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Rajasthan High Court · body

2014 DIGILAW 1054 (RAJ)

ZARI v. ZARI Kilk India Pvt. Ltd.

2014-04-29

ALOK SHARMA

body2014
Judgment This civil mis. appeal has been filed against the order dated 18.11.2013, passed by the Additional District Judge No.5, Jaipur Metropolitan, Jaipur (hereinafter 'the trial court'). Thereby the trial court has allowed the respondent-plaintiff-applicant-company's (hereinafter 'the applicant-Company') application under Order 39 Rule 1 & 2 CPC and injuncted the appellant-defendant-non-applicant-firm (hereinafter 'the non-applicant-firm') from using its trademark “ZARI” (as is appropriately detailed hereinafter) or similarly deceptive mark or otherwise passing off its own manufactures under the mark “ZARI” (by Anu Shankar) as that of the applicant-Company. The applicant-Company states to be a leading manufacturer, trader and retailer of bridal, party wear, traditional and casual wear, sarees, salwar suits, kurtis, lehengas, blouse, bridemaids gown etc. under a registered trademark under class 24 with the word ZARI as stylized since 2005. The applicant-Company's trademark as registered was as under : It was stated that its trademark distinguishes the goods of the applicant-Company from that of others and has purportedly acquired tremendous reputation and goodwill due to high quality of goods sold under it. It was stated that the applicant-Company has seven branches at Jaipur, Mumbai, Bangalore, Raipur, Indore, Jodhpur & Udaipur selling its products sarees, salwar suits, kurti, lehnghas etc. wherefrom its turnover ran into crores of rupees. It was alleged that the non-applicant-firm had adopted and was using a similar trademark “ZARI” for similar goods seeking to take unfair advantage which correspondingly worked to the detriment of the profits, distinct character and reputation attached with the applicant's trademark ZARI. The non-applicant-firm's offending trade mark was centered as the word “ZARI” in capital letters with artistic design deceptively similar and was as under: It was further stated that aside of the registered trademark ZARI in respect of class 24 under the Trade Marks Rules, 2002 (hereinafter 'the Rules of 2002'), the applicant-Company has been allowed registration of the trademark with the word 'ZARI' in respect of other classes of goods such as in 25, 27, 35 and 40. Further applications for registration of the trademark ZARI in more of the classes under the Rules of 2002 was stated to be pending. Further applications for registration of the trademark ZARI in more of the classes under the Rules of 2002 was stated to be pending. In these circumstances, it was claimed stated that the applicant-Company thus had acquired an exclusive right to use the mark/word 'ZARI' on its products in class 24 and others and to restrain others from using the said trademark or a mark deceptively similar or attempt to ride and profit on the applicant-Company's goodwill and reputation by passing off their own manufactures as that of the applicant-Company. The allegation also was that the style of writing of the word 'ZARI' by the non-applicant-firm as also the font, the composition and label design was closely and deceptively similar to the applicant-company's trademark 'ZARI'. It was further submitted that the non-applicant-firm was confusing and deceiving the customers and made them believe that the goods offered to them originated from the applicant-Company. Injunction as an interim measure during the pendency of the main suit for permanent injunction against the non-applicant-firm was sought. In reply to the application under Order 39 Rule 1 & 2 CPC before the trial court, the non-applicant-firm denied the allegations of the applicant-Company on preliminary legal grounds as also on the merit of the applicant-Company's case. To begin with, it was stated that a large number of persons, traders, firms, institutions and companies etc. were using the word 'ZARI' as part of their business and had different labels registered or otherwise including the word 'ZARI'. The word ZARI in common parlance as also in its dictionary meaning meant a thread traditionally made of fine gold and silver for use on traditional Indian, Pakistani garments to weave intricate patterns thereon and had acquired a common connotation in the market to refer to particular kind of clothes and thus being generic in nature could not be subject matter of a trademark in goods of which it was descriptive allowing for monopoly therein. The word ZARI was publici juris beyond individual appropriation by law or otherwise. It was further submitted that in any event no case of infringement could even remotely be made out as the applicant-Company's trademark was not a word mark constituted of the word ZARI alone but was a label mark with the word 'ZARI' part thereof. The word ZARI was publici juris beyond individual appropriation by law or otherwise. It was further submitted that in any event no case of infringement could even remotely be made out as the applicant-Company's trademark was not a word mark constituted of the word ZARI alone but was a label mark with the word 'ZARI' part thereof. The applicant-Company, it was stated, did not have any right in law to use the word 'ZARI' independently of its label registered with the Registrar under the Act of 1999. It was submitted that aside of the aforesaid, the registered label mark of the applicant-Company in issue before the court was quite different, separate from that of the mark used by the non-applicant-firm clearly indicating that the source of the non-applicant-firm's goods was Anju Shankar and thus there was no question of deceiving the customers or creating confusion in their mind to feed on the goodwill and reputation of the applicant-Company's label mark. Emphasising the rival marks as detailed in para 9 of its reply to the application for interim injunction, the applicant-Company submitted that a bare look made the distinction within marks quite apparent and no case of infringement or passing off was thus made out. It was further submitted that the applicant-Company suppressed the fact that the trademark registration certificate in issue in class 24 bearing No.1393507 relied upon by it had a clear disclaimer that the word 'ZARI' in the label mark registered by the Registrar would not confer any “right for the mark ZARI except as substantially shows on the label”. It was thus emphasised that the registration of the applicant-Company's trademark in class 24 was not of the word 'ZARI', but of the whole label with art work/design with the word 'ZARI'. The word 'ZARI' on its own was outside the impact of registration in class 24 relied upon by the applicant-Company. Suppression of this material fact by the applicant-Company disentitled the applicant-Company any equitable relief under Order 39 Rule 1 & 2 CPC. It was submitted that the applicant-Company's pleadings in the application under Order 39 Rule 1 & 2 as also the document filed in support thereof did not disclose any infringement of the label mark registered in favour of the applicant-Company as a whole. It was further pointed out that the applicant-Company applied vide application No.1655802 dated 20.02.2008 for registration of the trademark ZARI. It was further pointed out that the applicant-Company applied vide application No.1655802 dated 20.02.2008 for registration of the trademark ZARI. The said application was however rejected vide order dated 07.01.2010 holding that “with reference to the hearing in the above stated matter, the aforesaid application has been abandoned for want of prosecution and noted as such in the records of the Registry.” It was also submitted that the word ZARI was commonly bona fide used in trade and those in trade honestly using it could not be