Judgment :- Both these appeals have been filed challenging the common order passed by the Principal District Judge, Virudhunagar District at Srivilliputhur dated 16.08.2010 in I.A. No.98 of 2010 in O.S.No.35 of 2010. 2. Brief facts arising out of these appeals are as under:- The appellant in CMA(MD)No.1388 of 2010 is the plaintiff in the suit, and the appellant in CMA(MD) No.1378 of 2010 is the first defendant in the suit. The respondents 2 to 6 in both these appeals are the defendants 2 to 6 in the suit. The plaintiff is a registered partnership firm and they are engaged in the manufacture of fireworks, crackers, sparklers and other allied products in India, since 1923, and also they are selling their fireworks extensively in many parts of India and they have garnered repute among the users of fireworks. The products of the plaintiff are represented by a unique trademark 'COCK' with a device of multi colour rooster inside the two circles in the background of yellow shade devised by the founders of the plaintiff firm and also registered in Class 13 of the Register of Trademarks as early as on 17.08.1954 under Registration No.165412. The plaintiff has been using the same continuously without any interruption and the consuming public also very much associated with the said trademark of the plaintiff. It was alleged in the plaint, by the appellant in CMA 1388 of 2010 that the first defendant / appellant in CMA 1378 of 2010 manufactures and markets inferior quality fireworks under the deceptively similar brand 'DUCK'. It was alleged in the plaint that the first defendant has devised his trademark with the pictogram of 'duck' which in its appearance is very similar to 'cock'. It was alleged in the plaint that the first defendant has devised his trademark with the pictogram of 'duck' which in its appearance is very similar to 'cock'. Therefore, the plaintiff filed a suit in O.S.No.35 of 2010 on the file of the District Judge, Srivilliputhur with the following prayer:- "A. for a permanent injunction restraining the defendants by themselves, their partners / proprietors as the case may be, their respective heirs, legal representatives, successors in business, assigns, servants, agents, distributors, stockists, or any one claiming through or under them from in any manner infringing the plaintiff's registered Trademark a pictogram of 'COCK' as shown in the 'A' Schedule in Registration No.165412 in Class 13 by deceptive and imitative use of a pictogram of 'DUCK' with the very same colour scheme and appearance as shown in the Schedule 'B' amounting to the infringement of the trade mark; B. for a permanent injunction restraining the defendants by themselves, their partners / proprietors as the case may be, their respective heirs, legal representatives, successors in business, assigns, servants, agents, distributors, stockists, or any one claiming through or under them from in any manner infringing the plaintiff's registered Copyright in the artistic work of a pictogram of 'COCK' as shown in the 'A' Schedule in Copyright Registration No.A-85119/2009 by deceptive and imitative use of a pictogram of 'DUCK' with the substantial reproduction of the plaintiff's artistic work with very same colour scheme and appearance as shown in the Schedule 'B' amounting to the infringement of the copyright; C. for a permanent injunction restraining the defendants by themselves, their partners / proprietors as the case may be, their respective heirs, legal representatives, successors in business, assigns, servants, agents, distributors, stockists, or any one claiming through or under them from in any manner passing off and enabling others to pass off their fireworks, crackers, allied products as and for the plaintiff's products by use of the imitative 'DUCK' pictogram as shown in the 'B' Schedule or any other device which is identical to and or deceptively similar to plaintiff's registered Trademark a pictogram of 'COCK' as shown in the 'A' Schedule with a similar colour scheme of yellow background, placement of features, getup and layout or in any other manner whatsoever; D. for a mandatory injunction directing the defendants to deliver up for destruction all the fireworks, crackers, sparklers and other allied products carrying on the offending 'DUCK' labels and its negatives, packing, dies, blocks, screen prints, boards, pamphlets, brochures and such other materials which are identical with and or deceptively similar to the trademark and artistic work 'COCK'; E. for a rendition of accounts, directing the defendants to render true and faithful accounts of profits earned by the sale of 'DUCK' branded