JUDGMENT Fakhruddin, J. - This is an appeal under Clause 10 of the Letters Patent arising out of judgment and decree dated 19.2.1991 in First Appeal No. 43/81, whereby the judgment and decree dated 16-3-1981 passed by the District Judge, Vidisha has been reversed. 2. Respondent/firm filed a civil suit against an action of infringement of trade marks and for passing of/in the court of District Judge on 24th October, 1969. 3. Briefly stated the plaintiff's case is that the trade mark 'Khargosh Chhap' label was first registered with the Sub-Registrar of Bombay on 26th January, 1928 and thereafter under the Trade Marks Act, 1940, it was registered on 14.8.1945 in respect of Bidis to be sold under that trade mark throughout India except Madras and Mysore. The Registration, number of the label was 112689. Subsequently, the Jhilli (tissue paper wrapper) was also got registered on 2.7.1954 and it was allotted Registion No. 164797. Both registrations were duly renewed from time to time. It is alleged that looking to the popularity, reputation and huge sale commanded by plaintiff's 'Khargosh Chhap' Bidis, the defendant/appellant herein started manufacturing and selling Bidis using a label which was deceptively similar to and colourful imitation of plaintiff's 'Khargosh Chhap', registered trade mark in respect of 'design', 'layout', 'get-up', 'colour scheme' and 'setting'. Defendant's 'Khargosh Chhap' was not a registered trade mark. It was alleged that the defendant's prejudicial activities caused the plaintiff serious loss and defendant made dishonestly unlawful gain to himself at the cost of plaintiff's business. Besides suffering loss of profit on account of defendant's wrongful action, the plaintiff also suffered loss of reputation inasmuch as customers had begun feeling and expressing that the quality of the plaintiff's Bidis had deteriorated. Another relief prayed by way of nominal damage, Rs. 1,000/- and injunction was also prayed to restrain the defendant from using, in any form, plaintiff's 'Khargosh Chhap' label on the Bidis sold by him. 4. The defendant-appellant's plea was that he had started manufacturing Bidis under the trade name 'Bikri Ka Bacha' (goat cub) in the year 1950 and prior to him. M/s. Surajmal Suganchand, r/o. Sehore, in erstwhile Bhopal State were manufacturing the said Bidi and they had got registration of the trade mark on 2nd March, 1936 at Sehore in Bhopal State and thereafter at Calcutta on 7.12.1936. M/s. Surajmal Suganchand, r/o. Sehore, in erstwhile Bhopal State were manufacturing the said Bidi and they had got registration of the trade mark on 2nd March, 1936 at Sehore in Bhopal State and thereafter at Calcutta on 7.12.1936. Shah Krishnakumar Chimanlal, r/o. Sironj had got an assignment from them of the said trade mark and a registered document was executed in that record on 22.12.1956. From him, the defendant got an assignment of the said trade mark by virtue of registered deed, executed on 9.11.1957. It was contended that there was a vast difference in respect of 'design', 'layout', 'get-up', 'colour scheme' and 'setting' between the labels respectively of 'goat-cub' Bidis sold by the defendant and 'Khargosh Chhap' sold by the plaintiff. The defendant denied that any cause of action for infringement or for passing of has occurred. It is also contended that the plaintiff had gained knowledge at least in 1951, 1955 and 1957 of use of labels in question on the Bidis sold thereunder, but he took no action and his suit was therefore, barred by acquirescence. There was no sale of plaintiff's Bidis in the District Vidisha and plaintiff's suit itself is motivated. It was contended that having noticed that the Bidis manufactured and sold by defendant appellant in Sironge Pragana of District Vidisha was gaining popularity and capturing the market, the plaintiff instituted the suit for causing unlawful loss to the defendant. The Trial Court held that the plaintiff is not entitled to get any relief either permanent injunction or damages or taking accounts and dismissed the suit. 5. Having aggrieved by the order of the Trial Court, the plaintiff preferred an appeal under Section 96 before this court. The learned Single Judge decreed the suit for Rs. 100/- against the defendant as damages payable to the plaintiff for infringement of his registered trade mark, restraining the defendant/appellant permanently from selling or advertising for sale, himself and through his agents and servants, Bidis using the label Ex. P. 19 and/or any other device or mark resembling or identical to appellant's registered trade mark, 'Khargosh Chhap, No. 11289. The defendant/appellant was directed to deliver within one month to the plaintiff/respondent all printed materials in his possession including the offensive labels, price lists, invoices and cash memos etc. displaying the said label and/or other mark or device of that nature. The appeal was allowed with costs. 