excluded in law. The non-applicant-firm submitted that in Gujarat, Tamil Nadu States, there even existed associations and institutions to safeguard the interest of the traders trading in ZARI items and products. This fact by itself went to show that numerous persons/entities were using the word 'ZARI' which was evidently and indisputably a generic word descriptive of their business and no exclusive right could be conferred in respect thereof to the applicant-Company or anybody else. It was further pointed out by the non-applicant-firm that as per Section 30 of the Act of 1999, a registered trademark is not infringed when it is used in relation to goods that indicate inter alia the kind, quality, intended purpose etc. When the trademark is registered subject to certain conditions or limitations —as in the present case—use of the mark within the exclusions/limitations was of no event and no infringement on such use would be alleged. On the aforesaid averments and facts detailed in reply to the application for temporary injunction, the non-applicant-firm submitted that the applicant-Company was not entitled to any interim relief as prayed for and the non-applicant-firm could not be injuncted from using the word 'ZARI' in its own separate label—more so in manner wholly distinct from that of the applicant-Company even disclosing the source of its goods as being designed by a partner of the non-applicant-firm Anju Shankar. That left no manner of doubt or confusion or for that matter room for any deception of the consuming public as alleged. That left no manner of doubt or confusion or for that matter room for any deception of the consuming public as alleged. It was submitted that the non-applicant-firm M/s ZARI was a registered partnership firm and carrying on its business since 2012 of designing sarees, Indian dresses and articles of clothing having intricate embroidery work under a distinct and unique label wherein the mark ZARI was written boldly below the devise of a triangle shaped intricate design and the name of the designer/partner Anju Shankar written below the word ZARI. The logo/mark adopted by the non-applicant-firm thus was honest and bona fide in using a word 'ZARI' as descriptive of the nature of the firm's trade like score others and the kind of goods. It was submitted that the claim of the applicant-Company that it alone was the lawful user of the word 'ZARI' per se was patently false and against its own registration under class 24 with exclusion of any right whatsoever over the word 'ZARI'. The non-applicant-firm further submitted that the attempt of the applicant-Company appeared to be to monopolize a common, generic, dictionary word over which no one could claim monopoly in law and it was thus evident that the applicant Company was seeking to traffic in trademark to the prejudice of the non-applicant-firm and the other traders. The colour scheme, design, getup and lay out of the non-applicant-firm's mark/logo was distinctive and invented by the non-applicant-firm and no attempt had been made to even remotely encash on the goodwill of the applicant-Company by the defendant-non-applicant. Reiterating the reputation and goodwill of its own mark/logo which disclosed the source of the goods sold, it was submitted that there was no possibility whatsoever of confusing or deceiving the public into thinking that the non-applicant-firm's goods were that of the applicant-Company with the same characteristics of quality and reliabiilty. The non-applicant-firm therefore prayed that the application for interim relief filed by the applicant-Company be rejected. The non-applicant-firm therefore prayed that the application for interim relief filed by the applicant-Company be rejected. The trial court however on consideration of the matter by its impugned order dated 18.11.2013 allowed the temporary injunction application of the applicant-Company under Order 39 Rule 1 & 2 CPC and injuncted the non-applicant-firm from using its own mark/logo on the premise that it tantamounted to infringement of the applicant-Company's trademark under class 24 and in any event its use fell within the meaning of passing off by the non-applicant-firm of its goods as of the applicant-Company or sourced from it. In its impugned order dated 18.11.2013, the trial court also held that the applicant-Company for its purported trademark in the word “ZARI” was entitled to protection at least for the reason that admittedly on the pleadings of the parties before the court it was the prior user in respect thereof. And the non-applicant-firm had not even applied for the registration of the word “ZARI” as its trademark—word/label. It was further held that the trademarks of the contesting parties before the court were deceptively similar and related to common goods i.e. womens' clothing with the potential of the customers being deceived and/or confused with regard to the goods manufactured and sold by the non-applicant-firm being related to the applicant-Company and being so passed off. The trial court finally held that disclaimer of the Registrar while registering the label mark of the plaintiff-applicant-Company disentitling it from having any exclusive rights in the word “ZARI” alone was of little consequence as the applicant-Company was the prior user of that mark since 2005. Hence this appeal. Mr. Shailen Bhatia with Mr. The trial court finally held that disclaimer of the Registrar while registering the label mark of the plaintiff-applicant-Company disentitling it from having any exclusive rights in the word “ZARI” alone was of little consequence as the applicant-Company was the prior user of that mark since 2005. Hence this appeal. Mr. Shailen Bhatia with Mr. G.D. Bansal, appearing for the non-applicant-firm submitted that the application for interim relief at the instance of the applicant-Company was liable to be dismissed at the outset for having concealed in the plaint and the accompanying application under Order 39 Rule 1 & 2 CPC that the Registrar of Trade Mark while granting registration to the applicant-Company's label mark under registration No.1393507 in class 24 had imposed the following disclaimer : “REGISTRATION OF THIS TRADE MARK SHALL GIVE NO RIGHT TO THE EXCLUSIVE USE OF THE WORD ZARI ON THE LABEL.” It was submitted that this aspect of the matter if disclosed would have negated that the applicant-Company's whole case built on the alleged infringement of its trademark in class 24 on the mere use of the word 'ZARI' without anything more. Counsel submitted that obviously the applicant-Company had no exclusive right over the word ZARI for the goods such as Sarees, Suits, Lehangas, Fabrics and Textile pieces (All class 24). It was submitted that the plaintiff was further guilty of suppression of fact in failing to disclose that the trademark registered under No.1393507 in class 24 was a label not a word mark. The principle of law, counsel submitted, is that different parameters applied for finding infringement qua a label mark on the one hand and the word mark on the other. These concealments were material to the relief sought by the plaintiff-applicant-Company in the application under Order 39 Rule 1 & 2 CPC and as interim relief is an equitable remedy, the trial court ought to have found the concealment fatal and ought to have dismissed the application under Order 39 Rule 1 & 2 CPC at the outset. Yet it was oddly not so done. Yet it was oddly not so done. Counsel submitted that Section 17(1) of the Act of 1999 provides that when a trademark consists of several matters, its registration shall confer on the proprietor exclusive right to the use of the trademark taken as a whole and further that Section 17(2) of the Act of 1999 provides that notwithstanding anything contained, in Section 17(1) qua the exclusive right of the proprietor to use a