crackers, fireworks, sparklers and other allied products using the imitative the trademark of the plaintiff 'COCK'; F. for the costs of this action payable by the defendants; G. for any other further relief as this Hon'ble Court may deem fit and proper under the circumstances of the case and thus render justice." Subsequently, I.A.No.38 of 2010 was filed by the plaintiff under Order 39, Rules 1 and 2 of CPC and prayed for interim injunction till the disposal of the suit restraining the respondents / defendants by themselves, their partners / proprietors as the case may be, their respective heirs, legal representatives, successors in business, assigns, servants, agents, distributors, stockists, or any one claiming through or under them from in any manner infringing the plaintiff's registered Trademark a pictogram of COCK as shown in the schedule 'A' with the very same colour scheme and appearance as shown in the Schedule 'B' amounting to the infringement of the trademark. The first defendant has also filed a counter denying all the allegations stating that the application is devoid of merits and the same should be dismissed. On pleadings, the learned Principal District Judge, Srivilliputhur formulated the following points for disposal:-"(i) Whether 1st respondent / 1st defendant's trade mark namely pictogram of 'duck' so devised in a colour scheme is deceptively similar to trade mark of the petitioner / plaintiff namely 'cock' in the manner in which it has been so devised with a colour scheme as shown in 'A' and 'B' schedule of the application filed by petitioner / plaintiff? (ii) Whether 1st respondent has been using the trade mark 'Duck' as shown in the 'B' Schedule of the injunction application filed by petitioner / plaintiff since 1980 onwards? (iii) Whether petitioner / plaintiff has been using the trade mark 'Cock' as shown in the 'A' Schedule of the injunction application much earlier to the point of time of the use of 'Duck' brand namely trade mark of the 1st respondent? (iv) Whether the petitioner / plaintiff is entitled to get the relief of grant of temporary injunction so as to prevent 1st respondent from using 'Duck' brand as trade mark in the presently devised manner in the background of present colour scheme till the disposal of the suit? (v) To what relief if any is petitioner /plaintiff entitled to?" After considering the oral and documentary evidence, the learned Principal District Judge, Srivilliputhur passed the following order:- "21) In the light of the discussions made above the only conclusion this court is able to arrive at is that there are very close similarities between pictorial device with particular colour combination and colour scheme namely Cock of the petitioner/ plaintiff and pictorial device in the background of colour scheme of the 1st respondent /1st defendant namely Duck and accordingly the provisions of Trade and Merchandise Marks Act, 1958 and 1999 and Copy Right Act, 1957 are attracted and accordingly petitioner / plaintiff has made out a prima facie case for the grant of temporary injunction till the disposal of the suit and further the balance of convenience lies only in favour of petitioner / plaintiff and if temporary injunction is not granted till the disposal of the suit the person who would be subjected to greater amount of loss and hardship is only the petitioner / plaintiff. 22) In the result the 1st respondent/1st defendant and other respondents / defendants are hereby restrained by way of temporary injunction order so as not to use the pictorial device in the given colour scheme namely 'Duck' allotted to 1st respondent / 1st defendant till the disposal of the suit, but as Deepavali is fast approaching and falls on 5.11.2010, this court is not inclined to jeopardise the business prospects of the 1st respondent / 1st defendant and also of the financial position of the workers employed under 1st respondent / 1st defendant and hence the order of temporary injunction granted by this court shall come into force immediately after 5.11.2010 and accordingly this I.A. is allowed on the lines as indicated above." Aggrieved by the same, both the plaintiff and the first defendant have filed the present appeals. 3. Learned counsel for the plaintiff / appellant in CMA 1388 of 2010, has submitted that the portion of the impugned order dated 16.08.2010 giving effect to temporary injunction after 05.11.2010 suffers from serious error in law and facts apparent on the face of records and eludes equity and justice and that the Trial Court ought to have granted absolute injunction as prayed for, by confirming the exparte order already granted. Therefore, the order passed by the Principal District Judge, Srivilliputhur has to be set aside to that extent and the appeal should be allowed. 