Mohammad Yusuf Abul Gaffar, Prop. ... vs M/S Laxmi Udyog, Akola
2017 Latest Caselaw 6565 Bom

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        IN THE HIGH COURT OF JUDICATURE AT BOMBAY,

                         NAGPUR BENCH : NAGPUR



Appeal against Order No. 27 of 2017 

Appellant                :          Mohammad Yusuf  Abdul Gaffar, aged about

                                    34 years, Occ: Business, Proprietor of New 

                                    Dinar Trading Company, resident of Ganga

                                    Nagar, Akola

                                    versus

Respondent               :          M/s Laxmi Udyog, having business at Plot

No. M-224, Phase-IV, MIDC, Akola

Shri S. S. Sarda, Advocate for appellant

Shri N. R. Tekade, Advocate for respondent

Coram : S. B. Shukre, J

Dated : 28th d August 2017

Oral Judgment

1. In view of notice dated 12th July 2017 indicating final

disposal, admit. Heard finally by consent of parties. Since the appeal is

against the interim order, there was no question of sending for record and

proceedings.

2. The issue involved in this appeal is about the prima facie

view taken by the trial Court regarding the claim of the appellant/original

plaintiff that fafda powder and other products being sold by the

respondent by using the registered trade mark and labels of the appellant

amount to passing of faction in law, they being deceitfully similar to the

one used by the appellant/plaintiff.

3. Suit is yet to be decided on merits. It is well settled law that

an appeal filed against an interlocutory order as the one impugned in this

appeal is an appeal against the discretion exercised by the trial Court

and, therefore, the job of the 1st appellate court becomes sometime

difficult in deciding the appeal. This is all the moreso here as the issue

involved in the present appeal, whatever may be the final decision in the

appeal, if decided, the decision, in all probability is likely to affect either

of the parties one way or the other. Therefore, if the parties are willing to

adopt a middle course, and the parties have shown this willingness, I am

of the view that this course, one of expeditious disposal of the suit on

merits could be taken. This course is, as said earlier, acceptable to both

the sides although learned counsel for the appellant submits that there

should be some prohibition imposed upon the respondent from selling

the offending product by using the present labels in respect of which

grievance has been raised in the suit. Learned counsel for the respondent,

on instructions, states that till final disposal of the suit, the respondent

would not produce and sell the goods by using the labels complained of.

4. In view of the above, I find that purpose of filing this appeal

can be achieved by passing the following order :

The trial Court shall dispose of the suit in accordance with

law within three months from the date of appearance of the parties

before it. Parties shall appear before the trial Court on 8 th September

2017.

Till the suit is disposed of on merits, the respondent shall not

produce and sell from its factory from this date onwards the goods under

the labels complained of.

Parties shall cooperate with the trial Court and the trial Court

shall not grant any adjournment except in a rare case of involvement of a

factor beyond control of the party.

Parties to bear their own costs.

Appeal stands disposed of accordingly.

S. B. SHUKRE, J

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