Judgment S.K. KULSHRESTHA, J. ( 1. ) THIS is defendants appeal under Section 96 of the Code of Civil Procedure against the judgment and decree dated 7/3/2007, passed by the learned 1 st Additional Sessions Judge, Mandleshwar (West Nimar) in Civil Suit No.4-A/2004. ( 2. ) The suit relates to the passing off by the defendantslabel having phonetic similarity i.e., "MALIKCHAND GUTKHA AND PAN MASALA" with "MANIKCHAND PAN MASALA" of the defendants (appellants). At the outset, it may be noted that it is a mammoth fight between the two business tycoons; each claiming prior user than the other of the mark in question. Several pleas have been raised but the first and foremost plea raised by the plaintiff respondent relates to an interlocutory order of temporary injunction which has acquired finality in relation -to the temporary injunction under Or. 39 R. 1 and 2 of the Code of Civil Procedure. The learned counsel for the respondent has, therefore, contended that th re having been no change, not even a full stop or comma, the u/s between the parties is no longer res Integra and, therefore, the judgment and decree impugned do not call for any interference. He has referred to certain dates to expatiate his submissions with regard to the decree having been passed on the same material as obtained at the stage of interlocutory order of temporary injunction. ( 3. ) It has been urged that on 11/5/2004, this Court directed disposal of the suit within six months, but on the matter having been carried further to the Supreme Court, by order dated 25/2/2005, the direction was reaffirmed, but from the date of the order. The case was adjourned thrice on one ground or the other. It was stated that on 10/1/2005, the matter was fixed for cross examination on 29/1/2005, but although the case was called four times on the said date, the counsel for the appellant appeared at the fag end of the day and did not cross examine the witnesses. In the above factual scenario, the case was adjourned to 2/2/2005 and thereafter to 7/2/2005 and then to 11/2/2005. On 8/2/2005 an application filed by the defendants under Section 10 of the CPC was heard and posted for 11/2/2005. In the above factual scenario, the case was adjourned to 2/2/2005 and thereafter to 7/2/2005 and then to 11/2/2005. On 8/2/2005 an application filed by the defendants under Section 10 of the CPC was heard and posted for 11/2/2005. By this application, the defendants sought transfer of the suit to Bombay but on 11/2/2005 again the appellant appeared at the fag end of the day at 4:20 p.m. and arguments were advanced till 6:00 p.m.. The case was adjourned to 15/2/2005 then to 21/2/2005, then to 22/2/2005 and on 22/2/2005 it was posted for cross examination of the witnesses on 28/2/2005. ( 4. ) On 28/2/2005, Mr. Rohit Gupta, Advocate, after arguing applications under Or. 7 R. 11 and Or. 7 R. 14 sought adjournment but when he was directed to cross examine the witnesses, he stated that it would not be possible for him to cross examine the witnesses and the Court may proceed in the manner it desired. It was on the basis of this statement that the case was closed with regard to the right of cross examination. ( 5. ) On 17/3/2005, the case was Fixed for remaining evidence but since appellant did not appear, after hearing final arguments, the case was closed for judgment. It was in this background that the judgment and decree were passed ex-parte. All these dates have been placed on record to appreciate the arguments of the learned counsel for the plaintiffs that not even a full stop or comma was changed after the judgment of the Supreme court in relation to the temporary injunction passed in Dhariwal Industries Ltd., and another Vs. M.S.S. Food Products (2005) 3 SCC 63 . ( 6. ) Before embarking upon consideration of other contentions of the parties in this appeal, it would be apposite to refer to the judgment in Dhariwal Industries Ltd., (supra). After considering the factual matrix of the case, the apex Court held that prima facie it appeared that the mark "MALIKCHAND" was being used, though not much publicised by the original user leading to the alleged acquisition of right to use the mark by the plaintiff. This aspect has not undergone any change whatsoever till the impugned decree was passed. It has also been urged that the defendants appear to have started the use of mark "MANIKCHAND" on a large scale at a subsequent point of time. This aspect has not undergone any change whatsoever till the impugned decree was passed. It has also been urged that the defendants appear to have started the use of mark "MANIKCHAND" on a large scale at a subsequent point of time. It was observed that as noticed by the High Court, both the sides introduced their respective mark for some time and the litigation arose when the defendants approached the High Court of Bombay seeking to prevent the use of "MALIKCHAND" by suing who they thought was the proprietor of the business. The relevant discussion contained in paragraph 12 of the Supreme Court reads as follows : 12. Prima facie, it appears to us that the mark "Malikchand" was being used, though not much publicized by the original user, leading to the alleged acquisition of the right to use the mark by the plaintiff. The defendants appear to have started the use of the mark "Manikchand" in a large scale at a subsequent point of time. As noticed by the High Court, both sides have used their respective marks for some time. The litigation arose when the defendants herein approached the High Court of Bombay seeking to prevent the use of the mark "Malikchand" by suing what they though was the proprietor of the business. It was then that the present plaintiff came forward with the suit seeking an injunction against the user of the mark "Manikchand" by the defendants. To some extent it may be possible to conceive that the present suit by the plaintiff was a counter-blast to the suit filed by the defendants in the High Court of Bombay; but at the same time, the point made by the High Court that the plaintiff probably was apprehensive of its mark being annihilated, had approached the trial Court for relief based on its prior user of the mark. It was in this context that the High Court