4. Learned counsel for the first defendant / appellant in CMA 1378 of 2010 has submitted that the finding given by the Principal District Judge, Srivilliputhur is not in accordance with law and also it is not based on valid materials and evidence. The Principal District Judge has not considered the relevant materials and therefore, the order passed by the Principal District Judge has to be set aside and the appeal has to be allowed. It is also alternatively submitted that a suitable direction may be given to the Trial Court to take up the suit itself and dispose of the same as expeditiously as possible. 5. Heard the learned counsel on either side and perused the materials available on record. Both the appeals are filed only against the interim order passed by the Trial Court. 5. Heard the learned counsel on either side and perused the materials available on record. Both the appeals are filed only against the interim order passed by the Trial Court. It is seen from the order that the Trial Court granted injunction restraining the defendants, so as not to use the pictorial device in the given colour scheme namely 'Duck' allotted to the 1st respondent / 1st defendant till the disposal of the suit, and the same was restricted with a further direction that such injunction granted will come into force only after 05.11.2010. It is also pertinent to note that the first defendant also filed an application before the Trademark Authorities for registration. Even though they registered the 'Duck', subsequently due to unavoidable reasons, the same was not renewed. Therefore, they have filed fresh application for registration and the same is pending before the Trademark Authorities. Further both the counsel fairly brought to my notice, the judgment of the Apex Court in the case of Bajaj Auto Limited v. TVS Motor Company Limited reported in (2009) 9 SCC 797 , wherein the Supreme Court has taken a view that in trademarks, copyright and patent cases, the Trial Court should take up the main suit itself and dispose of the same. Paragraphs-8 to 11 of the said judgment reads as under:- "8. Recently, we have held in Special Leave Petition(C) No.21594 of 2009 decided on 07th September, 2009 in the case of M/s.Shree Vardhman Rice & Gen Mills vs. M/s.Amar Singh Chawalwala as follows: "...Without going into the merits of the controversy, we are of the opinion that the matters relating to trademarks, copyrights and patents should be finally decided very expeditiously by the Trial Court instead of merely granting or refusing to grant injunction. Experience shows that in the matters of trademarks, copyrights and patents, litigation is mainly fought between the parties about the temporary injunction and that goes on for years and years and the result is that the suit is hardly decided finally. This is not proper. Proviso(a) to Order XVII Rule 1(2) Code of Civil Procedure, 1908 states that when the hearing of the suit has commenced, it shall be continued from day-to-day until all the witnesses in attendance have been examined, unless the Court finds that, for exceptional reasons to be recorded by it the adjournment of the hearing beyond the following day is necessary. Proviso(a) to Order XVII Rule 1(2) Code of Civil Procedure, 1908 states that when the hearing of the suit has commenced, it shall be continued from day-to-day until all the witnesses in attendance have been examined, unless the Court finds that, for exceptional reasons to be recorded by it the adjournment of the hearing beyond the following day is necessary. The Court should also observe clauses(b) to (e) of the said proviso. In our opinion, in matters relating to trademarks, copyright and patents the proviso to Order XVII Rule 1(2) Code of Civil Procedure, 1908 should be strictly complied with by all the Courts, and the hearing of the suit in such matters should proceed on day to day basis and the final judgment should be given normally within four months from the date of the filing of the suit. 9. As has been observed by us in the aforesaid case, experience has shown that in our country, suits relating to the matters of patents, trademarks and copyrights are pending for years and years and litigation is mainly fought between the parties about the temporary injunction. This is a very unsatisfactory state of affairs, and hence we had passed the above quoted order in the above-mentioned case to serve the ends of justice. We direct that the directions in the aforesaid order be carried out by all courts and tribunals in this country punctually and faithfully. 