6. The defendant/appellant was directed to deliver within one month to the plaintiff/respondent all printed materials in his possession including the offensive labels, price lists, invoices and cash memos etc. displaying the said label and/or other mark or device of that nature. The appeal was allowed with costs. 6. Being aggrieved by the judgment of the learned Single Judge, the L.P.A. was preferred by the defendant/appellant, against the findings recorded by the learned Single Judge. 7. Mr. R. D. Jain, learned Counsel for the appellant contended that according to the respondent's case, one Ramnath made an application for registration on 26.1.1928 as per Ex. P. 4. Ramnath sold it to Bhikabai on 16.11.1930 as per Ex. P. 5. The submission of the learned Counsel is that the mark was not sold but it's user was transferred. It was also contended that Ex. P. 1 is of 10th November, 1951 and plaintiff got the same registered, as per Ex. P. 8 for fifteen years on 20th July, 1954 and then on 18th March, 1961 as per Ex. P. 10. Since the dispute of Jhilli (tissue-paper wrapper) arose it was on 15th March, 1968 that action was taken as per Ex. P. 9. Learned Counsel contended that so far as the defendant is concerned, it was on 2.3.1966 that an arrangement was made. It was further contended that it is in fact 'Bakri Ka Bacha' (goat-cub) while plaintiff calls it as 'Khargosh'. On 7.12.1966, as per Ex. D. 4 it was got registered at Calcutta. It was sold to Krishna Kumar as per Ex. D. 3A on 20th December, 1956 and on 9.11.1957 Krishna Kumar sold it to the defendant as per Ex. D. 5A. 8. Learned Counsel for the appellant submits that there two types of actions are contemplated : (i) passing off action (ii) infringement of registered trade mark. Counsel contends that passing off is a common law to obtain a relief but it has to be shown that the business has been substantially affected. In case of infringement Counsel submits that mere infringement is enourgh Learned Counsel repeatedly referred to para 22 of the judgment of the learned Single Judge, and contended that since the plaintiff is not using the stip, which is registered alongwith the label, he is not entitled to obtain any, relief against defendant/appellant. In case of infringement Counsel submits that mere infringement is enourgh Learned Counsel repeatedly referred to para 22 of the judgment of the learned Single Judge, and contended that since the plaintiff is not using the stip, which is registered alongwith the label, he is not entitled to obtain any, relief against defendant/appellant. Learned Counsel referred to Sections 28 and 29 of the Trade Marks Act and placed reliance on AIR 1955 SC 558 (especially paras 8 & 9). Learned Counsel further referred to Section 2(r) of the Trade Marks Act and contends that under this section 'registered trade mark' means a trade mark which is actually on the register. Learned Counsel placed reliance on Kaviraj Pandit Durga Dutt Sharma v. Navratna Pharmaceutical Laboratories ( AIR 1965 SC 980 ), and contended that the learned Single Judge has not properly construed the provisions of Sections 28 and 29 of the Trade Marks Act. His main submission is that the registered trade mark has to be used alongwith all conditions or limitations incorporated therein. He referred to Ex. P. and Ex. P. 7 and contended that it was one of the conditions of the registration that the two labels shall be used together. The main contention of the learned Counsel is that this has not been done thus Section 28(2) shall be otiose. He contended that the plaintiff itself had disclaimed and is not using two labels together as contemplated in Ex. P. 6 and Ex. P. 7, and therefore, it is not entitled for any action. It was also contended that the defence of the appellant is based on Section 33 of the Act Learned Counsel raised plea of 'prior user' and 'concurrent user' and submitted that in terms of Sections 29, 30 and 33 of the Trade Marks Act, 1958, no action for infringement lies. It is submitted that the rights conferred by registration are described in Section 28 of the Act. Section 29 deals with infringement of trade marks. Section 30 provides for acts not constituting infringement. Section 33 deals with saving for vested rights. 