took the view that the application for interim injunction could not be rejected on the ground of delay and laches. It was in this context that the High Court took the view that the application for interim injunction could not be rejected on the ground of delay and laches. We also feel, that we cannot completely brush aside the argument of counsel for the plaintiff, that the case of delay and laches has not been properly projected on behalf of the defendants in their pleadings either in the trial Court or in the appellate court, though no doubt that aspect has been projected seriously before us by learned counsel for the defendants and to some extent is covered by the pleadings in the written statement. ( 7. ) From the above discussion it is clear that Court was satisfied that there was prima facie case in favour of the plaintiff and irreparable harm would have been caused to him had the said interlocutory order (temporary injunction) not been passed. It also depicts that the balance of convenience even at that stage was in favour of the plaintiffs. The Court has further ruled in paragraph 14 and 15 as follows: 14. In the broader context of this case, we cannot also ignore what has been noticed by the High Court in its order. The High Court has noticed that a number of cases under the Prevention of Food Adulteration Act have been registered against the defendants on the basis of alleged adulteration of the products marketed by the defendants. Even otherwise it is stated, that Gutakha and Pan Masala that are marketed are harmful to health. If they are harmful as claimed, what would be the consequence, when they are adulterated, is an aspect that requires anxious consideration by the authorities concerned. The State cannot ignore the mandate of Article 47 of the Constitution. Any way, that aspect is referred to us only for the purpose of reinforcing the conclusion that ultimately, in the exercise of discretion by this Court, it may not be necessary to interfere with the order of interim injunction granted by the courts below. 15. Thus, on the whole, we are satisfied that the courts below cannot be said to have erred in thinking that the balance of convenience was in favour of the grant of interim injunction in favour of the plaintiff. 15. Thus, on the whole, we are satisfied that the courts below cannot be said to have erred in thinking that the balance of convenience was in favour of the grant of interim injunction in favour of the plaintiff. In any event, we are satisfied that a case for interference under 136 of the Constitution of India is not made out in this case. We, therefore, decline to interfere with the order of the High Court and dismiss this appeal. We direct the trial Court to comply with the direction of the High Court and complete the trial and disposal of the suit, in any event, within a period of six months from this date. ( 8. ) The above said judgment also takes into account the various assignment of the trade marks for the purposes of tacking on prior user of assignor. This takes into account the contention of the learned counsel for the defendants that since there was no proper assignment, it could not be said to be a case of prior user insofar as the plaintiff was concerned. ( 9. ) In the plaint it was averred that the defendant in the phonetic similarity of its product Pan Masala, Gutkha and Supari was manufacturing, packing, selling and distributing for sale the said product in the name of Manikchand which directly constituted phonetic similarity with the product of the plaintiff and, thus, the defendant was passing off the product of the defendant as that of the plaintiff and in any case the two marks created such apparent phonetic similarity that the mark of the defendant was capable of being passed off as the mark of the plaintiff who was using that mark prior to the introduction of Pan Masala and Gutkha by defendant in the name of Manikchand. The name of the plaintiffs product being Malikchand, it was phonetically and fontwise more or less identical and the goods were capable of being passed of as the product of the plaintiff which is associated with the plaintiffs goodwill and the extensive scale at which the product was being sold. ( 10. The name of the plaintiffs product being Malikchand, it was phonetically and fontwise more or less identical and the goods were capable of being passed of as the product of the plaintiff which is associated with the plaintiffs goodwill and the extensive scale at which the product was being sold. ( 10. ) In tracing out the history in relation to prior user, the plaintiff averred that initially his product was being sold by Prabhudayal Choubey in the name of his father Ramprasad alias Malikchand, but in 1959 - 1960, he started selling Supari, Ayurvedic Pan Masala and Ayurvedic Medicine in the said wrapper. This business continued till April - May, 1986 and thereafter the business was transferred to his son Ashok Sharma by assignment. Ashok Sharma was selling the said product in the name of Ashok Pharmaceutical Firm till 10/04/1992 to 1996. it was assigned to Tulsi Stores Proprietor and thereafter in 1996 it was assigned to the plaintiff. The trade mark has, therefore, been since continuously in use 1959 till its assignment to the plaintiff and thereafter till the date of filing of the suit and even now. It is in this backdrop that the respondent (plaintiff) sought relief of injunction against the appellant in re the use of the said label containing the name "Manikchand", its sale and its distribution and against their engaging in advertising these products. It was also claimed that the defendants be called upon to render account of their sale upto 15/3/2004 and damages be granted to the plaintiff. ( 11. ) The defendants filed their written statement in which they traversed the facts stated by the plaintiffs in their plaint. It was denied that the name of the father of Prabhudayal Choubey was Ramprasad alias Malikchand. It was stated that Malikchand had been coined with a view to create evidence to support a false claim. It was also stated that the Company of the respondent No.1 being that of Hindu Undivided Family and Manikchand was the name of the father of