JUDGMENT U.C. Srivastava, J. - This appeal under O. 43, R. 1(r), C.P.C. is directed against the order dated 24-11-1988 passed by the X Additional District Judge, Lucknow rejecting the ,application under O. 39, Rr. 1 and 2 read with S. 151, C.P.C. 2. On 2-9-88 the plaintiff which is a registered partnership firm through its partner Smt. Nazma Begum filed a suit for temporary injunction restraining the opposite parties from using the applicant's Trade Mark 'Jazira Al-Arabia' in order to export tobacco to Saudi Arabia in which the applicant has every hope of success. Along with the plaint the plaintiff filed an application for interim injunction. The defendant M/s. Azad. Bharat Tobacco Factory and their partners filed objection to the grant of interim injunction and the trial court after taking into consideration the facts of the case and after hearing the parties rejected the application for interim injunction on the ground that the plaintiff is not entitled to this equitable relief in view of the fact that he has concealed the material facts and has made misrepresentation and further that the trade-mark of the plaintiff is not registered. 3. The plaintiff came forward with the case that plaintiff was manufacturer of smoking tobacco for the last six years in the name and trade mark "Jurak Jazira AI-Arabia" evidenced by a palm tree showing the Island of the Saudi Arabia with the heading "Jurak Al-Aal". A photostat copy of the trade mark was also annexed with the plaint. It was mentioned that the registration number was 4262 and it was being used since the year 1983. It was further stated by them that they have been earning foreign exchange since that year and they have acquired high reputation. 4. The defendants are running their business of tobacco in the name and style, Azad Bharat Tobacco Factory in the same name and style by using the plaintiffs trade mark and they have sold by export their goods using the trade mark of the plaintiffs and that too at a much lower rate than that of the plaintiff's goods. 4. The defendants are running their business of tobacco in the name and style, Azad Bharat Tobacco Factory in the same name and style by using the plaintiffs trade mark and they have sold by export their goods using the trade mark of the plaintiffs and that too at a much lower rate than that of the plaintiff's goods. The general make-up marking and appearance of the defendant's packages apart from the use of trade mark of the plaintiffs, has been made to resemble closely the plaintiff's packages in order to pass-off the defendant's goods as the plaintiffs goods and the object of the defendants in exporting and selling the said goods is to deceive the public and to lead them to believe that in purchasing the inferior compounds offered for sale, they were buying the genuine articles of the plaintiffs manufacturer. These facts were also stated in the application for interim relief. 5. The defendants in their counter-affidavit stated that the plaintiff was not the proprietor of alleged trade mark having registration number 4262 and the; interim injunction which was granted earlier was liable to be discharged. It was pleaded that M/s. Abdul Bari Iskander Trading Estate of Jeddah, Saudi Arabia are the proprietors of the said trade mark. It was further pleaded that the trade mark No. 4262 was registered on 27th Aug. 1942 consisting of letter "S" and the sane was registered in Class 21 in respect of "Oil Cans; Oilers not being parts of machinery" in the name of "The Singer Manufacturing Company", New Jersey, U.S.A. It was further pleaded that they have been manufacturers and exporters of Smoking Tobacco (Hukka tabacco) for the past many years and the smoking tobacco (Hukka tobacco) manufactured and exported by the defendant has great and constant demand as product of good quality in Arabian countries including Saudi Arabia and has been earning valuable Foreign Exchange. It was further pleaded that in February, 1988 the defendant was approached by M/s. Abdul Bari Iskander Trading Estate, Jeddah, Saudi Arabia to supply them Smoking Tobacco under their trade mark/brand name "Jurak-Al-Alal Mumtaj Number Wahed" label consisting of the Device of a palm tree in the Map of Arabian Island. It may be noticed that the plaintiff trade-mark is also the same in the palm tree in the map of Arabian Island. It may be noticed that the plaintiff trade-mark is also the same in the palm tree in the map of Arabian Island. It was admitted by them that prior to placing the order they were importing smoking tobacco from the plaintiff and as a matter of fact they are the proprietor of said trade mark and they have filed application for registration of the same under the Trade Mark Laws of the Kingdom of Saudi Arabia and that the defendant nor the plaintiff have got no right whatsoever in respect of the same. It was stated that the plaintiff has got no sales in India and as such there was no question of the acquiring reputation in India. According to them the plaintiffs have failed to make out any prima facie case in his favour and the balance of convenience was not in his favour. it was further pleaded that the plaintiff has got no right over the said trade mark and as such the interim order which was obtained by fraud was liable to be discharged. 