The facts of the case in brief are that one Niyamat Ullaha Khan was running his business of Tobacco and Khaini under the trademark in the name and style of "Nawab Dulha Khan Khaini" and when he died in 1992 his sons started the said business adding some additional words in the said trademark.The respondent-plaintiffs started their business of Tobacco with the trademark in the name and style of "Ped Chhap Nawab Dulha Khan Khaini" w.e.f. 1993, whereas the appellant-defendant started his business with the trademark in the name and style of "Chand Khajoor Chhap Anwar Dulha Khan" with emblem of Rais Dulha Khan, Bareilly depicting Central Excise Registration Certificate No. 8/R-1 BLY/93 on the wrappers.JUDGMENT V.C. Misra, J.Heard Sri S.K. Verma, Senior Advocate assisted by Sri Siddarth Verma & Sri Pulak Ganguli, learned Counsel appearing on behalf of the appellant- defendant and Sri M.A.Qadeer & Mr. D.S. Misra, learned Counsel appearing on behalf of respondents No. 1 and 2-plaintiffs.The present appeal has been filed by the appellant-defendant challenging the order dated 29.7.2005 passed by the District Judge, Bareilly in Original Suit No. 6 of 2005 allowing interim injunction application of the plaintiffs-respondents No. 1 and 2 moved under Order 39 Rule 1 & 2 of the Code of Civil Procedure restraining the defendant-appellant from manufacturing, marketing and trading the Khaini and Tobacco with the name and style of "Bargad Fed Chhap Asali Nawab Dulha Khan".The respondents-plaintiffs filed Original Suit No. 6 of 2005 seeking injunction on the ground that the appellant-defendant changed his trademark and caption and started his business with effect from February, 2005 in the name and style of "Bargad Ped Chhap Asli Nawab Dulha Khan Khaini" on the wrappers in which the words 'Bargad' and 'Asli' were written in very small letters and was in very much resemblance with the trademark of respondents-plaintiffs causing deception, misguiding the customers which resulted in damaging and affecting their business.In the plaint it has been stated that the trade mark "Ped Chhap Nawab Dulha Khan" of the plaintiffs- respondents was registered at number 611689 (subsequently corrected as 611389) under the Trade and Merchandise Marks Act, 1958 and the Copyright Act, 1957 and the plaintiff No. 1- respondent Taj Mohammad Khan assigned the said trade mark and Copyright "Ped Chhap Nawab Dulha Khan" to plaintiff No. 2-respondent Mohd. Imran Khan by means of assignment deed dated 15th December, 2003 and since then Mohd. Imran Khan plaintiff No. 2 has been running his business as a assignee of Taj Mohammad Khan (plaintiff No. 1 -respondent).It has also been stated that the plaintiffs have a large volume of sales of their product under the registered trade mark "Ped Chhap Nawab Dulha Khan" which was carved, designed, coloured and written in a distinctive style on the wrappers for many years and their customers as well as the traders have identified and recognized the goods as such being the exclusive merchandise of the plaintiffs and none else.The plaintiffs are the creator and the author of the artistic work, design, style and colours of lettering of the said trade mark and are the legal owners, proprietors and user of the same and they have been continuous user thereof and have thus acquired exclusive right to use its registered trade mark under the Copyright Act in respect with their goods.In the plaint it has also been alleged that the appellant-defendant by using identical and or deceptively similar mark or artistic work as referred to above started his business from February, 2005 which is bound to cause confusion and deception in the mind of unwary class of customers amounting to falsification of plaintiffs' registered trade mark and to cause heavy financial losses to the plaintiffs-respondents to which the appellant-defendant was not entitled to under law.It has also been asserted that purchasers of Khaini and tobacco are mainly illiterate public who are being confused, misled and deceived by purchasing the inferior quality of Khaini and Tobacco manufactured by appellant-defendant knowingly and willingly and without consent of the plaintiffs-respondents and thus the appellant-defendant violated the plaintiffs copyrights in the artistic work, lettering and colouring etc in the registered trade mark and has committed offences punishable under Section 78 and 79 of the Trade And Merchandise Marks Act, 1958 (hereinafter referred to as 'the Act No. 43 of 1985') and Section 63 of the Copyright Act, 1957 and under Sections 420, 485, 486, 487 of the Indian Penal Code.The appellant-defendant did not accede to the request of the plaintiffs-respondents and did not refrain from manufacturing, marketing and trading their products of Khaini and Tobacco with falsified mark "Ped Chhap Nawab Dulha Khan" which was causing irreparable loss and injury whereas on the other hand it did not affect the appellant-defendant at all in any manner.The plaintiffs-respondents alongwith plaint had filed an application under Order 39 Rule 1 and 2 of the Code of Civil Procedure supported with an affidavit seeking temporary injunction upon which an exparte interim order was granted.The appellant-defendant No. 1 in rebuttal to the said injunction application filed his objections/counter affidavit before the trial court.In para 1 it is stated that the alleged trademark 'Ped Chhap Dulha Khan' was not registered in the Trade Mark Office by the respondent-plaintiffs and the number mentioned as 611389 was only application number and not the registration number.It was also asserted that the appellant-defendant No. 1 had moved an application for registration before the trademark office for registration of his trademark in the name and style of 'Asli Nawab Dulha Khan Ped Chhap'.After hearing learned Counsel for the parties and perusal of the record the trial court passed an order restraining the appellant-defendant from using the trade mark 'Bargad Ped Chhap Asali Nawab Dulha Khan Khaini Tambakoo Choona Sahit' for the purpose of manufacturing marketing and trading the Khaini and Tobacco till the pendency of the suit.Thus, the suit itself was barred by Section 124 of the Trade Marks Act, 1999 (hereinafter referred to as 'the Act, 1999').In the result, the appeal fails and is dismissed accordingly.No order as to costs.

Cited provisions: Section 420 in The Indian Penal Code