registered trademark, any part not separately registered by the proprietor as a trademark or any matter contained in the registered trademark which is common to the trade or otherwise of a non-distinctive character shall not confer any exclusive right on the registered owner. Reference has also been made to Section 18(4) of the Act of 1999 which provides that “a registration will be made subject to any conditions or limitations as the Registrar may think fit.” Attention of this Court has also been drawn to Section 28(2) of the Act of 1999 to submit that the exclusive right to the use of a trademark in relation to goods or services is subject to any conditions and limitations to which the registration is made by the Registrar. It was submitted that in this statutory context, the registration of the applicant-Company's label mark with the disclaimer therein conferring no right on the exclusive use of the word “ZARI” by the applicant-Company was a complete negation of the applicant-Company's suit based on the purported infringement consequent to the use of the word ZARI by the non-applicant-firm as part of its logo and the grounds in the application for interim relief laid by the applicant-Company were a non-sequitur. Reference has been made to the judgment of the Hon'ble Supreme Court in the case of Registrar Trade Marks Vs. Ashok Chandra Rakhit Ltd. [ AIR 1955 SC 558 ] wherein the Hon'ble Supreme Court held as under : “It is true that where a distinctive label is registered as a whole, such registration cannot possibly give any exclusive statutory right to the proprietor of the trade mark to the use of any particular word or name contained therein apart from the mark as a whole. As said by Lord Esher in Pinto v. Badman, 1891-8RPC 181 at 191 (J) : "The truth is that the label does not consist of each particular part of it, but consists of the combination of them all". Observations to the same effect will be found also in — 'In re Apollinaris Company's Trade Marks', 1891-2 Ch 186 (K), — 'In re Smoke–less Powder Co. (F) (supra)', — 'In re Clement and Cie L.R., 1900–1 Ch. 114 (L) and — 'In re Albert Baker & Company (B) (supra) and finally in the Tudor case (H), referred to above which was decided by Sargant, J. This circumstance, however, does not necessarily mean that in such a case disclaimer will always be unnecessary. It is significant that one of the facts which give rise to the jurisdiction of the tribunal to impose disclaimer is that the trade mark contains parts which are not separately registered. It is, therefore, clear that the section itself contemplates that there may be a disclaimer in respect of parts contained in a trade mark registered as a whole although the registration of the mark as a whole does not confer any statutory right with respect to that part.” Reliance has also been placed on the judgment of the Delhi High Court in the case of P.P. Jewellers Pvt. Ltd. Vs. P.P. Buildwell Pvt. Ltd. [2009 (41) PTC 217 (DEL)] wherein the Hon'ble Delhi High has held as under : In the instant case, PPJPL and LR Builders claim that PP is a “house mark? and has been used since 1980 for jewellery and in relation to real estate since 1998. This is what needs to be examined first. PPJPL applied for and obtained registrations for the marks PP Jewellers and PPJ in Class 14. Those are the marks under which it conducts its jewellery business. PPJPL never used PP alone. Even for the real estate business the brochures of the commercial complexes of the Plaintiffs depict the usage of the mark 'PP' Towers and the logo PPT. PPJPL applied for and obtained registrations for the marks PP Jewellers and PPJ in Class 14. Those are the marks under which it conducts its jewellery business. PPJPL never used PP alone. Even for the real estate business the brochures of the commercial complexes of the Plaintiffs depict the usage of the mark 'PP' Towers and the logo PPT. Section 17 (1) of the TM Act states that "when a trade mark consists of several matters, its registration shall confer on the proprietor exclusive right to use of the trade mark taken as a whole." This in effect incorporates the law explained by the Supreme Court in Registrar of Trade Mark v. Ashok Chandra Rakhit Limited AIR 1955 SC 558 where the following observations of Lord Esher in Pinto v. Badman 8 RPC 181 were quoted with approval: "The truth is that the label does not consist of each particular part of it, but consists of a combination of them all." [EMPHASIS MINE] Reverting again to the case of Ashok Chandra Rakhit (Supra) counsel submitted that the effect of a disclaimer and a registration has been considered by the Hon'ble Supreme court and it has been held that “the real purpose of requiring a disclaimer is to define the rights of the proprietor under the registration so as to minimize, even if it cannot wholly eliminate, the possibility of extravagant and unauthorised claims being made on the score of registration of the trade marks.” The word ZARI is public juris and commonly used in trade by those manufacturing and selling clothes embroidered with infuriate designs made with silver and gold thread and no person can claim monopoly over the said word. In fact numerable entities use the word ZARI for the reason that it identifies the nature of their trade/business. Examples of such business have been pointed out as under : A.K. ZARI FASHION, GOLDEN BANGLES AND ZARI WORKS, NAZIYA ZARI WORKS, PRIYA ZARI CENTER & EMBROIDERY, QAMAR JAHAN ZARI ART etc. Counsel further submitted that in such circumstances the applicant-Company could claim no monopoly over the word ZARI for multiple reasons. Relying upon Radico Khaitan Ltd. Vs. Examples of such business have been pointed out as under : A.K. ZARI FASHION, GOLDEN BANGLES AND ZARI WORKS, NAZIYA ZARI WORKS, PRIYA ZARI CENTER & EMBROIDERY, QAMAR JAHAN ZARI ART etc. Counsel further submitted that in such circumstances the applicant-Company could claim no monopoly over the word ZARI for multiple reasons. Relying upon Radico Khaitan Ltd. Vs. Carlsberg India Pvt. Ltd. [2011 (48) PTC 1 (Del)] it was further submitted that honest practice in industrial and commercial matters is a statutorily recognized defence and an exception to an infringement and where there is a prima facie material on record to demonstrate that the word used has been a requirement of a trade or trade practice. A case of infringement cannot then be made out from the use thereof. Referring to United Breweries Ltd. Vs. Khodays Breweries Limited Industrial Ltd. [2013 (55) PTC 513] it was submitted that generic word used by various manufacturers dealing in product cannot be appropriated by any manufacturers to claim the exclusive right to the use of the such word [EMPHASIS MINE]. In the aforesaid case, the issue was with regard to use of the words “Black Label” which were used by manufacturers of liquor allover the world and thus no exclusive claim to use the aforesaid words by any manufacturers on the basis of being the registered proprietors of the trademark “Black Label” was countenanced. Again for the purpose of emphasising that the words which are descriptive such as “LOW ABSORB” cannot be used by any entity to the exclusion of others, reference has been made to Marico Ltd. Vs. Agro Tech Foods Ltd. [2010 (44) PTC 736 (Del.)]