JUDGMENT 1. - An interim injunction was sought by the plaintiff-respondent to restrain the defendant appellant from using the registered trade mark of 'CROREPATI GOLI' and 'CHAMRIA'. Learned court of Additional District Judge No. 2 Sikar vide order dated January 23, 2001 allowed the application mc ./ed under Order 39 Rules 1 and 2 CPC, by the plaintiff-respondent and resi rained the defendant-appellant from producing, selling, packing and carrying on any business or trade mark of 'CROREPATI GOLI' and 'CHAMRIA'. Against this order of the learned court below that the defendant appellant has preferred the instant miscellaneous appeal. The parties hereinafter shall be referred in the same manner as they were arrayed in the suit. 2. Contextual facts depict that a suit for permanent and mandatory injunction was instituted by the plaintiff against the defendant. Alongwith the suit an application under Order 39 Rules 1 and 2 CPC was also filed seeking interim injunction in mandatory form, with the averments that the plaintiff firm was involved in the business of manufacturing, distributing and selling Ayurvedic Choorans, tablets etc. The firm is known by the name of 'CHAMRIA' and its product 'CROREPATI GOLI' was registered under the Trade and Merchandise Marks Act, 1958 and therefore no other person except the firm was entitled to use the said trade mark. The defendant who used to carry on his business in the name of Agarwal Drug Store, did not have any association with the firm. When the defendant started yet another business in the name of M/s. Geegraj Devi Dutt and proceeded to use the name of 'CROREPATI GOLI' and 'CHAMRIA' a criminal complaint was lodged against him and the defendant admitted on July 30, 1958 that he was wrongly using the said names and made a commitment that he would not use the said names in future. For some time he restrained himself and kept his promise but again he started misusing the names of 'CROREPATI GOLI' and 'CHAMRIA'. On these allegations restrained order was asked for by the plaintiff against the defendant. 3. The defendant submitted reply stating therein that plaintiff firm was a Hindu Undevided Firm and there has never been any partition of the Hindu Undevided Family and the family firm got the trade mark 'CROREPATI GOLI' registered in its name 'CHAMRIA' being the name of the caste, was not a registered trade mark. 3. The defendant submitted reply stating therein that plaintiff firm was a Hindu Undevided Firm and there has never been any partition of the Hindu Undevided Family and the family firm got the trade mark 'CROREPATI GOLI' registered in its name 'CHAMRIA' being the name of the caste, was not a registered trade mark. The defendant never made any acknowledgment except that Kamal Kumar under threat of police had got blank papers signed from him. A suit for partition had been instituted by Peeyush in the court of ADJ No. 2 Sikar wherein Kamal Kumar and defendant were also party. During the pendency of the partition suit, present suit was liable to be stayed. The defendant being the son of original partner Shri Geegraj, became a partner of the firm since his birth and therefore was entitled to use the name 'CROREPATI'. In the Registration certificate dated July 18, 1958, plaintiff firm was shown as joint family and Shri Geegraj as Karta therefore the firm cannot be treated to be anybody's personal property. Criminal complaint filed by Kamal Kumar against the defendant was dismissed. Alongwith other legal pleas counter injunction was sought by the defendant to restrain Lal Chand, Shiv Lal, Kashi Prasad, Banwari Lal, Ramavtar etc. from carrying on the business in the name of M/s. Nand Ram Geegraj Chamria and using trade mark 'CROREPATI GOLI' The plaintiff submitted rejoinder. Learned court below after hearing the counsel appearing for the parties issued interim injunction as indicated hereinabove. 4. According to Mr. Kamlakar Sharma learned counsel appearing for the defendant, following grounds disentitle the plaintiff to the interim relief of injunction (i) The firm was an HUF firm, as no partition had even been taken place, the defendant being family member was entitled to use the trade mark. (ii) The defendant was forced to sign blank papers at the Police Station and the alleged agreement dated July 29, 1998 was a forged document and cold not have been relied upon. (iii) Question of partition of the HUF was sub-judice in an another suit and the present suit was liable to be stayed. (iv) Kamal Kumar gave statement in a criminal case on July 28, 1998 wherein he admitted that the defendant was part of HUF, since the defendant had only daughters, he was not given a separate share. i The said statement of Kamal Kumar could not have been overlooked. (iv) Kamal Kumar gave statement in a