6. Rejoinder affidavit was filed by the plaintiff before hearing of the case before the trial court. It was reiterated by them that they were the owners of trade mark "Jurak-Jazira-Al-Arabia" and said trade mark was registered under the provisions of Trade and Merchandise Marks Act, 1958 and they are the proprietor of said trade mark with registered number 4262 and it was pointed out in their rejoinder affidavit that the trade mark in dispute was registered on 14-12-87 under the Trade and Merchandise Marks Act, 1958. They denied that said trade mark ever belonged to M/s. Abdul Bari Iskander Trading Estate. They also denied of their knowledge of any application by M/s. Abdul Bari Iskander and even if they can get any mark, they are not entitled to use the trade mark which is registered under the Indian laws. The trial court on the basis of these pleadings came to the conclusion that so far as the mark is concerned, it was found that no prima facie case was made out in favour of the plaintiff and as such the application for interim relief was rejected. 7. The parties filed some documents in support of their case. The plaintiff filed letters of credit of bank to show that it has been supplying smoking tobacco in Saudi Arabia since the year 1985. 7. The parties filed some documents in support of their case. The plaintiff filed letters of credit of bank to show that it has been supplying smoking tobacco in Saudi Arabia since the year 1985. The original trade mark certificate in their favour was registered on 13-10-1987 and same was filed. 8. Before this court along with their rejoinder affidavit the plaintiff-appellant filed a photostat copy of the licence dated 26-3-85 from the authorities of Central Excise Department and they have also filed photostat copy of the certificate valid for the year 1988 indicating that supplies have been made by them for the last several years. Before the trial court a letter was also filed. The defendant also filed photostat copy of trade mark advertised in the year 1946 itself. They also filed letter of M/s. Abdul Bari Iskander Trading Estate showing that on 26-3-1988 order was placed by them on the defendant and the application filed by M/s. Abdul Bari Iskander Trading Estate for registering their trade mark in their country was also filed. 9. From the documents filed by the plaintiff, it is obvious that admittedly he has been exporting tobacco to the said company M/s. Abdul Bari Iskander Trading Estate. From the documents on record ft is also clear that he started the business in the year 1983 and the defendant started supply in the year 1988 only. The trial court rejected the application for interim injunction on the ground that there has been misrepresentation by ti].e plaintiff and as such there is no equity in his favour and;?e has concealed real facts. From the trade mark registration which has been annexed to the plaint it is clear that the plaintiff has been supplying tobacco from the year 1983 and his application indicates that he has been exporting the same using said trade mark from the year 1983. His application for registration which was moved in 1987 was registered at No. 4962 and he was the licencee and there was a valid licence of manufacturing tobacco in his favour. The misrepresentation is said to have been made by him with registration No. 4262 which was being used since the year 1983. 10. His application for registration which was moved in 1987 was registered at No. 4962 and he was the licencee and there was a valid licence of manufacturing tobacco in his favour. The misrepresentation is said to have been made by him with registration No. 4262 which was being used since the year 1983. 10. Learned counsel for the appellant contended that it is not misrepresentation but some sort of mis-description due to mistake on the part of the lady as the said trade mark has been used by her from the year 1983 an she has been exporting tobacco on the said trade mark, licence for which was held by her from the year 1983. Her application was registered in the year 1987 and the certificate of the same was placed on the record and which is still on the record. In the application for filing the documents which is under the signatures of the counsel, this document has been described as certificate of registration. It appears that the plaintiff who seems not conversant with the language and the counsel has also taken this certificate for registration as trade mark itself and this is the description which has been given in the plaint and the stand has thus been very clear and it appears that under the mistaken belief they took it to be the registration certificate of trade mark itself may it be because this trade mark has been used by the plaintiff from the year 1983 and licence in favour of plaintiff was also granted on the basis of which she was exporting the tobacco letters of credit of bank were also placed on the record before the trial court showing Bank was giving credit for this purpose. The plaintiff's stand being very clear, it could not be said that she has not come forward with clear hands. The entire facts were before the court and there was no concealment by the plaintiff. As a matter of fact it was rather a case of mistake and mistaken b ;lief. In this connection reference may be made to the case of Indian Dental Works v. K. Dhanakoti Naidu, AIR 1962 Mad 127 . in which relying on certain English decisions it was held : "A wrongful user . As a matter of fact it