. Para 6 in the case of Marico Ltd. (Supra) is apposite to the issue in the present petition and is reproduced hereunder : We are of the view that it is high time that those persons who are first of the blocks in using a trade mark which is a purely descriptive expression pertaining to the subject product ought to be discouraged from appropriating a descriptive expression or an expression which is more or less a descriptive expression as found in the English language for claiming the same to be an exclusive trademark and which descriptive word mark bears an indication to the product's kind, quality, use or characteristic etc. This in our view is in accordance with the spirit of various Subsections of Section 9 and Section 30 besides also Section 35 of the Act. The very fact that in terms of Section 9 of the Act, in cases falling therein, there is an absolute ground for refusal of registration of the trademark, the same clearly is an indication of ordinarily a disentitlement from claiming exclusive ownership of a descriptive expression as a trademark. We are in this entire judgment for the sake of convenience only using the expression “descriptive expression” or “descriptive word” or “descriptive trademark” “descriptive” etc. but these expressions are intended to cover cases with respect not only to a descriptive word mark used as a trademark but to all word marks used as trademarks which refer to kind, quality, intended use or other characteristics etc of the goods, and also other ingredients of Section 9(1)(b) and Section 30(2)(a). It was then pointed out, returning to the most celebrated case on the effect of disclaimer in a registration, that the Hon'ble Supreme Court in the case of Registrar Trade Marks Vs. Ashok Chandra Rakhit Ltd. [ AIR 1955 SC 558 ] has held that even though the registration of a trademark confers substantial advantages on its proprietor, it is a notorious fact that there is a tendency on the part of some proprietors to seek to expand their trademarks beyond their legitimate bounds and make exaggerated claim to the exclusive use of parts or matters contained in their trade marks in spite of the fact that they had expressly disclaimed the exclusive use of those parts or matters. It was further held that merely because a mark is registered, injunction will not automatically follow when the validity of the registration is questioned in the pleadings and while deciding whether injunction should be granted or not, a tentative view is required to be taken on the question of the right on the whole of the trademark in the context of conditions and limitations thereto essentially taking into consideration the disclaimer in respect thereof incorporated by the Registrar at the time of registration. Finally reliance was placed upon the judgment of the Hon'ble Supreme Court in the case Skyline Education Institute (India) Private Ltd. Vs. S.L. Vaswani & Anr. Finally reliance was placed upon the judgment of the Hon'ble Supreme Court in the case Skyline Education Institute (India) Private Ltd. Vs. S.L. Vaswani & Anr. [ 2010 (2) SCC 142 ] to contend that where the allegedly infringed trademark is admittedly used by several persons and traders (as in the present case where proprietorship is sought albeit wrongly to the much used word 'ZARI' in the trade), a case for injunction cannot be made out. It was also submitted that as the trademark/logo used by the non-applicant-firm in getup, design and style is different and further specifically declares the product to be designed by Anju Shankar, a partner of the defendant-firm, it was wholly different from that of the applicant-Company's label mark with the word ZARI and evidently no attempt of creating confusion and/or deception in the mind of the public could be prima facie made out to make a case of passing off. It was also submitted that the learned trial court has thus overlooked the very substantial defences of the non-applicant-firm both on fact and law and arbitrarily granted injunction to the plaintiff-applicant-company on the specious ground of prior user—qua a generic word. An injunction on the ground of a prior user in respect of a generic word, counsel submitted, was a wrong premise as the Chancery Division in the case of British Sugar PLC Vs. James Robertson & Sons Ltd. [(1996) RPC 281] has held. Therein the law stated is that no matter how much a manufacturer may have used a descriptive or laudatory (generic) word as its purported trademark, it could never achieve distinctiveness of its goods and what the manufacturer/user did even by using of fancy lettering for such descriptive or laudatory word, it would not turn such a word into a trademark as the law enunciated by Lord Russell in the case of The Shredded Wheat Co. Ltd. Vs. Kelloggs of Great Britain Ltd. [(1940) 57 RPC 137] is that “a word or words to be really distinctive of a person's goods must “generally speaking be incapable of application to the goods of anyone else.” [EMPHASIS MINE]. Pointing out that the business of the non-applicant-firm had admittedly already been commenced, counsel submitted, no injunction ought to have been granted against it as has been done by the trial court, more so in the context of the even otherwise unsustainable case of the applicant-Company. Pointing out that the business of the non-applicant-firm had admittedly already been commenced, counsel submitted, no injunction ought to have been granted against it as has been done by the trial court, more so in the context of the even otherwise unsustainable case of the applicant-Company. To plead overturning of the injunction passed by the trial court, reference was made to the judgment of the Hon'ble Supreme Court in the case of Wander Ltd. & Anr. Vs. Antox India P. Ltd. [1990 Suppl SCC 727] wherein it was held that even though the appeal against an interlocutory order passed in the discretion of the trial court is an appeal on principle and the appellate court will not reassess the material and seek to reach a conclusion different from the one reached by the court, yet where the discretion by the court below has been exercised arbitrarily or capriciously or perversely or where the trial court had ignored the settled principles of law regulating the grant or refusal of the interlocutory injunctions, interference ought to be made. It was submitted by counsel that aside of wrongly invoking of “prior user”, in respect of a generic word commonly used in trade to describe the kind of goods the traders dealt in to negate the very substantial defence of the non-applicant-firm, the court below also overlooked that a generic/descriptive word was incapable of achieving distinctiveness without substantial proof which could not be at the stage of an interlocutory order. The disclaimer on the exclusive right to the word “ZARI” placed by the Registrar on the applicant-company's registration of its label mark under class 24 was not properly addressed and further the trial court also overlooked the fact that admittedly the business of the non-applicant-firm was an ongoing and fledgling business. It was submitted that the Hon'ble Apex Court in the case of Wander Ltd. (Supra) has held as under : Usually, the prayer for grant of an interlocutory injunction is at a stage when the existence of the legal right asserted by the plaintiff and its alleged violation are both contested and uncertain and remain uncertain till they are established at the trial on evidence. The court, at this stage, acts on certain well settled principles of administration of this form of interlocutory remedy which is both temporary and discretionary. The court, at this stage, acts on certain well settled principles of administration of this form of interlocutory remedy which is both temporary and discretionary. The object of the interlocutory injunction, it is stated “...