JUDGMENT : Vivek Varma, J. under Chapter VII, Rule 1(3) of the Allahabad High Court Rules, 1952) 1. By the judgment impugned dated 7th August, 2019, learned Additional District Judge, 23, Kanpur Nagar has dismissed an application preferred by the appellant-plaintiff (hereinafter referred as appellant) under Order 39, Rules 1 and 2 of Code of Civil Procedure, 1908. 2. The material facts of the case are that the appellant is a company incorporated under Companies Act and is engaged in the business and manufacturing and sale of cattle feed. The product of the company is having its brand name and trade mark as “Kapila Pashu Ahar”. 3. The defendant-respondent (hereinafter referred to as the respondent) is also a company incorporated under the Companies Act and is also engaged in the business of manufacture and sale of cattle feed. The Directors of both the companies are from one family. Sarv Sri Saurabh Shivhare and Samir Shivhare Sons of Late Sri Ramesh Shivhare are Directors of the appellant Company and Sri Surendra Nath Shivhare, real brother of Late Sri Ramesh Shivhare is a Director of respondent Company. 4. The respondent Company was formed prior to the appellant and Sarv Sri Ramesh Shivhare and Surendra Nath Shivhare were its owners and promoters. This company had its brand name and trade mark as “Kapila Pashu Ahar” (Trade Mark No.597524). Unfortunately, Sri Ramesh Shivhare died on 2nd July, 2004. After his death a business sale agreement was executed between the respondent and appellant company, in result business of the respondent as a whole was said to be sold to the appellant. 5. An application was preferred by the appellant on 28th March, 2016 in terms of Section 45 of the Trade Marks Act, 1999 before the Deputy Registrar of the Trade Marks. By an order dated 15th December, 2017, the Deputy Registrar ordered that M/s Kapila Krishi Udyog Limited (appellant) shall remain on a register of trade marks as subsequent proprietor of the Trade Mark No.597524. 6. Being aggrieved by the order dated 15th December, 2017, the respondent-petitioner preferred C.M. No.40954 of 2017 before the High Court of Delhi. A Writ Petition (C) No.10037 of 2017 arising out of the same dispute too was under consideration before the Delhi High Court at that time. 6. Being aggrieved by the order dated 15th December, 2017, the respondent-petitioner preferred C.M. No.40954 of 2017 before the High Court of Delhi. A Writ Petition (C) No.10037 of 2017 arising out of the same dispute too was under consideration before the Delhi High Court at that time. The High Court vide its order dated 19th December, 2017 disposed of both the petitions by reserving right of the petitioner to challenge the order dated 15th December, 2017 by availing remedy under Section 57 of the Act of 1999. Validity of the order dated 19th December, 2017 passed by learned single Bench of Delhi High Court was further questioned by the respondent by way of letter patent appeal. The appeal aforesaid came to be disposed of under the order dated 16th April, 2018 that reads as follows:- “In the present appeal, the grievance is with respect to the adverse observations contained in the order of the Deputy Registrar of Trademarks [hereafter “the DR”] dated 15.12.2017. In that order, the appellant was asked to seek its remedies under Section 57 of the Trademarks Act, 1999. It is brought to the notice of the Court that the observations in previous order dated 20.10.2017 on the issue of registration which is the subject matter of the application before the Intellectual Property Appellate Board (IPAB) under Section 91 of the Trademarks Act, would come in the way. In the circumstances, it is hereby directed that neither the observations in the order dated 20.10.2017 nor the observations of the DR in the order dated 15.12.2017 shall be treated as conclusive in any manner nor be deemed to be a reflection on the merits of the appellant’s application for rectification. The appeal is accordingly disposed of.” 7. In the circumstances, it is hereby directed that neither the observations in the order dated 20.10.2017 nor the observations of the DR in the order dated 15.12.2017 shall be treated as conclusive in any manner nor be deemed to be a reflection on the merits of the appellant’s application for rectification. The appeal is accordingly disposed of.” 7. After disposal of the letters patent appeal, the appellant preferred a suit before the Court of learned District Judge, Kanpur Nagar to have a decree of permanent injunction in following terms:- “(A) That the Decree of Permanent Injunction may kindly be passed in favour of the plaintiff and against the defendant suitably restraining the defendants or their trustees, servants, subordinates, representatives, agents and all other person claiming under or/and through them from infringing the use of Plaintiff’s said trademarks and labels, any other trademark containing the words kapila pashu aahaar and the plaintiff’s Registered Trade Mark aforesaid i.e., “Kapila Pashu Aahar”, bearing the Registered Trade Mark No.597524, in any mode or manner. 8. An application as per Order 39, Rules 1 and 2 of the Code of Civil Procedure was also filed by the appellant to have a temporary injunction against the defendant to restrain it from using or interfering or infringing the Trade Mark No.597524. The application aforesaid came to be dismissed by the order impugned dated 7th August, 2019. 9. Learned trial court while dismissing the application examined provisions of the Trade Marks Act, the facts stated by the parties to the proceedings on affidavits and the facts pertaining to the other litigation existing between the parties. The trial court while meeting with the argument advanced on behalf of plaintiff-appellant that in light of the order passed by the single Bench as well as Division Bench of the Delhi High Court, the Trade Mark No.597524 is under absolute ownership of the appellant, noticed that the issue is still alive and is pending consideration before the Intellectual Property Appellate Tribunal. The trial court, on basis of the documents filed by the defendant, also noticed that a suit is also pending before Commercial Court, Kanpur to declare an agreement dated 17th May, 2014 regarding “Kapila Pashu Ahar” void and to prohibit the defendant-respondent to use that as a brand name, which was said to be transferred to the plaintiff-appellant. 