JUDGMENT Chandrasekhara Menon, J. 1. Plaintiff in a suit for a perpetual injunction to restrain the defendant, respondent herein, his agents, etc., from using the words "Aysha Beedies"t or words to the above effect or labels containing the said words or words to that effect as descriptive of in connection with the manufacture and sale or distribution of beedies is the appellant. His suit was dismissed by the Additional District Judge of Ernakulam by Judgment dated 24th February 1972 and hence he has come up in appeal. 2. The appellant is a beedi manufacturer having his place of business at Hosdurp, Kanhangad. He manufactures beedies which are sold and distributed in the name Aisha Beedies. The defendant is also a beedi manufacturer having his place of business at Ernakulam conducting business in the trade name Aysha Beedies. The phonetic similitude in the two names Aisha andAysha spelt differently has Resulted in this suit. 3. It is alleged by the appellant that the name "Aisha Beedies" had been registered by him with the device of a parrot under the Trade and Mercandise Marks Act, Act 43 of 1958 (hereinafter called the Act). The registry was in 1962, the actual date of registration being 1st June 1962. According to him he had been engaged in this business of manufacture, sale and distribution of beedies under the same name from 15th December 1957. The defendant is manufacturing, distributing and selling beedies, under the name Aysha Beedies, the place of manufacture is at Ponnurundi, Vyttila, Ernakulam District. According to the appellant plaintiff the beedies manufactured by the defendant are of an inferior quality and he is using the particular name for getting a mark to mislead people who may buy these beedies under the honest belief that they are manufactured by the plaintiff. Therefore the suit was filed. It is only one for injunction as stated earlier. No damages as such is claimed against the defendant. 4. In his written statement the defendant pointed out that from 1961 onwards he was manufacturing, selling and distributing beedies in the trade name Aysha Beedies without any protest from any quarter. In 1961 itself he had applied for registration of his trademark; but he got it registered only on 23rd January 1967 which was with effect from 17th February 1965, for a period of seven years. In 1961 itself he had applied for registration of his trademark; but he got it registered only on 23rd January 1967 which was with effect from 17th February 1965, for a period of seven years. The certificate of registration together with the true representation of the trademark had been produced in the case marked as Ext. D-28. 5. The lower court after a detailed consideration of the evidence in the case came to the conclusion that the defendant was manufacturing beedies under the trade name "Aysha Beedies"t from 1961 onwards, though the order registering the trademark was passed by the Registrar in the matter pendente lite which was to take effect from 17th February 1965. Retrospective effect is given to the order because the defendant had applied for registration long before the suit had been instituted. The court said that even assuming that the application for registry had been made by the defendant during the pendency of the suit only, the right course to follow was to have the stay of the proceedings in the suit to await the decision of the Registrar on the application for registration. On the basis of sections 28 (3) and 33 of the Act the court was of the view that the suit for infringement of the trademark could not lie. On this basis the court held that the plaintiff is not entitled to exclusive use of the name Aisha Beediest throughout the State of Kerala. Though the trade name used by the defendant resembles the trade name of the plaintiff, the user of such name would not constitute an infringement of the said right in the trademark in view of the statutory provisions. In respect of his claim on the basis of passing off (covered by issue 4 in the case) the learned Additional District Judge pointed out that apart from the plaintiff no other witness was examined and no documents were produced either to show that there was any passing off at any stage to constitute an infringement that way or to provide a cause of action for damages. Therefore on that issue also the court held in favour of the defendant. The suit was accordingly dismissed with costs. 6. In this appeal Sri K. M. Naha, learned counsel for the appellant-plaintiff only argued for the position that there has been infringement of the trademark by the defendant. Therefore on that issue also the court held in favour of the defendant. The suit was accordingly dismissed with costs. 