the deeds of assignment and other documents submitted by the respondent have been recently fabricated and forged to prepare a false case for their suit. According to them other papers relating to central excise department, advertising agencies with publicity material have also been prepared to strengthen their false case. It was claimed that appellants is a well known concern in the field who is working under the trade name of manikchand since year 1961. It was claimed that the respondent has been trying to take benefit of their well known trade mark. manikchand gutkha and pan masala sachets are sold @ Rs. 5/-, Rs. 3/- and 2/- while sachets of the respondent arc sold at the price of only 50 paise per sachet. No one marketing or dealing in the business of gutkha, pan masala or zarda can be ignorant of the name of manikchand and the claim that the respondent could come to know about such name only on 13. 03. 2004 has been false. It is claimed that name of manikchand is well known through out India and abroad. It is also claimed that the appellants had established its huge business and has invested large amount of money in advertising and sale promotion schemes. On the other hand the respondent is a least known concern who has invented a false trade name malikchand to pass off his inferior quality goods in well reputed trade name of the appellants. Injunction application has also been replied to by the appellants on similar allegations. Appellants had filed an affidavit of Ajit Jain, the power of attorney