ORDER Paresh Upadhyay, J. 1. Heard learned advocates. Challenge in this Appeal from Order is made by the original defendant to the order passed by the 2nd Additional District Judge, Gandhidham at Kachchh dated 23.01.2015 below Exhibit-5, in Regular Civil Suit No. 1 of 2015. The operative part of the impugned order reads as under. "Application at Exhibit 5 by plaintiff is allowed. Defendant is hereby restrained from selling or marketing Tea by using trade mark "Patel Tea" which is more particularly described in para-12 of this application till final disposal of the suit. Parties to bear their cost." 2. Learned advocate for the appellant - original defendant has submitted that, the appellant has made an application to the Registrar of the Trade Marks, being TM Application No. 2844301 on 17.11.2014 for the goods Class-30. It is submitted that as per the provisions of the Trade Marks Act, more particularly Section 20 and 21, further procedure is to be followed, such as advertisement of application in the Trade Mark Journal, filing opposition to the registration by any aggrieved party, etc. It is submitted that instead of resorting to the said remedy prescribed under the Act, the present respondent issued legal notice to the appellant on 16.12.2014. It is submitted that the said notice was responded by reply dated 29.12.2014, which is claimed to have been received by the respondent on 06.01.2015. The suit was filed by the present respondent on 03.01.2015. It is in this suit, Exhibit-5 application came to be filed, in which the written statement was filed on 19.01.2015 and the impugned order came to be passed on 23.01.2015, which is quoted above. Learned advocate for the appellant has further submitted that, filing of the suit itself was not maintainable in view of Section 27 of the Act and therefore, the injunction application ought not to have been entertained. From the impugned order itself, it is pointed out that, this contention is specifically referred also by the Trial Court and still, without dealing with that contention, the impugned order is passed. It is submitted that the respondent - original plaintiff is not a bona fide litigant and no restrain order should have been passed against the defendant. From the impugned order itself, it is pointed out that, this contention is specifically referred also by the Trial Court and still, without dealing with that contention, the impugned order is passed. It is submitted that the respondent - original plaintiff is not a bona fide litigant and no restrain order should have been passed against the defendant. It is further submitted that who has infringed whose right, is a matter which needs to be examined by leading evidence and therefore at this stage the grant of injunction was unwarranted. It is submitted that the impugned order be interfered with. 3. On the other hand, Mr. Upadhyay, learned advocate for the respondent - original plaintiff has submitted that, his client also has made an application for registration of Trade Mark to the Registrar, being TM Application No. 2703568 dated 21.03.2014. It is submitted that the further procedure in that regard is underway. It is submitted that under these circumstances, the Trial Court is justified in granting injunction as prayed for. It is submitted that there is mis-representation on the part of the appellant-original defendant that reply was sent on 29.12.2014. It is submitted that the said reply was sent on 05.01.2015, which is received by the plaintiff on 06.01.2015 and therefore the institution of suit on 03.01.2015 can not be termed to have been by suppressing any material fact by the plaintiff. Learned advocate for respondent-original plaintiff has taken this Court through the paper book and also affidavit-in-reply dated 05.02.2015, the copy of which is given to the learned advocate for the appellant, during the course of hearing. It is submitted that the present case is of - passing off, and the Trial Court has rightly granted the injunction and this Court may not interfere. Reliance is placed on the following decisions in support of his submissions. It is submitted that this Appeal from Order be dismissed. (i) 1991 PTC (Suppl) (2) 839 (Guj.) - Duncan Agro Industries Ltd. v. Somabhai Tea Processors (P) Ltd. (ii) 2004 (28) PTC 377 (Guj) - Shree Sainath Industries v. Sainath Auto Industries (iii) 2013 (53) PTC 425 (Guj) - Medicure Hygiene & Another v. Medicare Hygiene Pvt. Ltd. & Ors. (iv) 2013 (53) PTC 606 (Guj) - Rangoli Chemfoods Pvt. Ltd. & Ors. v. Indo Brine Industries Ltd. (v) 2002 (24) PTC 1 (SC) - Laxmikant V. Patel v. Chetanbhai Shah & Anr. (iv) 2013 (53) PTC 606 (Guj) - Rangoli Chemfoods Pvt. Ltd. & Ors. v. Indo Brine Industries Ltd. (v) 2002 (24) PTC 1 (SC) - Laxmikant V. Patel v. Chetanbhai Shah & Anr. 4. Having heard learned advocates for the respective parties and having gone through the material on record, this Court finds as under. 4.1 It is not in dispute that the plaintiff does not have any registered trade mark in his name. 4.2 Section 27 of the Trade Marks Act, 1999 reads as under. "27. No action for infringement of unregistered trade mark - (1) No person shall be entitled to institute any proceeding to prevent, or to recover damages for, the infringement of an unregistered trade mark. (2) Nothing in this Act shall be deemed to affect rights of action against any person for passing off goods or services as the goods of another person or as services proved by another person, or the remedies in respect thereof." 4.3 Though it was attempted to contend on behalf of the original plaintiff that, the present one is the case of passing off, from the plaint itself it is evident that, it is the unregistered trade mark, the infringement of which is alleged by the plaintiff against the defendant. Reference can be made to the averments and the prayer clause itself in the plaint. For this reason, this submission is rejected and it is held that, bar of Section 27(1) of the Act would operate against the plaintiff in the facts of this case. 4.4 In view of above, the plaintiff can not be said to have satisfied the first test of having prima facie case. For this reason, no injunction could have been granted in favour of the plaintiff. The impugned order therefore needs to be interfered with. 5. Who has infringed whose right, or who has committed the misdeed of passing off, is the question which may be gone into by the Appropriate Authority, or after leading evidence in that regard. Further, the timing of institution of the Civil Suit also speaks a lot. It is instituted on 03.01.2015. TM Application No. 2844301 came to be filed by the defendant on 17.11.2014. The further course is provided under the Act. Further, the timing of institution of the Civil Suit also speaks a lot. It is instituted on 03.01.2015. TM Application No. 2844301 came to be filed by the defendant on 17.11.2014. The further course is provided under the Act. Instead of that, legal notice came to be issued on behalf of the plaintiff, the alleged non-reply to which is the foundation of the Civil Suit in question. In the written statement, it is specifically contended that the suit is not maintainable. The same is referred to also in the impugned order, however, the same is not dealt with by the Trial Court. This is the major infirmity in the impugned order. In the facts of this case, the parties should have been left to agitate the grievance before the Appropriate Authority under the Trade Marks Act. As noted above, the contention of the learned advocate for the original plaintiff that this is the case passing off, needs to be rejected. In view of these findings on facts, the judgments cited by the learned advocate for the respondent will not take the case of the original plaintiff any further. The injunction granted by the Trial Court in the facts of this case is therefore unsustainable and the same needs to be suspended. For the reasons recorded above, the following order is passed. 5.1 Appeal from Order No. 27 of 2015 is admitted. 5.2 Civil Application No. 1199 of 2015 is allowed. The impugned order passed by the Trial Court shall remain suspended during the pendency of this Appeal from Order or the Regular Civil Suit No. 1 of 2015, whichever is earlier.