defendant.No.3,it was under that name that the product Supari, Gutkha and Tobacco was being sold. It was also stated that the application for Registration of the Mark was made on 22/11/1966 and Registration was obtained in 1968. It was also stated that the application for Registration of the Mark was made on 22/11/1966 and Registration was obtained in 1968. It is from the date of the application for registration that the defendants were carrying on business in the name of Manikchand while Prabhudayals mark containing the name Malikchand has not ever been registered. It was also averred that the product Malikchand was never sold in the market and in this connection a Civil Suit bearing No.575/2004 had been instituted in the Bombay High Court in which the plaintiff had appeared on 10/3/2004. It was stated that these facts were concealed by the plaintiff in the plaint and, therefore, the plaint deserved to be rejected. ( 12. ) The Court framed as many as eight issues and thereafter framed additional issues No.9 and 10. The issues and the findings recorded by the Court below when rendered in English read as follows : (1) Whether the plaintiff YES started its business in the name of Malikchand in the Pan Masala, Supari, Supari Mix from the year 1959-1960 ? (2) Whether the defendants Yes, the defendant has, were using a similar mark without the consent of the Manikchand and plaintiff, used the mark commercially exploiting it ? "Malikchand" in the wrappers which are similar. (3) Whether the defendants Defendants have sold the were using inferior product product which is inferior and in the packets in which they has, thus, caused adverse were selling their product in effect on the business of the the name of Manikchand plaintiff similar to the product Malikchand of the plaintiff, creating an advertising effect on the credit of the plaintiff ? (4) Whether the defendants Not proved were using their mark from the year 1960 and after obtaining the Registration selling their product in their mark ? (5) Whether the defendants YES have made any unlawful gain by using the mark of the plaintiff and that the plaintiff is, therefore, entitled to the account of profits together with delivery of the infringing labels and marks for destruction or erasure ? (6)(a) Whether the suit YES has been valued properly ? (6)(b) Whether the YES plaintiff has paid proper court fees? (7) Whether the plaintiff NO has filed the suit on false premises and if so, whether the defendants are entitled to special costs ? (8) Relief and Costs? As per paragraph 23 of the judgment. (6)(a) Whether the suit YES has been valued properly ? (6)(b) Whether the YES plaintiff has paid proper court fees? (7) Whether the plaintiff NO has filed the suit on false premises and if so, whether the defendants are entitled to special costs ? (8) Relief and Costs? As per paragraph 23 of the judgment. ADDITIONAL ISSUES: (9) Whether the plaintiffs NO suit is liable to be stayed under the provisions of Sec. lO of the CPC? (10) Whether the suit is YES triable by this Court ? ( 13. ) Insofar as the issue No.3 is concerned, the Court has misled itself in referring to the contents of the Pouch whereas the case of passing off relates to the similarity; visual or phonetic. Be that as it may, since the Court has also considered the similarity of name, the parties have made submissions extensively in this behalf and, therefore, a fleeting reference to the judgment cited by the parties is necessary. In view of the judgment of the Supreme Court in Dhariwal Industries Ltd., (supra), the plaintiffs have referred to the decision in Kunhayammed and Ors.. Vs. State of Kerala and another (JT 2000 (9) SC 110) and urged that in view of the doctrine of merger and there being no subsequent change in the factual position, the decree of the trial Court has attained finality and, therefore, no further exercise is necessary to elicit whether after the affirmation of the temporary injunction there is any change to justify a different opinion. It appears that the learned counsel for the plaintiff has not properly appreciated that question of merger arises when superior Court passes an order in relation to the order / judgment / decree passed by a subordinate court. Thus, it would amount to putting a cart before the horse in contending that doctrine of merger applies in the case in hand. The reliance has been placed on the decision of the Supreme Court in Amritdhara Pharmacy Vs. Satya Deo Gupta ( AIR 1963 SC 449 ) prescribing the test to ascertain whether a particular trade mark infringes the mark which is in vogue. Their Lordships were considering the similarity in "Lakshmandhara" and "Amritdhara" in coming to the conclusion that Lakshmandhara" was likely to deceive and confuse persons of the class who generally purchase such preparation. Satya Deo Gupta ( AIR 1963 SC 449 ) prescribing the test to ascertain whether a particular trade mark infringes the mark which is in vogue. Their Lordships were considering the similarity in "Lakshmandhara" and "Amritdhara" in coming to the conclusion that Lakshmandhara" was likely to deceive and confuse persons of the class who generally purchase such preparation. We may emphasise that in the case in hand also the Gutkha is not confined to elite but also to a poor section of society who may get misled by the use of "Manikchand" and "Malikchand". Reference has also been made to a decision in Erven Warnik BV and others Vs. J. Townend and Sons (Hull) Ltd.. and others [1979] All.E.L.R. 927 with regard to the similarity between the word "Advocaat" and Old English Advocaae. In the present case, since phonetic similarity is patent, the action for passing of shall lie with greater vigour. Reference has also been made to Bharati Cellular Ltd., and Anr. Vs. Jai Distillers P. Ltd., ( AIR 2007 Bom. 33 ) where it is said that even if the two products operate in different fields, injunction in respect of such totally dissimilar case can be granted when it is shown that business of plaintiff was of such cross nation reputation and he was dealing in such large variety of products in many fields that it was likely to create confusion that the business of defendant was that of plaintiffs. It is, therefore, clear