JUDGMENT : N.N. Mathur, J. On account of shortage of time, reasons could not be recorded, when this Appeal was heard and rejected during vacation on 11/6/1996. They are recorded now. 2. This Misc. appeal from order under Order 43 R 1 (r) of the Code of Civil Procedure is directed against the order dated 1st June, 1996 passed by the learned District Judge, Ahmedabad (Rural) at Mirzapur, whereby the learned Judge confirmed the ad-interim injunction granted below application Ex.5 in Regular Civil Suit No. 1 of 1996. 3. The plaintiff's say is that they introduced drugs ALPRAX in the year 1988 and marketed them in all the States of this country. The total sale of the ALPRAX is exceeding Rs.4508.65 Lakhs. They have acquired valuable reputation and goodwill of the said product. It is alleged that the defendant appellant, somewhere in the month of April, 1996, introduced their product under identical and/or deceptive similar brand named ALREX. The plaintiff, thus, sought ad-interim injunction restraining the defendants from infringing the plaintiff's trade mark ALPRAX or any other mark deceptively similar to the petitioner's said registered trade mark ALPRAX. Say of the appellant defendant is that there is no similarity between the product ALREX and ALPRAX. The further say of the defendant is that ALREX and ALPRAX are Schedule "H" drugs, and they are to be sold only under the prescription of Medical Practitioners and these drugs can be dispensed with by qualified and authorised chemists only and as such no question of confusion arises. 4. The learned Judge, after hearing the parties found that the plaintiffs are the owners of the registered trade mark ALPRAX and they are using it since 1988, whereas the defendants have introduced ALREX in the month of April, 1996. The court also found that the trade mark used by the defendant is identical or deceptively similar with the registered trade mark of the plaintiff. The court thus found prima facie case in favour of the plaintiff. The court, considering the question of balance of convenience and irreparable injury, found that the plaintiffs have placed sufficient material before the court to show the nature and extent of reputation which they have acquired for their goodwill, and there is likelihood of their sufferings by another person of their goods, as the goods of the plaintiffs. The court, considering the question of balance of convenience and irreparable injury, found that the plaintiffs have placed sufficient material before the court to show the nature and extent of reputation which they have acquired for their goodwill, and there is likelihood of their sufferings by another person of their goods, as the goods of the plaintiffs. As against this, the defendants did not place any material before the court in the shape of figure of their sale or otherwise, nor have they even cared to state as to when they started using the said trade mark ALREX. Considering the facts of the case and the material on record, the court arrived at the conclusion that if the injunction is granted, no prejudice will be caused to the defendants, as they have yet not made any dent in the market. The court further observed that if the defendants are prevented from running their business of manufacturing medicines and in case defendants succeed, it can resume the name. On the other hand, if the injunction is not granted and the defendants are allowed to establish themselves the drug in the market and if the Doctors, Medical Representatives and medical shops got used to the said products during the pendency of the suit without any distinction, it would be commercially difficult for the plaintiffs to have the benefit of the decree that may be passed in case the plaintiff succeeds in the suit. Thus the question of irreparable injury was also decided in favour of the plaintiffs. 5. I have heard Mr. Mihir Thakor, learned counsel for the appellant and Mr. Kadam with Mr. R.R.Shah, learned counsel for the respondent caveator. 6. The defendants could neither before the trial court, nor before this court could give exact date of introduction of its products ALREX in the market. Their only say is that they started somewhere in the month of April, 1996. Promptly the suit was filed on 26th of April, 1996 and interim injunction was obtained against the defendant which has been confirmed by the impugned order of the learned District Judge dated 1/6/1996. After notice, the matter came up for admission during vacation on 11th June, 1996. Promptly the suit was filed on 26th of April, 1996 and interim injunction was obtained against the defendant which has been confirmed by the impugned order of the learned District Judge dated 1/6/1996. After notice, the matter came up for admission during vacation on 11th June, 1996. The matter could be adjourned to on 1st day of opening of the court i.e. on 17th of June, 1996 which would have mean to continue status of 30th April only for 5 days more. However, on the insistence of the learned counsel for the appellant, the matter was heard for extra one hour of the scheduled time of the court sitting. The learned counsel cited various authorities and read them in extenso. Let me restate that the scope of Misc. appeal is not that of a regular appeal under Section 96 of the Code of Civil Procedure. That the order refusing or grant of temporary injunction is of a discretionary character. Ordinarily, a court of appeal will not interfere with the exercise of discretion by the trial court and substitute its own discretion. In such a discretionary order, interference is permissible only, if court acts arbitrarily or perversely or capriciously in disregard of sound legal principles or without considering all the relevant records. Mere possibility of the appellate court coming to a different conclusion, will not justify interference. Let us further be clear that a Prima facie case is not be confused with full proof case. It only means a bonafide substantial question which needs investigation and decision on merit. 