ANSUL INDUSTRIES Vs. VINEET KUMAR

JUDGEMENT

(1.) The plaintiff/appellant in the suit filed by M/s. Shiva Tobacco Co., Ambala, suffered a compromise decree whereby the plaintiff has 'been restrained from directly or indirectly dealing in chewing tobacco under the trademark 'Udta Panchhi' and/or any other mark as may be identical and/or deceptively similar to the trade mark of the Shiva Tobacco Company, Ambala, namely 'Panchhi'. Under the decree, however, the Shiva Tobacco Company accepted and recognized the trade mark Udta' of the appellant herein. The appellant, before the said compromise decree was passed, had filed a suit i.e. CS(OS) No. 1166/2008 against the present defendant/respondent. In this suit, the appellant had also moved an application under Order 39 Rules 1 and 2 of the Code of Civil Procedure seeking injunction against the respondent restraining it from using the trade mark 'Udta Panchhi' in relation to the product-tobacco., An interim injunction was granted which was confirmed by the learned Single Judge after hearing both the parties. However, it is thereafter, that the aforesaid compromise decree was passed in the suit filed by Shiva Tobacco Company, Ambala.

(2.) In view of the aforesaid circumstances, the respondent herein moved an application under Order 39 Rule 4 of the Code of Civil Procedure for vacation of the injunction order, This application has been allowed by the learned Single Judge by the impugned order dated 26th March, 2010. Apart from the other reasons stated in the order, the. application was allowed on the following reasoning:

(3.) Learned Counsel, for the appellant could not dispute that in the suit filed by the Shiva Tobacco Company, Ambala, the plaintiff-appellant has been restrained from using the trade mark 'Udta Pahchhi'. In these circumstances, needless to state that it is not open to the plaintiff to seek , injunction against any third party restraining him to use the same trade mark 'Udta Panchhi for which the plaintiff-appellant itself is restrained. In view of this, we do not find any infirmity in the order passed by the learned Single Judge and this appeal is dismissed.