Sultan Singh ( 1 ) THIS is an application under 0. 39 R. 1 and 2 Civil Procedure Code in a suit for injunction restraining defendants from using in relation to their product carton tube pertaining to cosmo Turmeric Vanishing Cream and/or any other carton or tube which is deceptively similar to plaintiffs carton and tube pertaining to "vicco Turmeric Vanishing Cream" so as to pass off their goods as the goods of the plaintiffs, for recovery of rupees one lakh as damages and also to deliver up for destruction all designs, blocks, tubes, carton and tube used in manufacture of these deceptively similar to the carton and tube of the plaintiffs. ( 2 ) THE suit was originally filed in the High Court at Bombay 8. 2. 78. Bharucha, J. passed the following order on 27. 7. 1978 : "i am not satified that this Court has Jurisdiction. Therefore, Notice of Motion dismissed. Costs of the notice of Motion to be costs in the cause. " ( 3 ) THE plantiffs then applied for leave to withdraw the suit on the ground of lack of jurisdiction and the following order was passed on 8. 8. 78. "plaint returned for presentation to proper Court. The Plaintiffs to pay to the Defendants the costs fixed at Rs 200. 00. ( 4 ) THE plaint returned on 10. 8. 78. was filed in this Court on 288. 78 An application (I. A 3212/78) was also filed under 0. 6,r,17 CPC to amend the plaint pleading facts showing that this Court has jurisdiction, besides other formal amendments, on account of return of plaint which was allowed on 29. 8. 78 ( 5 ) AN ex parte Injunction order was passed on 29. 8. 78 restraining defendants from using in relation to their product, the carton and the tube pertaining to cosmo Turmeric Vanishing Cream" and/or any other carton or tube which is deceptively ; similar to the plaintiffs carton and tube . . pertaining to vicco Turmeric Vanishing Cream" till further orders. ( 6 ) THE plaintiffs allege that they have been manufacturing and marketing since 1965 vanishing cream containing turmeric and sandal-wood, an ayurvedic preparation, . . pertaining to vicco Turmeric Vanishing Cream" till further orders. ( 6 ) THE plaintiffs allege that they have been manufacturing and marketing since 1965 vanishing cream containing turmeric and sandal-wood, an ayurvedic preparation, . under the name of vicco Turmeric Vanishing Cream which improves natural health of the skin, adding lustre to the cornplexion, for man, an ideal after shave cream, and effective in boils and pimples, that the products of the plaintiffs including said cream have become popular all over the country. The plaintiffs have been marketing said cream in collapsible tubes of three different sizes namely small, medium, and economy packed in appropriate cartons. ( 7 ) THE carton has an attractive, distinctive get up and colour scheme, i. e. , red background with yellow floral design and printing in white letters. On two sides of the carton there are floral designs, with the words vicco Turmeric in first line, words vanishing Cream in the second line, and words an Aurvedic Preparation in the third line. On the third side of the carton there is floral design with the words manufactured in India by printed in the first line and the plaintiffs name and address in the second and third line. On the fourth side of the carton the uses of the said cream are mentioned. As regards the tube containing the said turmeric vanishing cream, the plaintiffs, allege that it has also a distinctive get-up. The collapsible tube has red background with floral design in yellow colour. On one side of the tube the words "vicco Turmeric are written and below that appear the words vanishing Cream in yellow colour letters. On the reverse side of the tube the material similar to the material on the fourth side of the carton is printed in dark yellow colour. The cap of the tube is yellow and the tube has a yellow strip in the bottom. A specimen of the carton and the tube is marked as annexure A and A-1, which they allege have been used by them since April, 1975 for selling their turmeric vanishing cream, and the total sales since April, 975 upto December, 1977 are of Rs. 1,77,31,377. 00. A specimen of the carton and the tube is marked as annexure A and A-1, which they allege have been used by them since April, 1975 for selling their turmeric vanishing cream, and the total sales since April, 975 upto December, 1977 are of Rs. 1,77,31,377. 00. The plaintiffs allege that by reason of sales and publicity their product has become popular in the market and by reason of distinctive get-up and colour scheme, the tube and the carton have come to be associated by the trade and the members of the public as the product of the plaintiffs exclusively, that they have spent an aggregate sum of Rs. 55,53,069. 