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". The interlocutory remedy is intended to preserve in status quo, the rights of parties which may appear on a prima facie case. The court also, in restraining a defendant from exercising what he considers his legal right but what the plaintiff would like to be prevented, puts into the scales, as a relevant consideration whether the defendant has yet to commence his enterprise or whether he has already been doing so in which latter case considerations somewhat different from those that apply to a case where the defendant is yet to commence his enterprise, are attracted. Counsel submitted that for the reasons above, the order dated 18.11.2013, passed by the trial court restraining the non-applicant-firm from using its own separate unregistered label mark/logo unrelated to that of the applicant-company's registered label mark No.1393507 be set aside. Per contra Mr. N.K. Maloo, Sr. Advocate has submitted that in the applicant company's registered label mark the word “ZARI” is distinctive and had acquired a secondary meaning. The applicant company thus has a statutory right to bring a suit for infringement against any person in breach thereof either by using the registered trade mark per se or a mark with deceptive similarity or guilty of passing off its goods as that of the applicant. It has been submitted that even otherwise the registration of a trade mark itself is evidence of prima facie case for an applicant company to which a right to injunction follows against the attending entity. It has been submitted that even otherwise the registration of a trade mark itself is evidence of prima facie case for an applicant company to which a right to injunction follows against the attending entity. It has been submitted that the non-applicant firm in such a situation could not even be permitted to agitate the defence of the purported invalidity of the registered trade mark of the applicant company in view of section 9 for reasons of section 32 of the Act of 1999. Section 31 further provides that where a trade mark is registered in breach of subsection (1) of section 9, it shall not be declared invalid, if in consequence of the use which has been made of it, it has after registration and before commencement of legal proceedings challenging the validity of such registration, acquired a distinctive character in relation to the goods or services for which it is registered. It was submitted that the applicant company has a turn -over of Rs. 250 crore per annum from the sale of goods using the registered mark in class 24 of the Trade Mark Rules, 2002 (Rules of 2002) Act of 1999 as also the goods with registered trade marks with the word “ZARI” in classes 25, 27, 35 and 40 pertaining to various products such as clothing, suits, lehangas, footwear, business management, advertising, matting, wall hangings, carpet rugs etc. The multiple registrations entail a composite exclusive right to the applicant company to the use of the word “ZARI” in its label mark. Consequently the disclaimer at the time of the registration of its label mark under class 24 vis-à-vis the word “ZARI” would be of no benefit to the non-applicant firm in its defence in the applicant company’s suit against infringement. It was then submitted that the cause of action for the suit was composite and founded upon registration of its multiple trade marks with the word “Zari” in favour of the applicant company in classes 24, 25, 27, 35 and 40 and therefore the nondisclosure of the disclaimer pertaining to the registration in class 24 did not tantamount to concealment of material fact adequate enough to non-suit the applicant company in his quest for interim protection. Reliance has been placed on the Judgment of the Delhi High Court in the case of Cadbury India Ltd. Vs. Reliance has been placed on the Judgment of the Delhi High Court in the case of Cadbury India Ltd. Vs. Neeraj Food Products 2007 (35) PTC 95 (Delhi) to contend that a disclaimer in one trade mark registration without such a disclaimer in other registrations would allow for laying of a suit against infringement. It was submitted that even otherwise the word “ZARI” inter-alia in the in applicant company's registered trade mark under Class 24, has acquired distinctiveness and secondary meaning owing to its user since 2005 with a huge turn over of Rs. 250 crore in the aggregate from the sale of goods in all classes for which it has been registered and in any event the applicant company is the prior user of the said word mark and entitled to all its exclusive benefits having expanded about Rs. 5 crore towards advertisement in the preceding financial year. The goods with the mark “ZARI” were thus inevitably indicative of the goods sourced from the applicant company's stables. Senior Counsel has submitted that dis-similarities in the non-applicant firm's mark with the word “ZARI” under which it is trading, with that of the applicant company was of little consequence- as settled law focuses on similarities not dissimilarities of trade marks when the question of similarity or deceptive similarity arises. While considering the case of infringement of trade mark, the pretentious trade mark which has deceptive similarity with the one registered and also has the capacity to deceive and defraud the customer cannot be allowed to operate. It was submitted that the word “ZARI” was an essential and prominent feature of the applicant company's label mark under Class 24. By the use of the said word “ZARI” in its unregistered trade mark the non-applicant firm in-spite of variation in font, size and even its label design was copying the essential and prominent feature of the applicant company's trade mark to confuse and deceive the public to its advantage and the applicant company's disadvantage and was thus rightly injuncted by the trial Court. Sr. counsel has submitted that visual/ocular appearance of the word “ZARI” in the non-applicant firm's label mark/logo and its phonetics was similar/deceptively similar to that of the applicant company's registered trade mark-a label with the word “ZARI” and indicated to the unsuspecting public that two marks belong to the same entity. Sr. counsel has submitted that visual/ocular appearance of the word “ZARI” in the non-applicant firm's label mark/logo and its phonetics was similar/deceptively similar to that of the applicant company's registered trade mark-a label with the word “ZARI” and indicated to the unsuspecting public that two marks belong to the same entity. It was further submitted that the court while considering a case of infringement or of passing off is required to take into consideration the nature of customers, type of trade and whether any customer seeking to purchase the goods in issue would be confused and deceived into considering and purchasing the non-applicant firm's product as that of the applicant company. On this test the trial court has found that the non-applicant firm using the word “ZARI” in its unregistered label mark/logo was seeking to take advantage of the applicant company's registered trade mark with the word “ZARI” and encash on its goodwill and reputation. It was finally submitted that “ZARI” is not a generic word. For this submission, Sr. Counsel emphasized that were it so the applicant company would not have been allowed to register it as a trade mark without a disclaimer in classes 25, 27, 35 and 40. Submitting that the word “ZARI’ only means a thread of silver, gold or even polyester with a silver or gold plating/lining used for embroidery in clothes, counsel emphasized that it was highly improper for the non-applicant firm's to treat it synonymously with various kinds of products such as sarees, salwar suis, kurties, lehangas, blouse, bride-maids gown etc. Consequently Sr. Counsel submitted, the word “ZARI” was not descriptive in all situations as sought to be made out by the non-applicant firm. It then submitted in the alternative that even if a case of infringement per se or infringement for reasons of deceptive similarity with the applicant company's registered trade mark was not made out, as prior user of the word “ZARI” in its label design since 2005 for sale of sarees, salwar suits, kurtis, lehangas, blouse, bride-maids gown etc, the applicant company was entitled to injunction against the non-applicant firm on the