7. Mr.Thakor, learned counsel for the petitioner submitted that in order to decide whether the trade mark is likely to deceive or cause confusion, it must be compared as a whole. It is not right to take a portion of a word and say that portion of the word differs from the corresponding portion of the word in other case there is no sufficient similarity to cause confusion. He has placed reliance on the decision of the Apex Court on F. Hoffimann-La Roche and Co. Ltd., v. Geoffrey Manners and Co., Private Ltd. AIR 1970 SC 2062 . He has placed reliance on the decision of the Apex Court on F. Hoffimann-La Roche and Co. Ltd., v. Geoffrey Manners and Co., Private Ltd. AIR 1970 SC 2062 . The learned counsel further submits that according to the Supreme Court, the true test is whether the totality of the proposed trade mark is such that it is likely to cause deception or confusion or mistake in the minds of persons accustomed to the existing trade mark. The question in the said case was whether the word "DROPOVIT" is deceptively similar to the word " PROTOVIT ". On the facts of the case, on comparison of the trade mark, the court held that "DROPOVIT" and "PROTOVIT" are not deceptively similar. 8. Mr. Thakor has further invited my attention to the following observation of the Apex Court : "From the nature of the goods it is likely that most of the customers would obtain a prescription from a doctor and show it to the chemist before the purchase. In such a case, except in the event of the handwriting of the doctor being very bad or illegible the change of confusion is remote." 9. Learned Counsel submits that this court in Appeal From Order No. 261 of 1987 decided on 8th September, 1987, (Coram: M.B.Shah, J.) has taken the view that as the drugs of the plaintiff as well as of the defendant are the scheduled drugs, there are no chances of any deception. I have read the judgment of the Apex Court as well as the judgment of this court. The Apex Court has not laid down the law that in all cases where the medicinal preparations are to be sold by the chemists on Doctor's prescription, there is no likelihood of any deception or confusion. In fact, the Supreme Court undertook the exercise of comparing the word " PROTOVIT and " DROPOVIT ". Not only this, other material on record was also taken into consideration. On facts of that case, the finding was arrived. In unreported decision of this court, Mr. M.B.Shah J, as he than was, found that the plaintiff was not manufacturing its medicinal preparation in large quantity and its sales were more or less localised within the Gujarat State. Not only this, other material on record was also taken into consideration. On facts of that case, the finding was arrived. In unreported decision of this court, Mr. M.B.Shah J, as he than was, found that the plaintiff was not manufacturing its medicinal preparation in large quantity and its sales were more or less localised within the Gujarat State. Whereas, the drugs of the defendant were sold for many years throughout the country and had earned reputation, and therefore, there was no need for the respondent company to trade upon somebody else reputation. The court took the view that the plaintiff in that case has done its business only for three weeks and there was no evidence of substantial sale and that there was no evidence that because of the defendant's entry into the business, the sale of the plaintiff was affected. Thus in my view, unreported decision referred to by the learned counsel more supports the plaintiff respondent than the defendant appellant. The decision of the Supreme Court has been explained in the case of Ciba Geigy Ltd v. Torrent Laboratories Pvt. Ltd. & Anr. reported in 1993 (1) G.L.R. 325 . It has been discussed and relied upon by the trial court. I need not state all the reasons which has been given by the trial court. Suffice it to say that I am in complete agreement with the view taken by Mr. R.K.Abichandani J. Mr. Kadam, learned counsel appearing for the respondent has also referred to a decision of the Delhi High Court reported in AIR 1989 Delhi 44. B.N.Kirpal J, as he than was, in the said case, observed that though such medicines are sold on doctor's prescription, but it is not unknown that the same are also available across the counter in the shops of various chemists. It is further observed that the chemists who may not have ' CALMPOSE' may pass on the medicine ' CALMPROSE to an unwary purchaser as the medicine prepared by the plaintiff. In view of this, the court held that ' the test to be adopted is not the knowledge of the Doctor, who is giving the prescription. The test to be adopted is whether unwary customer who goes to purchase the medicine, can make a mistake. In view of this, the court held that ' the test to be adopted is not the knowledge of the Doctor, who is giving the prescription. The test to be adopted is whether unwary customer who goes to purchase the medicine, can make a mistake. The learned Judge, comparing strips containing medicine manufactured by the parties, i.e. CALMPOSE and CALMPROSE examining dimension of the strips, colour and the writing thereon, arrived at a conclusion that there is an attempt by the defendant to pass off its products as that of the plaintiff. 10. The learned counsel for appellant has failed to satisfy that the learned District Judge has in any way acted arbitrarily or perversely or capriciously or in any way has acted in disregard to the sound legal principles or without considering all the relevant material on record. 11. In view of the aforesaid, the appeal warrants no interference by this court, and as such the same is summarily dismissed.