00 towards the publicity expenses from 1st April, 1975 to 1st December, 1977, in advertising through the media of radio, television and film. ( 8 ) IN November, 1977, the plaintiffs learnt that the defendants had begun marketing a vanishing cream in cartons and tubes which are a colourable imitation of the plaintiffs cartons and tubes, that Shri S L. Jain proprietor of the defendant firm having factory and office at Community Centre, Phase-11, Ashok Vihar, Delhi has fraudulently flooded the markets including Delhi with imitation cartons and tubes with a view to trade upon the reputation of the plaintiffs product. The defendants carton has also a red background and has floral design in yellow colour identical with the piaintiffs floral design. On two sides of the carton the words cosmo Turmeric" are printed in white and below them vanishing Cream is printed. The letters used in white printing are also similar. On the third side of the carton the defendants name and details regarding manufacturing licence and price are printed in white. On the fourth side of the carton the words "cosmo Turmeric Vanishing Cream improves the natural health of the skin, adding lustre to the complexion. For men, an ideal after shave cream" are printed in white. The defendants tube has also the get-up and colour scheme identical with that of the plaintiffs. The tube has a red/orange background with a yellow floral design. On one side of the tuba the words Cosmo Turmeric are printed in yellow colour and below them appear the word vanishing Cream also in yellow colour. On the reverse side of the carton is printed in the same colour scheme and in the same manner as that of the plaintiffs. On one side of the tuba the words Cosmo Turmeric are printed in yellow colour and below them appear the word vanishing Cream also in yellow colour. On the reverse side of the carton is printed in the same colour scheme and in the same manner as that of the plaintiffs. The cap of the defendant s tube is also yellow and there is a strip in yellow colour at the bottom of the defendants tube A specimen of the defendants carton and the tube. is marked as Ex. C and C-l. ( 9 ) THE plaintiffs allege that the defendants have fraudulently adopted the tube ; and carton which are identical with or are a colourable imitation of the plaintiffs tube and carton, that they are deceptively similar and they have adopted the said carton and the tube with a view to pass off their goods as and for the goods of the plaintiffs, that by reason of the acts of passing off already committed by the defendants they have caused loss and damage to the plaintiffs both in business as well as reputation in trade and that the loss to the plaintiffs reputation cannot be easily calculated in terms of money, that the defendants have imitated the get-up, colour combination and the description of the plaintiffs product in order to cause confusion and deception and to earn profits in an iliegal manner. The plaintiffs further state that the defendants impugned product is of a recent origin, and if the defendants are not restrained from carrying on their illegal trade activities the plaintiffs would suffer a great hardship. The plaintiffs further state that the defendants impugned product is of a recent origin, and if the defendants are not restrained from carrying on their illegal trade activities the plaintiffs would suffer a great hardship. ( 10 ) THE defendants in their reply stale that there is no proper plaint in this Court, as plaintiffs cannot present same which was presented in the High Court of Judicature at Bombay, that the amendment allowed by this Court without notice was unwarranted by law and it must be deemed that there is no amendment in the plaint, that the defendants started selling cosmo Turmeric Vanishing Cream in November, 1977, that they are using their own descriptive words as well as floral design giving their address on the carton and tube along with manufacturing licence and excise licence number and also the retail price, that the two trade marks vicco and cosmo are different visually as well as phonetically and no mistake is possible while purchasing the vanishing cream either of the plaintiffs or of the defendants. (In para 11. R. 269 A of the" Bombay High Court is reproduced which is that while returning plaint dates of presentation and return shall be noted and also a certified copy of plaint shall be taken.) ( 11 ) THE formalities of this rule 269 A appear to have been complid with which is apparent from endorsements on the plaint. There does not appear any defect in the filing of the plaint in this Court. ( 12 ) LEARNED counsel for the defendants has contended 0. 7, R 10a. Code of Civil Procedure has not been complied with and therefore the suit has not been properly instituted. At present, it appears to me that 0. 