DOKI ADINARAYANA SUBUDHI Vs. DOKI SURYA PRAKASH RAO

JUDGEMENT

(1.) The appellant as plaintiff brought Original Suit No. 2 of 1978 for a declaration that the defendant-respondent has no right to use the plaintiffs trade mark in respect of the Masala (chewing tobacco) branded as "Bharat Vikhyat Khetaki Khara Masala No. 666" of which the plaintiff claimed to be the registered owner under the Trade and Merchandise Marks Act and the Copyright Act. The plaintiff also filed an application for issue of a temporary injunction restraining the defendant from infringing his right to the trade mark. After hearing the parties, the learned District Judge rejected the prayer for temporary injunction by order dated 4-10-78 on the finding that even though the plaintiff had prima facie title and exclusive right to the use of the trade mark, he having suppressed the material fact of a settlement deed dated 12-11-63 and the fact of association of the defendant in the business was not entitled to the grant of a temporary injunction.

(2.) Aggrieved by the order, the plaintiff preferred this Misc. Appeal which came up for admission and hearing on 1-11-78. In course of hearing of the appeal, Mr. R. Mohanty, the learned counsel for the appellant and Mr. C.V. Murty, the learned counsel for the respondent agreed that the appeal be disposed of on the following terms :-

(3.) By order dated 1-11-78, this Court disposed of the appeal on the above terms and directed the District Judge, Berhampur to dispose of the suit within two months from that date. On 8-11-78, Mr. C.A. Rao, Advocate for the respondent filed an application for modification of the order dated 1-11-78 contending, inter alia, that the respondent on being informed of the orders of this Court expressed his unwillingness to give an undertaking as envisaged in the said order and that the order passed by this Court was not in accordance with the submissions at the hearing. On 20th Dec., 1978, Mr. Asok Das. the learned counsel appearing for the respondent submitted that he would not press the allegation in the respondent's petition dated 8-11-78 to the effect that the order passed by this Court was not in accordance with the submissions made in the Court and filed a memorandum to that effect. He. however, contended that the respondent was not consulted by Mr. C.V. Murty, Advocate about the terms of agreement on the basis of which the appeal was disposed of.