ground of it passing off its goods as that of the applicant company. I have heard the counsel for the applicant company and the non-applicant firm. The case was argued at length over days. Over a dozen judgments cited and consideration thereof made inevitable. I have heard the counsel for the applicant company and the non-applicant firm. The case was argued at length over days. Over a dozen judgments cited and consideration thereof made inevitable. Predictably the exercise will entail detailed evaluation. However, the Court is conscious of the fact that this civil misc. appeal arises only in respect of an interlocutory order of the court below. Hence at the outset it is desirable to state that any view expressed or observation made on the merits of the case will only be prima facie. The trial court while deciding the suit shall be uninfluenced by the outcome of this appeal and proceed to adjudicate the matter in accordance with law on the basis of its evaluation of the evidence of parties before it. The registration of a Trade Mark Act is ordinarily limited to the relevant class it is registered for. Section 28(2) provides that the exclusive right to use of a trade mark registered under section 16 read with section 17 shall be subject to any conditions and limitations to which the registration is subject. Section 30(1) of the Act of 1999 provides that nothing in section 28 of the Act can prevent the use of a registered trade mark by any person for the purpose of identifying goods or services of the proprietor provided, however the use is in accordance with honest practices in industrial and commercial matters and does not entail unfair advantage or detriment to the distinctive character and repute of a trade mark. Section 30(2) of the Act of 1999 provides that a registered trade mark would not be infringed where the use is in relation to goods and services and indicative inter-alia of kind or other characteristic of goods sold or services rendered. Section 30(2)(b) of the Act further provides that a trade mark is also not infringed when it is registered subject to conditions and limitations and defendant operates within the said limitations and conditions. Further section 17 of the Act of 1999 provides that when the trade mark consists of several matters, its registration shall confer on the proprietor exclusive right to the use of the trade mark taken as a whole. Further section 17 of the Act of 1999 provides that when the trade mark consists of several matters, its registration shall confer on the proprietor exclusive right to the use of the trade mark taken as a whole. Sub-section 2 of section 17 of the Act of 1999 clarifies that notwithstanding anything contained in sub-section 1 of section 17 of the Act of 1999 when the trade mark contains a part which is not the subject of a separate application by the proprietor or it is not separately registered by the proprietor as a trade mark or contains any matter which is common in trade or even otherwise is not of distinctive character, the registration shall not confer any exclusive right in the matter forming only a part of the whole of the trade mark so registered. In the instant case the registration No. 1393507 in class 24 as obtained by the applicant company is a label and not a word mark i.e. of “ZARI”. In-fact the applicant company's registration bearing No. 1393507 categorically disclaimed its right to use the word 'ZARI' standing alone- hence the applicant company had on the face of it no exclusive right to the word 'ZARI' per se standing alone in goods covered under Class 24. The apparent reason was that the word ‘ZARI’ is descriptive in nature, generic, common to use in trade and therefore, the registration did not allow the applicant company a monopoly over the said word. Aside of the aforesaid the word ‘ZARI’ per se is not separately registered in favour of the applicant company in class 24 and in terms of section 17 of the Act of 1999 the applicant company does not have any right to a part of its registered trade mark (In this case label mark with the word “ZARI”). The argument with regard to the purported distinctiveness the word ‘ZARI’, as used in the applicant company's mark, has allegedly come to acquire is a matter of evidence to be led before the trial court and evaluated for its probative worth. No market survey of any credible worth or otherwise was filed before the trial court to prima facie show that the word “ZARI” inevitably meant a product of the applicant company. No market survey of any credible worth or otherwise was filed before the trial court to prima facie show that the word “ZARI” inevitably meant a product of the applicant company. A turn-over of Rs.250 crore in respect of all of the products of the applicant company in classes 24, 25, 27, 35 and 40 is of no avail. Nor is the alleged advertisement expenses of Rs. 5 crores by itself enough to allow an automatic conclusion of distinctiveness on that count. Nor by mere use of the word “ZARI” distinctiveness and a secondary meaning can be achieved qua it in the applicant company's registered label mark. On the question of the non-applicant firm passing off its goods under Class 24 as that of the applicant company at this stage it appears that the label, design, font and the colour scheme of the mark of the non-applicant firm albeit unregistered is distinct from that of the applicant company and further the non-applicant firm's trade mark /logo categorically records that its products sarees, lehangas, suits are being designed by Anju Shankar- partner in the firm. This to the public making the purchases qualifies that the goods sold as “ZARI” by the non-applicant firm related to ones designed by Anju Shankar and did not belong to the applicant company. This manner of sale prima facie shows that the non-applicant firm's product were not sourced nor related to the applicant company. In T.V Venugopal v. Ushodaya Enterprises Limited and another 2011 (4) SCC 85 the Hon’ble Apex Court has held that if the word is a generic one for the product being manufactured by the trader, in such a situation it would not constitute action for passing off unless the generic word has become a house-hold name and acquired a distinctiveness and secondary meaning with substantial association with the trader. For this, the Hon’ble Supreme Court has held that a very high standard of proof is required. That was not, to my mind, present before the court below addressing an application under Order 39 Rules 1 and 2 CPC on affidavits alone untested by cross-examination. For this, the Hon’ble Supreme Court has held that a very high standard of proof is required. That was not, to my mind, present before the court below addressing an application under Order 39 Rules 1 and 2 CPC on affidavits alone untested by cross-examination. In Ramdev Food Products (P) Ltd. vs. Arvindbhai Rambhai Patel and others 2006 (8) SCC 726 the Hon’ble Apex Court has reiterated the law that the rights under a registered trade mark can only be exercised in the manner given and not beyond the conditions and limitations of the registration. The mark is to be used as a whole and further that when an injunction is sought on the basis of alleged passing off, the differences in the competing trade mark can be seen and where the get up font colour scheme or anything in the mark indicates that the sources of a product are different, passing of the product cannot prima facie be made out. It has also been held that the evaluation of the degree of probability of the applicant company’s case succeeding is also a question which additionally, apart from the question of prima facie case, balance of convenience and irreparable loss, cannot be avoided consideration in an action for injunction in a trade mark case. In British Sugar PLC Vs. James Robertson & Sons