Shiv Dayal Shrivastava, J.

This appeal arises Prom an order passed by the Additional District Judge, Bhopal, setting aside the ex parte injunction which he had previously passed.

The Appellants Abdullahkhan, Gulam Mohommad, Yakubkhan and Respondent No. 1 Mohommad Ismail, are all brothers, being sons of one Sahebkhan who died in 1948. Originally, Sahebkhan and his four sons constituted a firm and started Bidi business sometime about the year 1918 and adopted a trade mark styled as 'Nag Chhap'. It is alleged by the Plaintiffs that in the year 1943 Sahebkhan and his sons became separated by a private arrangement which was reduced to writing and was signed by all of them. Thereafter Sahebkhan and his three sons, the Appellants, formed a firm and continued the Bidi business with the same 'Nag Chhap' trade mark. In August 1948, Sahebkhan died and the three brothers (the Plaintiffs) continued the business under a fresh agreement of partnership. It is also alleged by the Plaintiffs that the 'Nag Chhap' trade mark was registered in 1948 at Bombay under the Indian Trade Marks Act, in the name of the Plaintiffs and it was exclusively used by them, and that the Defendant Mohommad Ismail had no concern with that trade mark. However, in the year 1954, the Defendant started a separate business of manufacturing Bidi at Sagor and began to use the same trade mark. This fact having come to the Plaintiffs knowledge, they served a notice to Mohommad Ismail, upon which he stopped that business. But the Plaintiffs eventually discovered that the Defendant No. 1 secretly shifted his business to Bhopal in 1955 and again used the 'Nag Chhap' trade mark, in conspiracy with Defendant No. 2, whereupon the Appellants instituted the present suit on January 25, 1956. They also made an application for issuance of a temporary injunction under Order 39, Rule 2, Code of Civil Procedure code, to restrain the Defendant from using the 'Nag Chhap' trade mark during the pendency of the suit.

The learned trial Judge at first passed an ex parte order but on the objection of the Defendant, the same has been revoked and it is against the subsequent order that the Plaintiffs have preferred this appeal.

In a matter like this, I have to see whether the discretion exeriesed by the learned trial Judge was so erroneous as to call for interference in appeal.

At this stage, I do not propose to go deeper and find out the respective rights of the parties; but prima facie, it seems that in view of the separation agreement dated November 23, 1943, and in view of the fact that the trade mark was registered at Bombay in 1948 in the name of the Plaintiffs, they are really the owners of the trade mark. They have thus a prima facie and presentable case. Shri Khan, learned Counsel for the Respondent contends that even on the Plaintiffs' own showing their father was also a joint proprietor of the trade mark and, therefore, on the death of Sahebkhan, the Defendant also succeeded, just as the Plaintiffs did, to the rights which Sahebkhan had. Here again, I will refrain from expressing any opinion on the question of law which is thus being agitated. Suffice it to say that prima facie, the Defendant did not inherit the right of using the trade mark by starting a separate business and adopting the same trade mark. Here is not a case where the Defendant wanted to participate in the business of his brothers by virtue of his right of succession. Shri Khan has not been able to satisfy me by any law or authority that the Defendant could start a new business and use the trade mark of which the Defendant's father was a co-proprietor with the Plaintiffs. I would guard myself against discussing this question any further so that a fair trial in the lower Court may not be prejudiced.

Then Shri Khan contends that the Plaintiffs disentitled themselves for the equitable relief because of latches. He invites my attention to the averment in the plaint that the Plaintiffs gave a notice to the Defendant in 1954