criminal case on July 28, 1998 wherein he admitted that the defendant was part of HUF, since the defendant had only daughters, he was not given a separate share. i The said statement of Kamal Kumar could not have been overlooked. (v) The suit was not maintainable as it suffers from vice of non-joinder of necessary parties. (vi) Points in respect of balance of convenience and irreparable loss were not in favour of the plaintiff (vii) At the stage of issuing the temporary injunction the court could only maintain status quo and the defendant could not have been restrained from carrying on the business of 'CROREPATI GOLI'. (viii) Word 'CHAMRIA' only depicted the name of the caste and was not a registered trade mark and the defendant could not have been restrained from using the name of 'CHAMRIA'. (ix) No interim relief deciding main controversy could have been granted. Learned counsel placed reliance on Chief General Manager v. Shri Brij Mohan Shukla, 2000 (2) WLC (Raj.) 347 ; Sunder Parmanand v. Caltax (India) Ltd., AIR 1969 Bombay 24 ; Vimal Chand v. State of Rajasthan, 1999 (1) WLC (Raj) 465 ; APW v. Suryanarayaniah, AIR 1969 Madras 126 ; M/s. Hindustan Pencils Ltd. v. M/s. India Stationary Products Co., AIR 1990 Delhi 19 ; Harchand v. Singer Mfg. Co., AIR 1933 Lahore 1046 and A.R. Gangadhara & Co. v. P.M. Rajeshwar & Co., AIR 1962 Andhra Pradesh 510 . 5. Mr. Sagar Mal Mehta, learned Senior Advocate on the other hand supported the impugned order and canvassed that the principles in relation to the grant of interim injunction in trade mark infringement actions are well settled. The plaintiff in the instant case satisfied the court below that its legal right had been infringed and in all probability it will succeed ultimately in the action. Mr. Mehta in support of his contention placed reliance on M/s. Power Control Appliances v. Sumeet Machines Pvt. Ltd., (1994) 2 SCC 448 ; Kirloskar Diesel Recon Pvt. Ltd. v. Kirloskar Proprietary Ltd., AIR 1996 Bombay 149 and Swaran Singh v. M/s. Usha Industries (India) New Delhi, AIR 1986 Delhi 343 . 6. The important question for determination at this stage is whether trade mark 'CROREPATI GOLI' and 'CHAMIRIA' is infringed? If so, whether the plaintiff would be entitled to interim injunction? 7. 6. The important question for determination at this stage is whether trade mark 'CROREPATI GOLI' and 'CHAMIRIA' is infringed? If so, whether the plaintiff would be entitled to interim injunction? 7. The law in relation to the grant of interim injunction has been laid down in American Cyanamid Co. v. Ethicon Ltd., (1975) 1 All England Reporter 504 . As an interim injunction is merely of a provisional nature and does not conclude the rights of the parties in any way the court will exercise its discretion in favour of the plaintiff only in strange cases. The plaintiff must make out a prima facie case in support of his application for the ad interim injunction and must satisfy the court that his legal right has been infringed and in all probability will succeed ultimately in the action. This does not mean, however, that the court should examine in detail the facts of the case and anticipate or prejudice the verdict which might be pronounced after the hearing of the suit or that the plaintiff should make out a case which would entitle him at all events to relief at the hearing. 8. The object of the interlocutory injunction as indicated by their Lordships of the Supreme Court in Wander Ltd. v. Antox India (P) Ltd., 1990 Supp. SCC 726 (Para 9) is "....to protect the plaintiff against injury by violation of his rights for which he could not adequately be compensated in damages recoverable in the action if the uncertainty were resolved in his favour at the trial. The need for such protection must be weighed against the corresponding need of the defendant to be protected against injury resulting from his having been prevented from exercising his own legal rights for which he could not be adequately compensated. The court must weigh one need against another and determine where the 'balance of convenience 'lies.' It was propounded by their Lordships that the court before restraining the defendant, should put into the scales, whether the defendant has yet to commence his enterprise or whether he has already been doing so in which latter case considerations would be somewhat different from those that apply to earlier situation where the defendant is yet to commence his enterprise. 9. An injunction may be refused on the ground of the plaintiff's acquiescence in the defendant's infringement of his right. 