JUDGMENT : GA 3488 of 2017 1. This is an application praying for injunction in view of the leave granted by the order dated 25th October, 2017 passed by the Hon’ble Division Bench in APO 455 of 2017. The said order dated 25th October, 2017 has been annexed to this application being Annexure-H at page 75. 2. In the present application, the petitioner has canvassed that subsequent to the filing of the suit from an interlocutory order passed in Suit No.475 of 1992, an appeal was filed wherein an order was passed on 8th October, 1993 (Annexure-Y3 at page 31) by which the appeal was disposed of. Paragraph 17 of the said order categorically mentioned that “……………..We have compared the cartons and we have got no doubt in our mind that the cartons are deceptively similar. No records have been produced by the respondent Nos.1 & 2 in support of the allegations of the user of the said mark in relation to the said hair oil. Significantly, the Director of the Drug Controller, West Bengal and Kakdwip Panchayat were sub-ponned to produce the drug licence since 1965, if any, of the first respondent as well as the trade Licence of the first respondent. It transpired that no drug licence was ever obtained the first respondent end the said respondent applied for and obtained a Trade License for dealing in rice and kerosene oil. The appellant built up a goodwill ad reputation or more than a decade whereas the product of the first and second respondents is of recent origin. The rectification application is till pending. Much will depend on the result of the said application.” 3. The present application has been filed by the said appellant/plaintiff stating that in the meantime the application for rectification has been allowed by another order dated 5th August, 2016, a copy of which is appearing at page 59 of the present application. In the said order the Hon’ble Division Bench (where I was also a party) held that “the representative of the appellant gave oral evidence that the mark in question was not used in relation to hair oil. He said no hair oil was sold under the impugned trade mark. The appellant could not be expected to prove the negative. The respondents would have to prove the positive, but they did not adduce any evidence. 4. He said no hair oil was sold under the impugned trade mark. The appellant could not be expected to prove the negative. The respondents would have to prove the positive, but they did not adduce any evidence. 4. The appeal is, therefore, allowed and the judgment and order under appeal is set aside consequently the application under section 46 of the appellant for rectification of the register is also allowed.” 5. After disposal of the said appeal being APO 296 of 2003 wherein the abovementioned order dated 5th August, 2016 has been passed by the Division Bench, the petitioner took out an application for amendment of the plaint which has subsequently been allowed by an order dated 21st November, 2017. The petitioner filed an interlocutory application praying for injunction and on the refusal of the same, an appeal being APO No.455 of 2017 was filed. On an application being GA 3227 of 2017 filed in the said appeal being APO No.455 of 2017, the Hon’ble Division Bench by an order dated 25th October, 2017 observed that “………….On a query from this Court as to whether the plaint pertaining to the suit of 1992 has been amended to incorporate the fact of the cancellation of the registration, it is submitted on behalf of the appellant that no such amendment has been carried out. 6. Since the suit is of the year 1992 and it appears that the interlocutory orders now sought may not be obtained without the plaint being amended to incorporate the subsequent event of cancellation, APO No.455 of 2017 and GA No.3227 of 2017 are disposed of by permitting the appellant to apply for amendment and for interlocutory orders before the suit Court since the suit is ready for hearing……”. 7. Now, since the application for amendment has already been allowed and the plaint stood amended, the petitioner has taken out the present application for injunction. 8. The plaintiff has filed affidavit of service to show that copy of the application has been served upon the defendant no.1. But despite service, no one appears to oppose the prayers made by the petitioner. 9. 8. The plaintiff has filed affidavit of service to show that copy of the application has been served upon the defendant no.1. But despite service, no one appears to oppose the prayers made by the petitioner. 9. On a plain reading of the averments made in the application filed by the petitioner, it appears that justified grounds have been made out in support of the prayer for injunction, particularly when the defendant at the stage when they contested the matter, could not produce a scrap of paper in support of their selling the product marked “C. Karmokar’s Subhasita Bonphool Taila”. Prima facie, the defendants are not entitled to sell the said product in open market. Therefore, the attempt of the defendant to sell the said product in market will tantamount to cause legal injury to the plaintiff. Balance of convenience and inconvenience favours the plaintiff to have an order of injunction. Those apart, the injury which might occur due to the apprehended conduct of the defendant may not be compensated by money. In such circumstances, it would be fit and proper to restrain the defendants by an order of injunction. 10. Since the rectification application has already been allowed, there is no reason to disallow the prayer of the petitioner for injunction. Accordingly, this application is allowed in terms of prayers (a), (b) and (c) of the application. The application is disposed of. Let the suit appear in the list next week.