7, 10a as substituted by Act 104 of 1976 in the Civil Procedure Code is not mandatory but only directory. The plaintiffs were not under any obligation to make any application in the High Court of Judicature at Bombay specifying the Court in which they propose to present the plaint after its return. For the purposes of the present application, I am of the opinion that the plaint has been properly presented to this Court after its return by the High Court of Judicature at Bombay. ( 13 ) THE next objection of the defendants counsel is that the amendment of plaint allowed by order dated 29. 8. For the purposes of the present application, I am of the opinion that the plaint has been properly presented to this Court after its return by the High Court of Judicature at Bombay. ( 13 ) THE next objection of the defendants counsel is that the amendment of plaint allowed by order dated 29. 8. 78 without notice to the defendants is not warranted by law. Ordinarily notice of an application is to be served upon the defendants. In the present case the proposed amendment was to plead facts showing that this Court has jurisdiction. The original plaint filed at Bombay pleads facts showing Bombay Court has Jurisdiction but when the same was returned for presentation to proper court facts have to be pleaded showing that this Court has jurisdiction. Notice of such application for formal amendment is not necessary. Without allowing amendment this Court has no jurisdiction to issue summons of the suit and notice of the application to the defendants. ( 14 ) THE plaintiffs claim passing off by the defendants of their product as and for the product of the plaintiffs on the basis of copy of the distinctive get up and colour scheme of the collapsible tubes and the cartons by them, The defendants are not entitled to represent their goods as being the goods of the plaintiffs. The two marks Vicco and cosmo used by the plaintiffs and defendants respectively are no doubt different and the mark cosmo by itself is not likely to deceive but the entire get-up and the colour scheme of the tube and the carton adopted by the plaintiffs adopted in every detail by the defendants for thair tube and carton cannot be said to have been adopted by the defendant unintentionally. Further the defendants allege that they started selling their product in question from November, 1977 while the plaintiffs have been selling their product in the said carton and the tube since April, 1975. The suit was originally filed in February, 1978 at Bombay and ex parte injunction was granted on 29th August, 1978. The plaintiffs are prior users of their product in the carton and the tube. ( 15 ) FOR the grant of a temporary injunction three facts are essential, namely, to prove prima facie case, the balance of convenience between the parties and the irreparable injury likely to be caused in case the injunction is not granted. The plaintiffs are prior users of their product in the carton and the tube. ( 15 ) FOR the grant of a temporary injunction three facts are essential, namely, to prove prima facie case, the balance of convenience between the parties and the irreparable injury likely to be caused in case the injunction is not granted. The plaintiffs have prima facie proved the case that they have been selling their product in the carton and the tube in question with distinctive get-up and colour scheme since April, 1975, while the defendants started selling their product in November, 1977 in the tube and the carton which prima facie appear to be copies of the entire get-up in the colour scheme adopted by the plaintiffs. The tube and the carton with the get-up and colour scheme have come to be aesociated by the, trade and members of the public as the product of the plaintiffs. The plaintiff s have also sold their product of the value of Rs. 1,77,31,377. 00during the period April,] 1975 to December, 1977. The plaintiffs are the reputed manufacturers of the turmeric cream since 1965. The defendants have put their product in the market only from Nov. 1977 and they have not disclosed the value of their sales, meaning thereby that the sales of the defendants are negligible. It appears that it would be proper if he defend ants at this stage are restrained from passing off their product in the tube and the carton which are deceptively similar to the tube and the carton adopted by the plaintiffs since April, 1975. It would be in the interest of the defendants also to adopt their own get-up for tube and the carton for the sale of their product. The plaintiffs are likely to suffer irreparable injury if the defendants are allowed to use the similar carton and the tube identical with get-up and colour scheme adopted by the plaintiffs. The injunction will not result in any hardship to the defendants if they at this stage can adopt any other carton and the tube with different get-up and colour scheme. The balance of convenience is in favour of the plaintiffs,_