Ltd. (1996 RPC 281), the Chancery Division held that in respect of a descriptive or laudatory words, mere evidence of its use and even recognition of the word as a trademark by 60% of the public would not establish that the said word had acquired a distinctive character. A turnover in 1991-92 of GBP 1.8 million in the traded goods was found of no relevance to claim of distinctiveness and it was held that compelling evidence was needed before the court of mass recognition of the word (upto 90%) in the mind of the public equating the word to the product/s from a particular manufacturer's/trader's stable. To prove that the generic/commonly used word was distinctive and taken by the public at large as a badge of its trade origin relating to the particular trader and had become a household name, the burden was on the plaintiff. In the case of Rich Products Corporation & Anr. Vs. To prove that the generic/commonly used word was distinctive and taken by the public at large as a badge of its trade origin relating to the particular trader and had become a household name, the burden was on the plaintiff. In the case of Rich Products Corporation & Anr. Vs. Indo Nippon Food Ltd. [2010 (42) PTC 660 (Del)] taking an over view of the case law, it was held by the Hon'ble Delhi High Court that the use of generic word as a trademark would by itself not translate into distinctiveness, which to be recognized, should be of an order which displaces the primary descriptive meaning of the word. It was further held that where the trademark was registered with limitations as to the exclusive rights over the descriptive words, no case of infringement of the plaintiff's statutory rights under its registered trademark could be made out by use to the extent of the disclaimer and in fact such use could not even constitute violation of any common law rights that the plaintiff could agitate. Dealing with the allegation of passing off, the Hon'ble Court held that where the allegedly offending trademark leaves no room for any doubt that there was not even the slightest attempt to confuse or deceive the public an action of passing off was liable to fail, more so where the packaging of the defendant has prominently alluded to the fact that the origins of the product were that of the defendant. In the case of Asian Paints Ltd. Vs. Home Solutions Retail (India) Ltd. [2007 (35) PTC 697 (Bom.)], the Hon'ble Bombay High Court held that there could be no exclusivity in case of generic/common words/mark such as “HOME SOLUTONS” as the said common words even in combination were inherently incapable of becoming distinctive of any single person with respect to a product. The Court further held that at the stage of application for interim direction for restraining the defendant from using such generic word, it would not be possible to accept the plaintiff's claim that based upon the such words common purportedly a part of its trademark, it had acquired a unique reputation and exclusive goodwill qua the said words entailing an injunction against the other as sought in his favour. The Hon'ble Bombay High Court relied upon the observation in the case of McCain International Ltd. vs. Country Fair Foods Ltd. & Anr. [1982 (2) PTC 156 (CA)], to emphasis the pitfalls of a contrary view, where it was observed that if a person employing a word or term of well -known signification is able to acquire the right to appropriate a word of ordinarily use in the language to describe his goods and to shut the others out from the use of such descriptive term, he would really acquire a right much more valuable than either a patent or a trademark for himself and his successors in business and would gain the exclusive right not for a limited time as in case of a patent or a trademark, but for all time coming to use the word exclusively in respect of his goods to the exclusion of others desirous of manufacturing and selling them as much as him. On the aforesaid possibility, undesirable as it was, the Court held that “the utmost difficulty should be put in the way of any one who seeks to adopt and use exclusively as his own a merely descriptive term.” (EMPHASIS MINE). The Hon'ble Bombay Court held that mere prior user by the plaintiff of generic words such as in the expression “HOME SOLUTION” could not create exclusive right in favour of the plaintiff much less to claim that it was the inventor of expression “HOME SOLUTION”. The Court further held that the fact that the plaintiff had shown that it had extensive turnover and had incurred substantial expenditure in relation to the advertisement for promoting its product by itself would be of no avail and the plaintiff could not claim exclusivity to the mark “HOME SOLUTION” which was a generic term and descriptive in nature. (EMPHASIS MINE) Reliance has been placed by the counsel for the applicant-Company on the judgment of the Delhi High Court in the case of Cadbury India Ltd. & Ors. Vs. Neeraj Food Products [2007 (35) PTC 95 (Del)] to contend that disclaimer qua the word “ZARI” inserted by the Registrar Trademark while registering the applicant-Company's trademark in class 24 was of no event or any avail to the non-applicant-firm, as it had a registered trademark with the word “ZARI” without disclaimer in classes 25, 27, 35 & 40. Vs. Neeraj Food Products [2007 (35) PTC 95 (Del)] to contend that disclaimer qua the word “ZARI” inserted by the Registrar Trademark while registering the applicant-Company's trademark in class 24 was of no event or any avail to the non-applicant-firm, as it had a registered trademark with the word “ZARI” without disclaimer in classes 25, 27, 35 & 40. Reliance on the aforesaid case to my mind is however inapposite as the case turned on its own facts. There the applicant-Company had 2 registered marks in class 30 one with a disclaimer on the word “GEMS” but the other without any disclaimer on the word “GEMS”. In the instant case the applicant-Company has no trademark without disclaimer on the word “ZARI” in class 24. What it instead has is registration of its trademark without disclaimer of the word “ZARI” in other classes such as 25, 27, 35 and 40 which do not relate to sarees, Lehnghas, suits etc. Contrarily to my mind the said judgment far from supporting the case of the applicant-Company as claimed, supports the case of the non-applicant-firm on another aspect. The Hon'ble Delhi High was of the opinion that “the impact of the disclaimer on a registration certificate is that a person is precluded from brining an infringement action in respect of the trademark registration” where the infringement is alleged by the user of the part covered by the disclaimer. Consequently, the applicant-Company's trademark bearing no.1393507 with a disclaimer from the exclusive right to the word “ZARI” would preclude the applicant-Company from setting up a case of infringement of its trademark under the Act of 1999 by the use of the word “Zari” in respect of goods in class 24. It is no doubt true that the applicant-Company would not however be prohibited from bringing a passing off action in respect of a trademark which though registered contains a disclaimer with regard to any portion thereof. It is no doubt true that the applicant-Company would not however be prohibited from bringing a passing off action in respect of a trademark which though registered contains a disclaimer with regard to any portion thereof. That however is a matter earlier dealt with more specifically with reference to the judgment of the Hon'ble Supreme Court in the case of Ramdev Food Products (Supra) where the Hon'ble Supreme Court has held that in a passing off action deception and confusion is central and where the allegedly offending trademark carries with it different characteristic such as different font, composition and label design and more particularly