that even in relation to dissimilar product an injunction suit would lie if the business is on large scale and in diversified fields. ( 14. ) At this stage, we may pause to consider the contention of the defendant that the mark of the defendant is registered. In Heinz Italia and another Vs. Dabur India Ltd., (2007) 6 SCC I, their Lordships have observed that requirement for establishing an action is the prior user for securing injunction in an action for passing off and prior registration of trade mark or similar mark, is irrelevant. Attention has also been invited to the decision of the Supreme Court in Ramdev Food Products (T) Ltd.. Vs. Arvindbhai Rambhai Patel and others (2006) 8 SCC 726 in respect of "Ramdev Masala", to the effect that ordinarily, under the Law, there could only be one mark, one source and one proprietor. Attention has also been invited to the decision of the Supreme Court in Ramdev Food Products (T) Ltd.. Vs. Arvindbhai Rambhai Patel and others (2006) 8 SCC 726 in respect of "Ramdev Masala", to the effect that ordinarily, under the Law, there could only be one mark, one source and one proprietor. The fact highlighted is that there cannot be two parallel marks whether selling the same goods or different goods. In this respect we may also point out that in another- decision of the Supreme Court in N. R. Dongre and others Vs. Whirlpool Corporation and another (1996) 5 SCC 714 , the Supreme Court has ruled that where a trade mark already used by a Company was got registered by another Company through deception to obtain economic benefit of reputation by injuring goodwill and the business of the other company, passing off action by the affected party is maintainable even against the registered owner of the trade mark and the affected party is entitled to protection. Decisions in K.R. Chinna Krishna Chettiar Vs. Sri Ambal and Co. and another ( AIR 1970 SC 146 ), in Consolidated Foods Corporation Vs. Brandon and Co. Pvt. Ltd., (AIR 1965 Born. 35), and M/s. Power Control Appliances and others Vs. Sumeet Machines Pvt. Ltd., (1994) 2 SCC 448 to the effect that acquiescence will not change the complexion as use of trade mark by rival manufacturer is not permissible and hence there is no question of any implied consent, and the judgment in Hindustan Pencils (P) Ltd., Vs. India Stationery Products Co. and another 38 (1989) Del.L.T. 54 to the effect that defence of inordinate delay, laches and acquiescence against the action cannot be accepted once it is shown that the mark of prior user has been impinged. ( 15. ) We have referred to the position of law, only because the cases were cited, although there was no serious debate as regards the two marks being phonetically similar. ( 16. ) Great emphasis has been laid by the defendants on the question of jurisdiction of the Court at Mandleshwar. Reference has been made to Sec.134 of the Trade Marks Act and Sec. 20 of the Code of Civil Procedure. ( 16. ) Great emphasis has been laid by the defendants on the question of jurisdiction of the Court at Mandleshwar. Reference has been made to Sec.134 of the Trade Marks Act and Sec. 20 of the Code of Civil Procedure. Learned counsel for the defendants has urged that it is only when the case is covered by the provisions of Sec. 134 of the Trade Marks Act that the provisions contained in Sec. 20 of the CPC would stand excluded but in the case of passing off, since Sec.134 of the Trade Marks Act does not apply, the case is required to be examined in the light of Sec. 20 of the CPC and if so examined, it would become luculent, manifest and apparent that the trial Court had no jurisdiction, notwithstanding that it was alleged that the Pouches were noticed in the area of Mandleshwar District. Contention of the learned counsel for the appellant is that it is the bundle of facts that determines the jurisdiction of a particular Court. He has stated that in paragraph 15 of the plaint all that has been stated is that when the plaintiff went to Mandleshwar in relation to his other business activities, he saw the offending pouches of Pan Masala, Gutkha, Supari and Supari Mix and it was then that the cause of action accrued and continued in favour of the plaintiff. In paragraph 16, it is on this basis that it is claimed that the Court had jurisdiction. Sec. 134 of the Trade Marks Act, 1999, provides as under :- 134. Suit for infringement, etc., to be instituted before District Court. - (1) No suit - (a) for the infringement of a registered trade mark; or (b) relating to any right in a registered trade mark; or (c ) for passing off arising out of the use by the defendant of any trade mark which is identical with or deceptively similar to the plaintiffs trade mark, whether registered or unregistered, shall be instituted in any court inferior to a District Court having jurisdiction to try the suit. (2) For the purpose of clauses (a) and (b) of sub-section (1), a "District Court having jurisdiction" shall, notwithstanding anything contained in the Code of Civil Procedure, 1908 (5 of 1908) or any other law for the time being in force, include a District Court within the local limits of whose jurisdiction, at the time of the institution of the suit or other proceeding, the person instituting the suit or proceeding, or where there are more than one such persons any of them, actually and voluntarily resides or carries on business or personally works for gain. Explanation.