9. The Learned Single Judge recorded a categorical finding that the defendant's label used on Bidis, manufactured and sold by him was in part deceptively similar and identical with the plaintiff's trade mark 'Khargosh Chhap' label. Section 29 deals with infringement of trade marks. Section 30 provides for acts not constituting infringement. Section 33 deals with saving for vested rights. 9. The Learned Single Judge recorded a categorical finding that the defendant's label used on Bidis, manufactured and sold by him was in part deceptively similar and identical with the plaintiff's trade mark 'Khargosh Chhap' label. The learned Single Judge also in para 9 of the judgment, after considering the relevant provisions of law and perusal of the labels, arrived at the same finding. In para 20 of the judgment the learned Single Judge held that no case for 'concurrent user' under Section 30(1)(d) of the Act is made out. In our opinion, the learned Single Judge has rightly held that the provisions of Section 30(1)(d) are meant to protect an honest concurrent user only, that use must be bona fide and lawful exercise of an existing legal right. The defence should not intend to a mere present or a cunning design. The evidence of DW 9 Ratanlal goes to prove that "Manmohan defendant sells his goat-cub Bidis as Khargosh Chhap". The learned Single Judge, therefore, held that even if the calender (Ex. P. 33) and advertisement in Lions Club Journal (Ex. P. 29) are excluded from consideration for want of proper proof, the evidence of DW 9 Ratanial who had been selling for several years Bidis manufactured by defendant, establishes clearly and categorically defendant's dishonest intention, and as such defendant's conduct of applying repeatedly (albeit unsuccessfully) for registration of label 'Goat-cub/Khargosh' is also a vocal pointer to his dishonest design 10. So far as the defence under Section 33 is concerned, it has been proved that the plaintiff's trade mark was duly registered in 1945 and defendant's claim of prior use relates back to 1952, only. Therefore, it cannot be a case of prior use. There is no scope for any prior use of 'goat-cub' label in Sirong (which was territorially included in pre-independence era in the princely State of Tonk) being considered under Section 33 and that has not been proved, as observed by the learned Single Judge. The learned Trial Judge as well as the learned Single Judge found that the defendant's label is deceptively similar to that plaintiff 11. In the case in hand, Ex. P. 4 and Ex. The learned Trial Judge as well as the learned Single Judge found that the defendant's label is deceptively similar to that plaintiff 11. In the case in hand, Ex. P. 4 and Ex. P. 6 establish sufficiently, in our opinion, the title of the plaintiff in the trade mark 'Khargosh Chhap' label in case of Bidis manufactured and sold by him. The learned Single Judge in paras 10 and 11 of the judgment also considered the defendant's document, especially Ex. D4. It is sought to be executed in Calcutta on 7th December, 1936, but on the bottom of back side of this affidavit, a seal bearing The Delhi Trade Marks Co., Delhi, Trade Marks and Patent Agents, has been put. This is deceptively similar and therefore, on the basis of this, the learned Single Judge arrived at a finding. We have, ourselves, gone through the documents Exs. D3, D4, D5 and D18 very minutely. Ex. D5 is a document in Urdu and Hindi transcript of that it as Ex. D/5-B on record. This is a mere declaration by the executant, who has given his name as Bakshilal s/o. (Vaid) Kapurchand, resident of Sehore Cantt. In Bhopal State. 12. Having considered the entire material on record and the pleadings and after giving due consideration to all the aspect of the matter, we do not find any infirmity in the judgment recorded by the learned Single Judge. The appeal has no merit. It is dismissed with costs. Counsel fee rupees two thousand, if certified. Appeal dismissed