the source of the origin of the defendant's goods as in the case of the non-applicant-firm indicating that its goods were designed by Anju Shankar a partner of the non-applicant-firm, no possibility of deception confusion could be made out and an injunction on the allegation of passing off not available to the plaintiff-applicant-Company. It has been held in the case of Wander Limited & Anr. (supra) that where the lower court exercises its discretion in granting injunction arbitrarily, perversely or contrary to settled principles, interference by the appellate court would be warranted. In my considered opinion in the case at hand the learned court below has evidently side stepped the substantial and formidable defences of the non-applicant firm and over looked the following aspects: (i) that prior user per se of a generic word as a trade mark or part of a trade mark cannot entail by itself grant of injunction to an applicant company unless there is clinching evidence on record before the trial court that the generic word in terms of section 32 of the Act of 1999 or otherwise has acquired a distinctiveness or a secondary meaning to create a situation that such generic word inevitably relates to the product/s of a specific manufacturer in the minds of the public. There was no requisite evidence on this Count before the trial Court. There was no requisite evidence on this Count before the trial Court. (ii) The legal effect of disclaimer against the use of the word ‘ZARI’ provided in registration No.1393507 given to the applicant company for Class 24; (iii) The irrelevance of the registration of the word ‘ZARI’ as the trade mark for the applicant company in respect of goods under Classes 25, 27, 35 and 40 without disclaimer as the case before the trial court related to goods in class 24 in respect of which the Registrar had imposed a disclaimer that the word “ZARI” outside the label mark would not be the exclusive right of the applicant company and that the non-applicant company was manufacturing and selling goods in Class 24; (iv) that the word ‘ZARI’ was not registered independently as a trade mark for the applicant company in class 24 but as post registration No. 1393507 for the applicant company. And the registration in Class 24 was that of a label mark and not word mark. Under section 17/29 of the Act of 1999 only the registered trade mark as a whole not part/s thereof was enforceable by way of suit for injunction; (v) That “ZARI” was a word of common use/parlance in trade and there was multiple use of the said word along-with other words by traders in the business of sarees, lehangas, suits etc. embroidered in intricate patterns using gold, silver thread; (vi) the trial court did not evaluate the comparative strengths of the respective cases set up by the applicant company and non applicant firm in all their perspective nor evaluated the degree of probability of the applicant company's success which the Hon’ble Supreme Court in the case of Ramdev Food Products (P) Ltd. has required to be seen along-with prima facie case, balance of convenience and irreparable loss for grant of an injunction at the interlocutory stage in suits in trade mark cases. (vii) The court below has also failed to take into consideration the dictum of the Hon’ble Supreme Court in the case of Wander Limited & Anr. (supra) wherein it has been held that while granting an interim injunction in the case of alleged infringement of trade mark/ passing off, the court below should also consider the factum of the non-applicant having already commenced business for it would be uncommon to grant injunction where the business has already been commenced. (supra) wherein it has been held that while granting an interim injunction in the case of alleged infringement of trade mark/ passing off, the court below should also consider the factum of the non-applicant having already commenced business for it would be uncommon to grant injunction where the business has already been commenced. In this case the business of the non-applicant firm had already commenced. The upshot of the aforesaid discussion is that the impugned order dated 18.11.2013 is per emptory in nature in granting interim injunction against the non-applicant firm without consideration of a host of issues (i) to (viii) as detailed here-in-above. It has been passed contrary to the settled principles of law circumventing the consequences in law of the disclaimer in the applicant company's label mark registration under class 24 in finding infringement. There was no prima facie evidence of distinctiveness and secondary meaning in the manner detailed earlier in this judgment having been acquired by the word “ZARI” in the applicant's registered label mark in Class 24. The court below has also over-looked that no possibility of confusion and /or deception obtained prima-facie nor any evidence of probative worth with regard thereto obtained at the interlocutory stage for making out a case of passing off against the non-applicant as the get up, label design, colour scheme of its firm was different from that of the applicant company's registered label trade mark and also that the non-applicant firm's logo/trade mark specifically indicated it goods sold as designed by Anju Shankar- taking away all possibility of confusion and deception by the non-applicant firm in passing off its goods as of the applicant's. The findings of the learned trial court and direction in injuncting the non-applicant firm by its impugned order dated 18.11.2013 are thus perverse to the material on record before it and misdirected in law. Consequently, I would allow the appeal and set aside the impugned order dated 18.11.2013 passed by the learned Addl. District Judge No.5, Jaipur Metropolitan, Jaipur. However, in seeking to balance the equities between the parties as in the cases of Shri Vardhman Rice & General Mills Vs. Consequently, I would allow the appeal and set aside the impugned order dated 18.11.2013 passed by the learned Addl. District Judge No.5, Jaipur Metropolitan, Jaipur. However, in seeking to balance the equities between the parties as in the cases of Shri Vardhman Rice & General Mills Vs. Amarsingh Chawalawala (2009) 10 SC 257 and Bajaj Auto Limited v. TVS Motor Company Ltd. (2009) 9 SCC 797 , I would direct that the non-applicant firm submit its profit and loss accounts to the trial court pertaining to the manufacture and sale of its products under Class 24 since the filing of the suit within a period of one month from today. Similarly accounts of the manufacture and sale by the non-applicant firm of products under class 24 as included in the registration certificate of the applicant company commencing the Month of May 2014 shall be submitted before the trial court by the 10th of the following month with a copy duly receipted in writing by the applicant company or its counsel or alternatively filed in court by the 15th of the following month. The applicant company in the event of its succeeding in the suit would be entitled to all profits made by the non-applicant firm from the manufacture and sale of the goods covered by the applicant company’s trade mark under class 24. The applicant company would also be entitled to claim aside of the profits aforesaid, damages against the non-applicant firm. The trial court is directed to dispose of the applicant company’s suit within a period of four months from the presentation of a certified copy of this order. To facilitate compliance of the directions of this Court, it is directed that the hearing in the suit be conducted as far as possible day to day. No adjournment in the pending suit shall be granted except on a written application giving out the cause of adjournment. Adjournments shall be by a reasoned and speaking order and not otherwise. This appeal is accordingly allowed.