- for the purposes of i section (2), "person" includes the registered proprietor and the registered user. ( 17. ) Sub-section (1) lays down that the suit shall be instituted in the District Court having jurisdiction to try the suit. Sub-section (2), however, makes it clear that for the purposes of infringement of registered trade mark and action relating to any right in a registered trade mark, even the District Court within the limits of whose jurisdiction at the time of the institution of the suit or other proceedings, the person instituting the suit or proceeding actually and voluntarily resides or carries on business or personally works for gain in construing the provision, a Division Bench of Delhi High Court in M/s. Intas Pharmaceuticals Ltd. Vs. Allergan Inc., (AIR 2007 DELHI 108), has observed that the provision of Sec. 134 of the Act do not over ride the provision of Sec. 20 of the CPC, but they provide an additional forum and place for filing suit under the Act. In Dhodha House Vs. S.K.Maingi (2006) 9 SCC 41 , the Supreme Court has ruled that lis under 1958 Act arises where the whole or a part of the cause of action arises. In paragraphs 19 and 20 of the report, it has been observed as follows: 19. Cause of action, as is well settled, is a bundle of facts which are necessary to be proved in a given case. Cause of action, it is trite, if arises within the jurisdiction of the court concerned empowers the court to entertain the matter. Determination of territorial jurisdiction of a civil court is governed by the provisions of the Code of Civil Procedure (for short "the Code"). Section 16 of the Code provides for institution of the suits where the subject-matter of the suit is situate. Determination of territorial jurisdiction of a civil court is governed by the provisions of the Code of Civil Procedure (for short "the Code"). Section 16 of the Code provides for institution of the suits where the subject-matter of the suit is situate. Section 17 of the Code refers to the suits for immovable property within the jurisdiction of different courts. Section 18 refers to the place of institution of a suit where local limits of jurisdiction of courts are uncertain; whereas Section 19 of the Code contemplates suits for compensation for wrongs to persons o movables, Section 20 of the Code wherewith we are concerned in this case provides that the suits which do not come within the purview of Sections 16 to 19 of the Code are to be instituted where the defendants reside or cause of action arises in the following terms : "20. Other suits to be instituted where defendants reside or cause of action arises.- Subject to the limitation aforesaid every suit shall be instituted in a court within the local limits of whose jurisdiction- (a) the defendant, or each of the defendants where there are more than one, at the time of the commencement of the suit, actually and voluntarily resides, or carries on business, or personally works for gain; or (b) any of the defendants, when there are more than one, at the time of the commencement of the suit, actually and voluntarily resides, or carries on business or personally works for gain, provided that in such case either the leave of the court is given, or the defendants who do not reside or carry on business, or personally work for gain, as aforesaid, acquiesce in such institution; or (c ) the cause of action, wholly or in part, arises. Explanation.- A corporation shall be deemed to carry on business at its sole or principal office in India or, in respect of any cause of action arising at any place where it has also a subordinate office, at such place." 20. The jurisdiction of the District Court to determine a lis under the 1957 Act as also the 1958 Act vests in the court where the whole or a part of cause of action arises. Sub-section (2) of Section 62 of the 1957 Act provides for an additional forum therefor, in the following terms : "62. The jurisdiction of the District Court to determine a lis under the 1957 Act as also the 1958 Act vests in the court where the whole or a part of cause of action arises. Sub-section (2) of Section 62 of the 1957 Act provides for an additional forum therefor, in the following terms : "62. (2) For the purpose of sub-section (1), a District Court having jurisdiction shall, notwithstanding anything contained in the Code of Civil Procedure, 1908 (5 of 1908), or any other law for the time being in force, include a District Court within the local limits of whose jurisdiction,at the time of the institution of the suit or other proceeding, the person instituting the suit or other proceeding or, where there are more than on such persons, any of them actually and voluntarily resides or carries on business or personally works for gain. Admittedly, no such additional forum had been created in terms of the provisions of the 1958 Act. ( 18. ) It is, therefore, clear that cause of action having arisen within the territorial jurisdiction of the District Court, Mandleshwar, the suit of the plaintiffs was maintainable and the Court did not suffer from lack of jurisdiction. In this behalf, we may also refer to the decision in Firm Bhagwan Das Ramji Lal and another Vs. Watkins Mayor and Co. AIR (34) 1947 Lahore 289 to the effect that passing off action lies in the Court in District where goods are sent for sale in commercial quantity. In view the position, thus, explained we are of the view that the trial Court was not lacking any jurisdiction in entertaining the suit. We may also point out that if Ss.19 and 20 of the Code of Civil Procedure are read in juxtaposition, the illusion that in such cases the Court where the-articles have been found stored in a large number will not have jurisdiction, is far from reality. ( 19. ) We may reiterate for the purposes of the next contention of the learned counsel for the appellants with regard to the applicability of Or. 18, especially Rr. 4 and 5, that after the direction of the Supreme Court that the trial Court shall decide the case within six months, there was practically no willing participation of the defendants and the defendants always made endeavour to get the case adjourned. 