10. The trial court, on basis of the documents filed by the defendant, also noticed that a suit is also pending before Commercial Court, Kanpur to declare an agreement dated 17th May, 2014 regarding “Kapila Pashu Ahar” void and to prohibit the defendant-respondent to use that as a brand name, which was said to be transferred to the plaintiff-appellant. 10. The trial court in light of the provisions of Section 38 and Section 41 of the Specific Relief Act held that plaintiff-appellant can have equally effective relief by pursing the issue under Section 57 of the Trade Marks Act before the Intellectual Property Appellate Tribunal. 11. While pressing the present appeal, it is submitted that the trial court failed to appreciate that the trade mark “Kapila Pashu Ahar” was registered in the name of appellant vide order dated 15th December, 2017 and as such the respondent had no right to use the same for its business. Much emphasis is given to the fact that validity of the order dated 15th December, 2017 was affirmed by the Delhi High Court and as such the trial court erred while holding that the appellant may avail relief under Section 41 of the Specific Relief Act. 12. It is further stated that the trial court erred while rejecting the application for injunction on the count of pendency of Suit No.1 of 2016 before the Commercial Court, Kanpur. According to learned counsel for the appellant, the suit aforesaid is founded on a different cause of action and the same has nothing to do with regard to the permanent injunction sought by the appellant in suit proceedings no.4 of 2019. 13. While opposing the appeal and defending the order passed by the trial court learned counsel appearing on behalf of the respondent states that whatever relief claimed by the appellant in Original Suit No.4 of 2019 has also been sought in Original Suit No.01 of 2016. An allegation is also made to the effect that the appellant under valued the suit just to avoid the jurisdiction of Commercial Court, Kanpur Nagar where the Original Suit No.1 of 2016 is pending. 14. It is asserted that an intentional effort is made by the appellant to misrepresent the orders passed by the Delhi High Court in single Bench as well as Division Bench just with a view to avail a temporary injunction by misleading the court. 15. 14. It is asserted that an intentional effort is made by the appellant to misrepresent the orders passed by the Delhi High Court in single Bench as well as Division Bench just with a view to avail a temporary injunction by misleading the court. 15. Heard learned counsels, considered the argument advanced and also perused the documents annexed with the memo of appeal. 16. Before coming on merits of the case, it would be appropriate to mention that an appellate court while hearing a miscellaneous appeal questioning correctness of an order passed under Order 39, Rules 1 and 2 of the Code of Civil Procedure, granting or rejecting a temporary injunction, should be slow in upsetting a decision of a trial court. Merely a possibility of the appellate court to arrive at a different conclusion on basis of the same facts and evidence will not justify interference with an order granting or rejecting temporary injunction. However, the trial court while disposing of an application under Order 39, Rules 1 and 2 of the Code of Civil Procedure must apply its judicial mind to the material which is placed on record. Every piece of evidence produced by the either party must be considered in deciding the existence of a prima facie case to justify issuance of a temporary injunction. No such injunction should be issued unless the court is thoroughly satisfied about existence of prima facie case in addition to the factors pertaining to the balance of convenience and irreparable injury that may be caused to either party. 17. Applying the above principle to the instant case, I may state at the outset that the trial court while rejecting the application has considered the affidavits filed by the plaintiff-appellant in support of the application for temporary injunction and also the affidavits filed on behalf of the respondent. The trial court on going through the plaint of Original Suit No.1 of 2016 concluded that the relief claimed therein is similar to the relief of permanent injunction sought in Original Suit No.4 of 2019. The trial court also examined effect of the proceedings pending before Intellectual Property Appellate Tribunal and held that in light of the relevant provisions of the Specific Relief Act, the appellant may have the same relief in the proceedings aforesaid. The trial court also examined effect of the proceedings pending before Intellectual Property Appellate Tribunal and held that in light of the relevant provisions of the Specific Relief Act, the appellant may have the same relief in the proceedings aforesaid. So far as the orders passed by Delhi High Court are concerned, I am also satisfied that in light of the orders passed in letters patent appeal, it cannot be said that the issue with regard to trade mark has acquired finality between the parties. The Division Bench of Delhi High Court in quite specific terms held that the respondent herein may avail remedy under Section 57 of the Trade Marks Act, 1999 and the observations made by the Deputy Registrar of Trade Marks under order dated 15th December, 2017 as well as under the order dated 20th October, 2017 shall not be treated as conclusive in any manner and shall also not be deemed to the reflection of the merits of the appellant’s application for rectification. 18. In view of whatever stated above, I do not find any just reason to arrive at the conclusion that the trial court failed to appreciate its judicial mind while examining the material available on record or that failed to exercise jurisdiction vested with it while rejecting the application under Order 39, Rules 1 and 2 of the Code of Civil Procedure, 1908. The order is neither perverse nor the trial court failed to exercise or exceeded jurisdiction vested with it. No case hence, is made out for interference in appellate jurisdiction. 19. The appeal hence, is dismissed.