JUDGMENT 1. - Heard learned counsel for the parties. Perused the impugned order dated 22th July, 2000 by which the trial court dismissed the injunction application No. 53/2000 filed by the appellant-plaintiff and the injunction application No. 67/2000 filed in the same suit of the appellant by the defendant respondent. The trial court dismissed the injunction application holding that this is a dispute with respect to the right arising out of the use of Trade Mark and who was the prior user of the Trade Mark can be decided after recording evidence. Another ground given by the trial court is that the Trade Marks of both the parties are not similar. 2. I have perused the impugned order and it is clear from the order that the trial court refused to exercised jurisdiction vested in it for recording finding with respect to the question of fact that who is prior user. The trial court merely mentioned that this question can be decided only after recording evidence. It is a settled law & procedure that the recording of the evidence is to be done in the trial of the suit and not while deciding the injunction application. The trial courts are required to record finding on the basis of the pleadings of the parties and the material available on record and that finding is only prima facie and recorded without recording any evidence. The trial court should not refuse to record finding on vital issue of fact on the ground that this will be decided after recording evidence. If any party failed to substantiate his plea of prima facie case depending upon the fact then after recording prima facie finding the court may refuse the relief or if proved prima facie, can grant the relief. 3. The trial court also categorically mentioned that the plaintiff-appellant failed to produce any details of his sale and any business details of the sale, therefore, it cannot be held that what is the extent of the business of the plaintiff-appellant. While recording this finding, the trial court has not mentioned what was the claim of the plaintiff with respect to his business, what were the documents placed on record, what were the documents considered by the trial court to determine prima facie what was the volume of 1 the business of the plaintiff. While recording this finding, the trial court has not mentioned what was the claim of the plaintiff with respect to his business, what were the documents placed on record, what were the documents considered by the trial court to determine prima facie what was the volume of 1 the business of the plaintiff. It is stated by learned counsel for the appellant that the appellant-plaintiff placed on record several documents in support of his plea of volume of his business and none of the document was considered. Therefore, the above finding cannot be allowed to stand. 4. The trial court also taken note of the pleas of the defendant and held that from the statement it appears that defendant's business is negligible and, therefore, in view of the absence of material for the purpose of determining the volume of the business none of the party is entitled for injunction as there is no prima facie case. The above finding is clearly based upon the assumption rather than the material available on record or in fact by ignoring the material available on record. 5. The trial court also, while deciding whether Trade Marks set up by both the parties are similar to each other or not, has not considered the effect of the admissions of both the parties and there is no mention of any documents, which were examined and considered by the trial court for arriving at the conclusion that both the Trade Marks are not similar. Which evidence produced by the party was accepted and which was rejected is also not recorded. 6. In the matter of injunction, on the basis of Trade Mark, naturally it involves valuable rights of trade of the parties and its infringement (sic) though these matters are required to be examined on the basis of the evidence very carefully and when the trial court failed to exercise its jurisdiction in deciding the prima facie case of prior user and ignored the documents then the trial court has committed not only mistake of fact but also failed to exercise jurisdiction and the order of the trial court deserves to be set aside only on this ground. 7. Hence, the appeal of the appellant is allowed. The order dated 22nd July, 2000 is set aside. 7. Hence, the appeal of the appellant is allowed. The order dated 22nd July, 2000 is set aside. The matter is remanded back to the trial court to decide afresh the injunction application after considering all the documents and the arguments of the parties. It is made clear that no finding has been recorded by this court on any question of fact on the basis of any evidence or record or admission on record, therefore, the trial court will be free to decide all the questions of fact without drawing any inference of this order after taking care in deciding the points in accordance with law.Appeal allowed - Case remanded. *******