18, especially Rr. 4 and 5, that after the direction of the Supreme Court that the trial Court shall decide the case within six months, there was practically no willing participation of the defendants and the defendants always made endeavour to get the case adjourned. The dates have already been referred hereinabove, but the crucial dates in this behalf are 28/2/2005 when an application under Or. 7 R. 11 was filed and another application under Or. 7 R. 14 was submitted. It was on this date that the counsel for the appellants was asked to cross examine the witnesses but he declined to do so stating that the Court could proceed in whatever manner it wanted. The Court was, therefore, constrained to close the right of the parties to cross examine and the case was fixed on 17/3/2005. On that date the court heard arguments and closed the case for judgment. ( 20. ) The contention of the learned counsel for the appellants is that the Court committed an error in not posting the case for defence evidence and in reserving it for judgment. He has further pointed out that unless the Affidavits were taken on record under Or. 18 R. 4 of the CPC and the documents were exhibited in accordance with the proviso to Rule 4, there was no evidence before the Court for proceeding further much less decreeing the suit. Learned counsel has further submitted that even hypothetically if it is taken that the Affidavits brought on record constituted evidence, ex-parte decree could be passed only when the evidence was reliable. Mere fact that only some witnesses have been examined by the Court, will not be enough for passing an ex-parte decree. Reliance has been placed on the judgment of the Supreme Court in Smt. Sudha Devi Vs. M. P. Narayanan and others (1988) 3 SCC 366 . ( 21. ) The record shows that Affidavit of Nitesh Wadhwani was filed on the basis of the information received by him from Kishore Wadhwani and Ashok Sharma. He has stated that the business was commenced in the year 1959 - 60 and thereafter there was assignment Ex.P/1. This assignment was in writing. Kishore Wadhwani assigned the said mark to the deponent. Original Assignment Deed dated 01/04/1992 was lost with the result application was made to lead secondary evidence and, in fact, such secondary evidence was led. He has stated that the business was commenced in the year 1959 - 60 and thereafter there was assignment Ex.P/1. This assignment was in writing. Kishore Wadhwani assigned the said mark to the deponent. Original Assignment Deed dated 01/04/1992 was lost with the result application was made to lead secondary evidence and, in fact, such secondary evidence was led. Kishore Wadhwani also filed his Affidavit to the effect that business was commenced in 1959 - 60 and it was assigned to him on 01/04/1992. Since original Deed was lost by Nitesh, permission was sought u/s. 65 of the Evidence Act to lead secondary evidence and evidence to that effect was satisfactorily led. The plaintiffs also examined Ashok Sharma son of the original proprietor in support of the assignment deed dated 01/04/1992 (Annexure P/2) bearing his signatures and that of Kishore Wadhwani. Sachin Maheshwari examined to prove the Bills etc., has referred to the correspondence on the subject. Mahendra Nagpal son of a Notary was examined to show that there was assignment vide Annexure P/2 and Padam Kumar Gupta and Mahesh Agrawal gave Affidavit with regard to the advertisement. The precise grievance of the learned counsel is that unless these Affidavits were taken on record, in accordance with R. 4 of Or. 18 and the documents were taken on record in accordance with the proviso to Rule 4, the Affidavits filed did not constitute evidence and, therefore, the claim allowed on that basis was liable to be set aside. Order 18 Rr. 4 and 5, read as follows: 4. Recording of evidence.- (1) in every case, the examination-in-chief of a witness shall be on affidavit and copies thereof shall be supplied to the opposite party by the party who calls him for evidence: Provided that where documents are field and the parties rely upon the documents, the proof and admissibility of such documents which are filed alongwith affidavit shall be subject to the orders of the Court. (2) The evidence (cross -examination and re-examination) of the witness in attendance, whose evidence (examination-in-chief) by affidavit has been furnished to the Court shall be taken either by the Court or by the Commissioner appointed by it: Provided that the Court may, while appointing a commission under this sub-rule, consider taking into account such relevant factors as it thinks fit; (3) The Court of the Commissioner as the case may be, shall record evidence either in writing or mechanically in the presence of the Judge or of the Commissioner, as the case may be, and where such evidence is recorded by the Commissioner he shall return such evidence together with his report in writing signed by him to the Court appointing him and the evidence taken under it shall form part of the record of the suit. (4) The commissioner may record such remarks as it thinks material respecting the demeanour of any witness while under examination: Provided that any objection raised during the recording of evidence before the Commissioner shall be recorded by him and decided by the Court at the stage of arguments. (5) The report of the Commissioner shall be submitted to the Court appointing the commission within sixty days from the date of issue of the commission unless the Court for reasons to be recorded in writing extends the time. (6) The High Court or the district Judge, as the case may be shall prepare a panel of Commissioners to record the evidence under this rule. (7) The Court may by general or special order fix the amount to be paid as remuneration for the services of the Commissioner. (8) The provisions of rules 16,16-A, 17 and 18 of Order XXVI, in so far as they are applicable, shall apply to the issue, execution and return of such commission under this rule. 5. How evidence shall be taken in appealable cases.- In cases in which an appeal is allowed, the evidence of each witness shall be,- (a) taken down in the language of the Court,- (i) in writing by, or in the presence and under the personal direction and superintendence of, the judge, or (ii) from the dictation of the Judge directly on a typewriter; or (b) if the Judge, for reasons to be recorded, so directs, recorded mechanically in the language of the Court in the presence of the Judge. ( 22. ( 22. ) Learned counsel has submitted that as per the decision of the Supreme Court in Ameer Trading Corpn. Ltd.,v. Shapoorji Data Processing Ltd., (2004) 1 SCC 702 , if the Affidavits-are not brought on record under the provisions of Or. 18 R. 4, and the documents have not taken on record under the proviso to the said Rule, the document do not constitute any evidence and, therefore, they are liable to be ignored and consequently decree set aside. It seems that the argument has been advanced on misreading of the said judgment. As a matter of fact, the said judgment