MADAN LAL JAIN Vs. BABU DI FANCY HATTI

JUDGEMENT

(1.) This is an appeal from the order dated 30-3-1991 passed by the ADJ, Delhi in Civil Suit No. 754/1990 under Order 39 Rules 1 & 2 Civil Procedure Code restraining the appellant/plaintiff from manufacturing, selling, offering for sale the face cream and cosmetics under the trade mark name of `clear fresh' or `clear face' or any other deceptively similar trade mark.

(2.) The facts are as follows: the appellant/plaintiff filed a suit for rendition of account and for permanent injunction against the respondents restraining them from manufacturing, selling, offering for sale, directly or indirectly dealing in cosmetics or any other cognate or allied goods under the trade mark "Real" or any other deceptively similar trade mark or from doing any other thing as is likely to lead to passing off its goods and business as the goods and business of the plaintiff. Alongwith the plaint, the appellant also filed an application under Order 39 R 1 & 2 CPC. On 22-5-90, learned trial judge granted ad interim injunction in favour of the appellant. The suit was resisted by the respondent. The respondent No. 2 filed the written statement and a counter claim. The respondent No. 2 also filed an application under Ord 39 R 4 Civil Procedure Code for vacating the ad interim injunction granted by the trial court. Alongwith the counter claim, the respondent also filed an application under Order 39 R 1 & 2 Civil Procedure Code for a temporary injunction restraining the appellant from manufacturing, selling, offering for sale or otherwise dealing in the cosmetics goods under the trade marks "clear fresh" and `clear face' or under another identical and/or similar trade mark/carton as those of the respondent No. 2. By the impugned order, the learned trial judge vacated the ad interim injunction order dated 22-5-90 and allowed the respondents application for interim injunction. Feeling aggrieved, the appellant/plaintiff has preferred this appeal under Order 43 Rules 1, CPC.

(3.) It is well settled that the granting of ad interim injunction is purely within the discretion of the Court but the discretion has to be exercised in accordance with the sound judicial principles. Ordinarily, it is not open to the appellate court to substitute its own discretion for that of the trial court but if it appears to the appellate court that in exercise of its discretion the trial court has acted capriciously or has adopted an unjudicial approach then it would be open to the appellate court to interfere with the trial court's discretion. The principles which govern the exercise of the discretion are that the party claiming ad interim injunction should establish that it has a prima facie case, that if it is not granted it is likely to suffer a greater mischief and that interference by the court is necessary to protect it from an irreparable injury.