RAFIQ Vs. MODI SUGAR MILLS LIMITED

JUDGEMENT

(1.) This revision petition under section 115 of the Code of Civil Procedure has been filed by the defendants and is directed against the order of the Additional District Judge dated 1st of August, 1968 by which the learned Judge declined to stay the suit, for injunction and other reliefs arising out of an alleged infrigngement of a registered trade mark of the plaintiffs respondents under section 111 of the Trade and Merchandise Marks Act of 1958. (hereinafter referred to as the Trade Marks Act).

(2.) The brief facts of the case are that on 26th March, 1962, the plaintiffs instituted a suit in the Court of the District Judge, Delhi against the defendants for a permanent injunction, rendition of accounts and damages on the allegations that the plaintiffs were manufacturing and selling lanterns and torches under their trade mark "SUN BRAND" which was registered as No. 164198 on 19th May, 1961 onwards and that the defendants had started manufactur May 1954 and it had been renewed for a further period from 19th ing and selling lanterns under the trade mark "SUNSHINE" which was a colourable immitation of the plaintiffs' registered trade mark and the plaintiffs alleged that the defendants had infringed their trade mark and were also passing off their good as those of the plaintiffs and thereby causing loss and injury to the plaintiffs.

(3.) The defendants contested the suit of the plaintiffs on merits and raised a number of objections and they denied their liability in the action. It is, however, significant that the defendants did not raise any plea to the effect that the registered trade mark of the plaintiffs had been borne on the register wrongly and that the same had to be expunged under section 56 of the Trade Marks Act.