holds that presence of a party during examination-in-chief is not imperative when the examination-in-chief is" taken on an Affidavit and in the event the opposite party desires to cross examine the said witness, he would be permitted to do so in the open Court. Paragraphs 33 and 34 of the report read as extracted below: 33. The matter may be considered from another angle. Presence of a party during examination-in-chief is not imperative. If any objection is taken to any statement made in the affidavit, as for example, that a statement has been made beyond the pleadings, such an objection can always be taken before the court in writing and in any event, the attention of the witness can always be drawn while cross - examining him. The defendant would not be prejudiced in any manner whatsoever if the examination-in-chief is taken on an affidavit and in the event he desires to cross-examine the said witness he would be permitted to do so in the open court. There may be cases where a party may not feel the necessity of cross examining a witness, examined on behalf of the other side. The time of the court would not be wasted in examining such witness in open court. (emphasis supplied) 34. Applying the aforementioned principles of interpretation of statute, we have no doubt in our mind that Order 18 Rules 4 and 5 are required to be harmoniously construed. Both the provisions are required to he given effect as to Order 18 Rule 5 cannot be read as an exception to Order 18 Rule 4. (emphasis supplied) ( 23. ) In Salem Advocate Bar Association, Tamil Nadu Vs. Union of India ( AIR 2005 SC 3353 ), while upholding the constitutional validity of Or. Both the provisions are required to he given effect as to Order 18 Rule 5 cannot be read as an exception to Order 18 Rule 4. (emphasis supplied) ( 23. ) In Salem Advocate Bar Association, Tamil Nadu Vs. Union of India ( AIR 2005 SC 3353 ), while upholding the constitutional validity of Or. 18 R. 4, it was observed that Court in appropriate cases can order examination-in-chief and cross- examination to be done by court. Plea that court would be deprived of benefit of watching demeanour witness cannot be a ground to defeat will of legislature Paragraph 5 of the report reads as extracted below : 5. The amendment provides that in every case, the examination-in- chief of a witness shall be on affidavit. The Court has already been vested with power to permit affidavits to be filed as evidence as provided in Order XIX Rules 1 and 2 of the Code. It has to be kept in view that the right of cross examination and re-examination in open court has not been disturbed by Order XVIII Rule 4 inserted by amendment. It is true that after the amendment cross-examination can be before a Commissioner but we feel that no exception can be taken in regard to the power of legislature to amend the Code and provide for the examination-in-chief to be on affidavit or crossexamination before a Commissioner. The scope of Order XVIII Rule 4 has been examined and its validity upheld in Salem Advocates Bar Associations case. There is also no question of inadmissible documents being read into evidence merely on account of such documents being given exhibit numbers in the affidavit filed by way of examination-in-chief. Further, in Salem Advocates Bar Associations case, it has been held that the trial court in appropriate cases can permit the examination-in-chief to be recorded in the Court. Proviso to sub-rule (2) of Rule 4 of Order XVIII clearly suggests that the court has to apply its mind to the facts of the case, nature of allegations, nature of evidence and importance of the particular witness for determining whether the witness shall be examined in court or by the Commissioner appointed by it. The power under Order XVIII Rule 4 (2) is required to be exercised with great circumspection having regard to the facts and circumstances of the case. The power under Order XVIII Rule 4 (2) is required to be exercised with great circumspection having regard to the facts and circumstances of the case. It is not necessary to lay down hard and fast rule controlling the discretion of the court to appoint Commissioner to record cross-examination and re-examination of witnesses. The purpose would be served by noticing some illustrative cases which would serve as broad and general guidelines for the exercise of discretion for instance, a case may involve complex question of title, complex question in partition or suits relating to partnership business or suits involving serious allegations of fraud, forgery, serious disputes as to the execution of the will etc., In such cases, as far as possible, the court may prefer to itself record the cross - examination of the material witnesses. Another contention raised is that when evidence is recorded by the Commissioner, the Court would be deprived of the benefit of watching the demeanour of witness. That may be so but, in our view, the will of the legislature, which has by amending the Code provided for recording evidence by the Commissioner for saving Courts time taken for the said purpose, cannot be defeated merely on the ground that the Court would be deprived of watching the demeanour of the witnesses. Further, as noticed above, in some cases, which are complex in nature, the prayer for recording evidence by the Commissioner may be declined by the Court. It may also be noted that Order XVIII Rule 4, specifically provides that the Commissioner may record such remarks as it thinks material in respect of the demeanour of any witness while under examination. The Court would have the benefit of the observations if made by the Commissioner. ( 24. ) We may point out that in the case in hand, the court was constrained to proceed ex-parte and despite opportunities having been offered to the counsel for the party present before the Court, no effort was made to cross examine the witnesses. Under these circumstances especially when the opportunity to cross examine was not availed, even otherwise, it was not necessary to bring the witnesses to the witness box merely for appearing and stepping down. ( 25. Under these circumstances especially when the opportunity to cross examine was not availed, even otherwise, it