6. In this appeal Sri K. M. Naha, learned counsel for the appellant-plaintiff only argued for the position that there has been infringement of the trademark by the defendant. He contended that as the appellant-plaintiff had earlier registered the trademark in respect of his business he is entitled to have the injunction as prayed for issued against the defendant. He pointed out that under section II of the Act a mark, the use of which would be likely to deceive or cause confusion could not be registered as a trademark and the defendant registration of the trademark in 1967 cannot take effect as against the trademark registered in the plaintiff name. He placed reliance also on section 12 which states that no trademark shall be registered in respect of any goods or description of goods which is identical with or deceptively similar to a trademark which already registered in the name of a different proprietor in respect of the same goods or description of goods, except save as provided in sub-section (3) of section 12. Sub-section (3) of the section reads: "(3) In case of honest concurrent use or of other special circumstances which, in the opinion of the Registrar, make it proper so to do, he may permit the registration by more than one proprietor of trade marks which are identical or nearly resemble each other (whether any such trade mark is already registered or not) in respect of the same goods or description of goods, subject to such conditions and limitations, if any, as the Registrar may think fit to impose". He also took us through the provisions relating to the registration of trade marks provided in Chapter III of the Act as also the provisions dealing with the effect of registration contained in Chapter IV of the Act. 7. After hearing the counsel and going through the records we are of the view that the learned judge was right in dismissing the suit. It would be useful in this connection to refer to sections 28, 30 (1) (d) and 33 of the Act which we herein below extract: "28. 7. After hearing the counsel and going through the records we are of the view that the learned judge was right in dismissing the suit. It would be useful in this connection to refer to sections 28, 30 (1) (d) and 33 of the Act which we herein below extract: "28. Rights conferred by Registration." (1) Subject to the other provisions of this Act, the registration of a trademark in Part A or Part B of the register shall, if valid, give to the registered proprietor of the trade mark the exclusive right to the use of the trade mark in relation to the goods in respect of which the trade mark is registered and to obtain relief in respect of infringement of the trade mark in the manner provided by this Act. (2) The exclusive right to the use of a trade mark given under sub-section (1) shall be subject to any conditions and limitations to which the registration is subject. (3) Where two or more persons are registered proprietors of trade marks, which are identical with or nearly resemble each other, the exclusive right to the use of any of those trade marks shall not (except so far as their respective rights are subject to any conditions or limitations entered on the register) be deemed to have been acquired by any one of those persons as against any other of those persons merely by registration of the trade marks but each of those persons has otherwise the same rights as against other persons (not being registered users using by way of permitted use) as he would have if he were the sole registered proprietor". "30(1) Notwithstanding anything contained in this Act, the following acts do not constitute an infringement of the right to the use of a registered trade mark:- (d) the use of a registered trade mark, being one of two or more trade marks registered under this Act which are identical or nearly resemble each other, in exercise of the right to the use of that trade mark given by registration under this Act.t 33. Saving for vested rights. Saving for vested rights. Nothing in this Act shall entitle the proprietor or a registered user of a registered trade mark to interfere with or restrain the use by any person of a trade mark identical with or nearly resembling it in relation to goods in relation to which that person or a predecessor in title of his has continuously used that trade from a date prior: (a) to the use of the first mentioned trade mark in relation to those goods by the proprietor or a predecessor in title of his ; or (b) to the date of registration of the first mentioned trade mark in respect of those goods in the name of the proprietor or a predecessor in title of his. Sub-section (3) of section 28 makes it impossible for one proprietor of a registered trade mark to file infringement action against another proprietor of a registered trade mark, The right of a proprietor to use a registered trade mark may be limited by the limitations and conditions or any other entries in the registry. A registered proprietor is hence protected from an infringement action only to the extent to which the right of the use of that trade mark is given by a registration. Reading section 28 (8) with section 30 (i) (d) it would be clear that one proprietor of a registered trade mark cannot file infringement action against another registered proprietor of the same trade mark respect of the same goods though a passing off action is possible. As now we are concerned only with the question of infringement of trade mark in this appeal we think the appellant cannot succeed. In the matter his remedy is really under section 107 of the Act which entitles an aggrieved person to apply to the High Court for rectifying the registry of trade marks, if a wrong registry has been made. In this view we find no merit in the appeal, It is dismissed. In the circumstances we direct the parties to bear their costs throughout.