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Neutral Citation No. - 2023:AHC:197941

F.A.F.O. No.2170 of 2022

Salik Mukhtar And 4 Others

Vs.

M/S M.M.I. Tobacco Pvt. Ltd. And 2 Others

Reserved on 26.09.2023

Delivered on 13.10.2023

AFR

Court No. - 10

Case :- FIRST APPEAL FROM ORDER No. - 2170 of 2022

Appellant :- Salik Mukhtar And 4 Others

Respondent :- M/S M.M.I. Tobacco Pvt. Ltd. And 2 Others

Counsel for Appellant :- S.M. Iqbal Hasan,Sr. Advocate

Counsel for Respondent :- Mohammad Waseem,Arvind Srivastava

Hon'ble Kshitij Shailendra,J.

1.

Heard Sri S.M. Iqbal Hasan along with Sri Raghav Garg and Sri

Tarique Quasimuddin, learned counsel for the defendant-appellants and

Sri Ravi Kant, learned Senior Counsel, assisted by Sri Arvind Srivastava

and Sri Arvind Srivastava separately too, as learned counsel for the

plaintiff-respondents.

THE APPEAL

2.

This appeal under Order 43 Rule 1(r) CPC has been filed by the

defendants of Suit No.10 of 2021 (M/S. M.M.I. Tobacco Pvt Ltd and

another Vs. Salik Mukhtar and five others) challenging the order dated

21.09.2022, whereby the learned Additional District Judge, Court No13,

Varanasi has allowed the application seeking temporary injunction, being

Paper No.6-C, filed by the plaintiff-respondents and restrained the

defendant-appellants till disposal of the suit from manufacturing or selling

product namely, ‘Musa Ka Gul Super’ or any product with the deceptively

similar name and logo by which any common man could be deceived.

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F.A.F.O. No.2170 of 2022

Salik Mukhtar And 4 Others

Vs.

M/S M.M.I. Tobacco Pvt. Ltd. And 2 Others

BINDING EFFECT OF THE ORDER UNDER CHALLENGE

AND THIS ORDER

3.

Since the present appeal has arisen out of disposal of an

application seeking temporary injunction pending suit, the

observations and findings recorded in the present order would not be

treated as any final opinion on the merits of rival claims of the parties

as the same are yet to be decided on the basis of oral and documentary

evidence to be produced in the pending suit. It is well settled that the

findings recorded in an order granting or refusing injunction are to be

looked into only in connection with three basic ingredients, i.e. prima

facie case, balance of convenience and irreparable loss and any such

order does not affect final adjudication of substantive rights of the

parties. Therefore, the observations recorded in the present judgment

shall not affect the final adjudication to be made by the court below,

independently, on the basis of oral and documentary evidence led by

the parties.

T HE FAMILY TREE

4.

The record of this case contains discussion of various family

members of late Mohd. Musa, therefore, before discussing the factual

aspects of the case, it would be necessary to draw a family tree for

understanding inter-se relationship between the parties to the lis. It is

described as follows:-

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F.A.F.O. No.2170 of 2022

Salik Mukhtar And 4 Others

Vs.

M/S M.M.I. Tobacco Pvt. Ltd. And 2 Others

FACTS OF THE CASE

5.

The suit giving rise to the present appeal was filed by M/s

M.M.I. Tobacco Pvt Ltd represented through its Director, Mohd.

Nazish son of Mohd. Khalique, as plaintiff no.1 and Mohd. Nazish, in

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Md Musa

Md. Subedar + Zohra Bibi

Md. Islam

Yasmin

(Khalique

wife)

Md.

Khalique

Mukhtar

Alam

+

Shaheena

Mukhtar

Iftekhar

Alam

Imtiaz

Alam

Tara

Begum

Sitara

Begum

Husna

Ara

Anum

Ara

Jahan

Ara

Md.

Javed

Daughter

Daughter

Md.

Shahid

Md.

Danish

Md

Nazish

Sakil

Mukhtar

(son)

Sona

Mukhtar

(daughter)

Madeyah

Mukhtar

(daughter)

Md.

Kasif

Md.

Farjad

Mantasa

(daughter)

Areeba

Imtiaz

(daughter)

Md.

Hammad

Md.

Ammar

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F.A.F.O. No.2170 of 2022

Salik Mukhtar And 4 Others

Vs.

M/S M.M.I. Tobacco Pvt. Ltd. And 2 Others

his individual capacity, as plaintiff no.2 against six defendants, under

Sections 29, 134, 135 of the Trademarks Act, 1999 and Section 62 of

Copyrights Act, 1956. As per the plaint averments, the plaintiff-

respondent no.1 is a private limited company with the plai