was not necessary to bring the witnesses to the witness box merely for appearing and stepping down. ( 25. ) Learned counsel has also referred to the conduct of the respondent and pointed out that the respondent having acquiesced over several years, waived its right to challenge the mark of the defendant. Suffice would be to refer to the judgment of the Supreme Court in M/s. Motilal Padampat Sugar Mills Co. Ltd., Vs. The State of Uttar Pradesh and others ( AIR 1979 SC 621 ) to the effect that waiver means abandonment of a right and it may be either express or implied from conduct, but its basic requirement is that it must be an intentional act with knowledge. There can be no waiver unless the person who is said to have waived is fully informed as to his right and with full knowledge of such right, he intentionally abandons it. In another decision, the High Court of Gujarat in Rupa and Co. Ltd., Vs. Dawn Mills Co. Ltd., 1999 PTC (19) 334 has observed that there cannot be two trade marks and at the most delay in seeking action may defeat the claim to past damages and accounts but not a relief of injunction. We are in respectful agreement with the observations made in the above case. We are of the view that if two marks cannot co-exist generally, the delay can be considered as regards the award of damages but cannot defeat the prayer for injunction. ( 26. ) We have already set out the details with regard to the conduct of the defendants and non-cooperation also to the extent that when the defendants were called upon to cross examine the witnesses, their counsel withdrew stating that Court could proceed in the manner it liked. Since the case was reserved for judgment, learned counsel has submitted by reference to the decision of the Supreme Court in Arjun Singh Vs. Mohindra Kumar and others ( AIR 1964 SC 993 ) that once a case is reserved for judgment. Or. 9 R. 7 does not apply. The contention that ex-parte decree must be passed on the basis of the reliable evidence, founded on the judgment of the Supreme Court in Smt. Sudha Devi Vs. Mohindra Kumar and others ( AIR 1964 SC 993 ) that once a case is reserved for judgment. Or. 9 R. 7 does not apply. The contention that ex-parte decree must be passed on the basis of the reliable evidence, founded on the judgment of the Supreme Court in Smt. Sudha Devi Vs. M. P. Narayanan and others (1988) 3 SCC 366 has already been taken into consideration. Large number of witnesses have been examined and documents exhibited showing prior user of the mark by the plaintiff. Under these circumstances, it cannot be said that the judgment is not based on any admissible evidence or evidence on record. In the case of ex-parte decree, in an application under Or. 9 R. 13, the defendant may question the correctness of the order posting the case for ex-parte hearing and may contend that he had sufficient and cogent reasons for not being able to attend the hearing of the suit on the relevant date. However, these two grounds cannot be raised in a First Appeal against the ex-parte decree u/S. 96. In the First Appeal u/S. 96, the defendant on the merits of the suit can contend that the materials brought on record by the plaintiff were not sufficient for passing a decree in his favour or that the suit was not otherwise maintainable. We have referred to the submissions made by the parties and in view of the scope referred to by the Supreme Court in Bhanu Kumar Jain Vs. Archana Kumar and another (2005) 1 SCC 787 , we find that on merits of this case also decree could have been passed. We may also record that once it is proved that a large quantity of the product has been commercially provided in a particular area, it is not necessary in a passing off action to prove that actual sale of the product has in fact taken place. ( 27. ) It may also be pointed out with reference to the argument of the learned counsel in re the position of law under Or. 18 R. 4 that it was not necessary much less in an ex-parte proceeding to produce the witness in dock and the documents to be taken on record under the proviso to R. 4 Or. 18. ) It may also be pointed out with reference to the argument of the learned counsel in re the position of law under Or. 18 R. 4 that it was not necessary much less in an ex-parte proceeding to produce the witness in dock and the documents to be taken on record under the proviso to R. 4 Or. 18. Therefore, the contention of the learned counsel that an application was filed for production of witnesses and documents in Court which was withdrawn on 17/3/2005 itself shows that the requirement stood defied, is not appealing. Once it was clear that the Court was proceeding ex-parte and in view of the judgments heretofore referred, the course adopted by the plaintiffs in not pressing the application was in tune with the requirement of law. ( 28. ) The contention of the learned counsel that there should be evidence with regard to the loss or likelihood or loss does not merit acceptance. Once it is held that it is not necessary in a passing off action to prove the actual sale when the offending label has been exploited on commercial scale in an area, the evidence with regard to the actual sale is unnecessary and redundant. Delay in absence of volume of sale at best can be pressed into service in resisting the claim for damages. We may also point out that an application was filed by the defendants to ante-date its commencement of sale from the year 1961 to 1958 but no attempt was made to pursue the matter. ( 29. ) Accordingly, though we agree with the trial Court insofar as other reliefs have been granted, the relief of account of profits / damages could not have been awarded to the plaintiffs on account of the delay caused in bringing up the action. At the most, the plaintiffs are entitled to token damages. ( 30. ) Consequently, the relief granted in paragraph 23(c) [23 ( r)], is set aside and, in stead, token relief of Rs. 11.00 lacs (Rs. Eleven Lacs Only) is granted to the plaintiffs. Insofar as the injunction granted vide paragraph No.23(a) and (b) is concerned, it calls for no interference. The appeal is accordingly disposed of. The decree of the trial Court be modified accordingly. No costs. Appeal disposed of.