ORDER S. Awasthy, J. - This appeal arises out of the order dated 29-3-1985 passed by the District Judge, Bilaspur in Civil Suit No. 53-A/84. A suit has been brought by the respondent - plaintiff against the appellant - defendant for declaration and injunction for passing of his goods within the meaning of section 27(2) of the Trade and Merchandise Mark Act, 1958. The plaintiff also filed an application under Order 39 Rules 1 and 2 C.P.C. read with Section 55 of the Copy Right Act and 106 of the Trade and Merchandise Act for restraining the defendant from manufacturing, marketing and selling his products by name "Amul Agarbatti" packed, wrapped and designed in a copy identical and deceptively similar the design, packing and get-up of the plaintiff's product by name "macool Agarbatti". The defendant, apart from denial, is that he had been selling his Agarbatties (incense candles) under the name "Amul" prior to the production of "Bacool Agarbatties". It is also mentioned in para 2 of the affidavit dated 2-4-1985 filed in the suit that the Agarbatties sold under the packing were being sold even prior to the manufacture of the Agarbatties by the plaintiff. The learned District Judge has found in his order that the pack of the incense candles marketed by the defendant is deceptively similar to that of the plaintiff's and has granted injunction to him as prayed for, but the plea, as has been pointed out above, has not been taken into consideration. In the case of Radhakishan Naraindas v. Trilokchand Chhabilal and others, (1959 M.P.L.J. 832) it has been held that - "We do not think that in view of the dicta in the two cases cited, particularly the dieta of their Lordships of the Privy Council, we can look into this kind of evidence to decide upon the application of section 25 of the Act, Since there is no material before us, we are unable to give a finding whether in the circumstances of the case a temporary injunction ought or ought not to issue. Equally, the trial Court was not in a position to give such a finding either, whether affirmatively or negatively. Equally, the trial Court was not in a position to give such a finding either, whether affirmatively or negatively. The proper course for the subordinate Court was therefore to cell for prima facie evidence of user or non-user and to decide summarily the question of a grant of temporary injunction in the light of such evidence." In view of the discussion aforesaid, the order of the Court below is set aside and the case is sent back the trial Court for affording opportunities to both the parties to lead evidence to establish the rival contentions of the parties, keeping in view the defence taken by the defendant as quoted above. The appeal is allowed. The order of the District Judge is set aside and the case is emended as directed above. (Case remanded).