9. An injunction may be refused on the ground of the plaintiff's acquiescence in the defendant's infringement of his right. To support a plea of acquiescence in a trade mark case it must be shown that the plaintiff has stood for a substantial period and this encouraged the defendant to expend money in building up a business associated with the mark. It appears from the material on record that the defendant did not plead the ground of acquiescence in the reply. The case of the defendant is that being the family member of undivided HUF firm he is entitled to use the trade mark. Therefore it is to be seen as to whether a trade mark can be used in rivalry and in competition with each other by two members of undivided HUF firm? 10. The Trade and Merchandise Marks Act was passed in the year 1958. Since then it has been amended several times. in view of the extensive amendments necessitated in the Trade and Merchandise Marks Act 1958 it was thought to repeal and re-enact the said Act incorporating the necessary changes and thus the Trade Marks Act, 1999 (for short 1999 Act) was enacted.Section 12 of the 1999 Act provides thus "12. Registration in the case of honest concurrent use etc. In the case of honest concurrent use or of other special circumstances which in the opinion of the Registrar, make it proper so to do, he may permit the registration by more than one proprietor of the trade marks which are identical or similar (whether any such trade mark is already registered or not) in respect of the same or similar goods or services, subject to such conditions and limitations, if any, as the Registrar may think fit to impose. 11. Sub-section (1) of section 28 of 1999 Act provides that the registration of a trade mark shall give to the registered proprietor of the trade mark the exclusive right to the use of the trade mark and to obtain relief in respect of infringement of the trade mark in the manner provided by the Act. 12. As per sub-section (1) of section 135 of 1999 Act, the relief which a court may grant in any suit for infringement, includes injunction and according to sub-section (2) of section 135, the order of injunction may further include exparte injunction or any interlocutory order. 13. 12. As per sub-section (1) of section 135 of 1999 Act, the relief which a court may grant in any suit for infringement, includes injunction and according to sub-section (2) of section 135, the order of injunction may further include exparte injunction or any interlocutory order. 13. Undeniably the defendant in the instant case has not raised the plea of honest and concurrent use of the trade mark and did not seek permission of the Registrar under section 12 of 1999 Act to use the registration of the trade mark by more than one member of the HUF firm. A trade mark can not be used in rivalry and in competition with each other by joint properties as is held by their Lordships of the Supreme court in M/s. Power Control Appliances v. Sumeet Machines Pvt. Ltd., (1994) 2 SCC 448 . It was propounded in para 41 thus "It is a settled principles of law relating to trade mark that there can be only one mark, one source and one proprietor. It cannot have two origins. Where, therefore the first defendant respondent has proclaimed himself as a rival of the plaintiffs and as joint owner it is impermissible in law. Even then, the joint properties must use the trade mark jointly for the benefit of all. It can not be used in rivalry and in competition with each other." (Underlining is mine) 14. From the record, it is prima facie established that 'CROREPATI GOLI' and 'CHAMRIA' are registered trade names and in view of sections 12 and 28 of 1999 Act the points pertaining to prima facie case, balance of convenience and irreparable loss are in favour of the plaintiff firm. The authorities cited by Mr. Kamlakar Sharma, learned counsel for the defendant are distinguishable in the facts and circumstances of the instant case. While deciding, the matter pertaining to issuance of interim injunction in relation to violation of trade mark, provisions contained in 1999 Act cannot be overlooked. Even a member of undivided Hindu Joint Family firm can not be permitted to use the business trade mark of the firm in rivalry and in competition with each other. If he does so he can be restrained by interim injunction. 15. I do not find any illegality in the impugned order. The appeal being devoid of merit stands dismissed without any order as to costs. If he does so he can be restrained by interim injunction. 15. I do not find any illegality in the impugned order. The appeal being devoid of merit stands dismissed without any order as to costs. I however make it clear that whatever I have observed herein will have absolutely no bearing in the trial of the suit which has to be decided independently on its merit. Learned trial court is expected to decide the suit with utmost expedition preferably within six months from the date of receipt of this order.Appeal Dismissed. *******