10. In the present case, although arguments were advanced at some length by the learned counsel for both the parties, we are of the opinion that instead of deciding the case at the interlocutory stage, the suit itself should be disposed of finally at a very early date. 11. Hence, without going into the merits of the controversy, we direct the respondent-defendant to file written statement in the suit, if not already filed, on or before the last date for closing of the Madras High Court for Dussehra holidays. We would request the learned Single Judge who is trying the suit to commence the hearing of the suit on the re-opening of the Madras High Court after Dussehra holidays and then carry it on a day to day basis. No adjournment whatsoever ordinarily will be granted and the suit shall be finally disposed of on or before 30th November 2009." 6. No adjournment whatsoever ordinarily will be granted and the suit shall be finally disposed of on or before 30th November 2009." 6. In the following cases also, the Supreme Court has made an observation that the matter relating to trademarks, copyrights and patents should be finally decided more expeditiously by the Trial Court, instead of merely granting or refusing to grant injunction:- 1) Shree Vardhman Rice and Gen Mills v. Amar Singh Chawalwala ((2009) 10 SCC 257) and 2) Unreported judgment in Civil Appeal Nos.2377-2378 of 2010 dated 15.03.2010, in the case of Cadila Health Care Ltd. & Another v. Sun Pharmaceutical Industries Ltd. 7. Counsel appearing on both the sides, have no objection in remitting the matter to the Trial Court for taking up the suit itself and dispose of the same as per the direction of the Supreme Court in the above cited judgments. Further it was also contended by the learned counsel for the plaintiff / appellant in CMA 1388 of 2010 that there should be interim injunction till the suit is disposed of by the Trial Court, and relied on the following judgments in support of his proposition:- 1) Pankaj Goel v. Dabur India Ltd. (2008(38) PTC 49(Del.)(DB), 2) Midas Hygiene Industries (P) Ltd. and another v. Sudhir Bhatia and others ( (2004) 3 SCC 90 ), 3) Shree Vardhman Rice and Gen Mills v. Amar Singh Chawalwala (cited supra) and 4) In the case of Cadila Health Care Ltd. & Another v. Sun Pharmaceutical Industries Ltd.(cited supra). 8. In the present case, there is no injunction as on today. The Trial Court granted injunction only after 05.11.2010, after taking into consideration of the business necessity. Though the arguments were advanced at some length by the counsel for both the parties, without going into the merits of the controversy, I am of the opinion that instead of deciding the case at the interlocutory stage, the suit itself should be taken up and disposed of at an early date in view of the directions made by the Supreme Court in the above mentioned judgments. Therefore, the impugned order passed by the Trial Court in I.A. No.98 of 2010 in O.S.No.35 of 2010, is set aside, and since no written statement has been filed, the first defendant / appellant in CMA 1378 of 2010 is directed to file written statement in the suit on or before 18.10.2010 before the Trial Court. After filing the written statement, the Trial Court is directed to take up the suit and hear the same on day to day basis and dispose of the suit finally on or before 10.12.2010, after giving opportunity to both the parties in accordance with law. Both the parties are also directed to cooperate with the Trial Court without taking adjournments. The Trial Court must ensure that no adjournment will be granted. 9. In the facts and circumstances of the case, I am of the view that there need not be any interim order against the first defendant / appellant in CMA 1378 of 2010, till the disposal of the suit in view of the above direction given to the Trial Court to take up the suit itself and dispose of the same on or before 10.12.2010. It is also further contended by the counsel appearing for the plaintiff / appellant in CMA 1388 of 2010 that if any delay is caused on the part of the first defendant / appellant in CMA 1378 of 2010, the Trial Court must be directed to grant interim orders. It is also made clear that if there is any delay on the part of the first defendant / appellant in CMA 1378 of 2010, liberty is given to the Trial Court to take up and pass appropriate interim orders in accordance with law. 10. With the above directions, the Civil Miscellaneous Appeals are disposed of. Consequently, M.P. (MD)Nos.1 and 1 of 2010 in CMA(MD)Nos.1378 and 1388 of 2010 are closed. No costs.