S.K. KULSHRESTHA, J.

( 1. ) THIS is defendants appeal under Section 96 of the Code of Civil Procedure against the judgment and decree dated 7/3/2007, passed by the learned 1 st Additional Sessions Judge, Mandleshwar (West Nimar) in Civil Suit No.4-A/2004.

( 2. ) The suit relates to the passing off by the defendantslabel having phonetic similarity i.e., "MALIKCHAND GUTKHA AND PAN MASALA" with "MANIKCHAND PAN MASALA" of the defendants (appellants). At the outset, it may be noted that it is a mammoth fight between the two business tycoons; each claiming prior user than the other of the mark in question. Several pleas have been raised but the first and foremost plea raised by the plaintiff respondent relates to an interlocutory order of temporary injunction which has acquired finality in relation -to the temporary injunction under Or. 39 R. 1 and 2 of the Code of Civil Procedure. The learned counsel for the respondent has, therefore, contended that th re having been no change, not even a full stop or comma, the u/s between the parties is no longer res Integra and, therefore, the judgment and decree impugned do not call for any interference. He has referred to certain dates to expatiate his submissions with regard to the decree having been passed on the same material as obtained at the stage of interlocutory order of temporary injunction.

( 3. ) It has been urged that on 11/5/2004, this Court directed disposal of the suit within six months, but on the matter having been carried further to the Supreme Court, by order dated 25/2/2005, the direction was reaffirmed, but from the date of the order. The case was adjourned thrice on one ground or the other. It was stated that on 10/1/2005, the matter was fixed for cross examination on 29/1/2005, but although the case was called four times on the said date, the counsel for the appellant appeared at the fag end of the day and did not cross examine the witnesses. In the above factual scenario, the case was adjourned to 2/2/2005 and thereafter to 7/2/2005 and then to 11/2/2005. On 8/2/2005 an application filed by the defendants under Section 10 of the CPC was heard and posted for 11/2/2005. By this application, the defendants sought transfer of the suit to Bombay but on 11/2/2005 again the appellant appeared at the fag end of the day at 4:20 p.m. and arguments were advanced till 6:00 p.m.. The case was adjourned to 15/2/2005 then to 21/2/2005, then to 22/2/2005 and on 22/2/2005 it was posted for cross examination of the witnesses on 28/2/2005.

( 4. ) On 28/2/2005, Mr. Rohit Gupta, Advocate, after arguing applications under Or. 7 R. 11 and Or. 7 R. 14 sought adjournment but when he was directed to cross examine the witnesses, he stated that it would not be possible for him to cross examine the witnesses and the Court may proceed in the manner it desired. It was on the basis of this statement that the case was closed with regard to the right of cross examination.

( 5. ) On 17/3/2005, the case was Fixed for remaining evidence but since appellant did not appear, after hearing final arguments, the case was closed for judgment. It was in this background that the judgment and decree were passed ex-parte. All these dates have been placed on record to appreciate the arguments of the learned counsel for the plaintiffs that not even a full stop or comma was changed after the judgment of the Supreme court in relation to the temporary injunction passed in Dhariwal Industries Ltd., and another Vs. M.S.S. Food Products (2005) 3 SCC 63.

( 6. ) Before embarking upon consideration of other contentions of the parties in this appeal, it would be apposite to refer to the judgment in Dhariwal Industries Ltd., (supra). After considering the factual matrix of the case, the apex Court held that prima facie it appeared that the mark "MALIKCHAND" was being used, though not much publicised by the original user leading to the alleged acquisition of right to use the mark by the plaintiff. This aspect has not undergone a