was rather a case of mistake and mistaken b ;lief. In this connection reference may be made to the case of Indian Dental Works v. K. Dhanakoti Naidu, AIR 1962 Mad 127 . in which relying on certain English decisions it was held : "A wrongful user . of the expression "registered" in a trade mark when the mark has not been actually registered does not disentitle the, plaintiff from maintaining his suit for injunction in a passing off action, where the user of the word "registered" by the plaintiff in his trade mark is the result of an honest mistake. In such a case the plaintiff should not be visited with any penalty for such user of the word "registered" in his trade mark." One of the English decision referred is A.C. Gilbert Co.'s, (1935) 52 RPC 136.. In the said case the question arose whether the fraudulent user of the expression "registered" disentitled a party who applied for registration of his trade mark to the relief of registration. It was laid down in that decision that if the user was deliberately fraudulent it might have the effect of disentitling the party to registration. Where it is merely a blunder due to misapprehension that result would not follow. Similarly in the case of Arthur Fairest Ltd.'s, (1951) 68 RPC 197. after relying on earlier decision it was held that the user of the word "registered" was the result of an honest and stupid blunder and that no improper advantage was gained by such user. Similarly in George Key Ltd.'s trade mark, 1954 71 RPC 106. it was held as follows : "I think it is right that I should view the applicants conduct as being the result of an honest mistake which might easily be made by any person unfamiliar with trade mark law, and that the applicants should accordingly not be prejudiced either in the prosecution of their own application for registration or of their application to rectify the register." 11. In the instant case the appellant's case stands on somewhat better footing. In the instant case the appellant's case stands on somewhat better footing. The word 'registration' has been described by herd because certificate of registration was granted) to her in respect of a particular trade mark which has been in her use for the last few years and there was no concealment as the said document was placed on the record and, was described as such. Learned counsel ford the respondents made reference to the case of (1930) 47 RPC 95, Johnson & Son Ltd. v. W. Puffer & Co. Ltd. in which it was observed as follows : "On misrepresentation by the plaintiffs and his registration of an unregistered mark, injunction be refused." It has got no applicability in the instant case as it is not the case of 'misrepresentation'. The dictionary meaning of the word 'misrepresentation' in Chamber's 20th Century Dictionary is to 'represent falsely' 'to give a misleading representation to the words or deeds', and 'to be an unrepresentative representation of'. Here in this case there has been no intention to gain undue benefit by the description of the document from the very beginning to the plaintiff and it was only a case of mistake and mistaken belief and not of misrepresentation. There was no concealment by the- plaintiff as well. So far as' the balance of convenience is concerned obviously it was in favour of the plaintiff who has been using the said 'trade mark' from the; year 1983 and the defendants have no trade mark and the defendant relies on a trade mark in Saudi Arabia and claimed from India merely because it is supplying tobacco to a company. In Century Traders v. Roshan Lal Duggar and Company, AIR 1978 Delhi 250 it was held as follows (at p. 255) : "Inasmuch as trade mark is property right, an invasion of it should be protected and the balance of convenience would obviously be in favour of the appellant who was admittedly the first user of the mark." There was no material on behalf of the defendants that they were prior user. In M/s. Virendra Dresses v. M/s. Varinder Garments, AIR 1982 Delhi 482 also the view taken in that the balance of convenience lies in favour of the plaintiff the first user of the mark. The same view was taken in Manoj Plastics India v. Bhola Plastic Industries, AIR 1984 Delhi 441. In M/s. Virendra Dresses v. M/s. Varinder Garments, AIR 1982 Delhi 482 also the view taken in that the balance of convenience lies in favour of the plaintiff the first user of the mark. The same view was taken in Manoj Plastics India v. Bhola Plastic Industries, AIR 1984 Delhi 441. One who has been using a particular trade mark from before balance of convenience will He in his favour. As such balance of convenience lies in favour of the plaintiff and obviously no injunction was granted to the plaintiff and obviously the plaintiff cannot be compensated in terms of money. 12. In the circumstances, the appeal deserves to be allowed. It is accordingly allowed. The judgment and order dated 24-11-1988 passed by X Additional District Judge, Lucknow is set aside and injunction is granted to the appellant against the respondents for using the trade mark by the plaintiff in his package which he will be exporting out of India and the respondent is restrained from using the said Trade mark in any manner. However, it is made clear that there is no bar if otherwise permissible to send the same without any mark or any other mark. The suit itself may be decided within a period of six months.