JUDGMENT S M Modak, J. - The issue involved in this appeal is whether the trial Court has used the discretion arbitrarily, capriciously or perversely while allowing the temporary injunction of the plaintiff/respondent. The issue is whether the trial Court was justified in injuncting the defendant/appellant from infringing the registered trade mark of the plaintiff/respondent without giving any finding on the relevant issues. Whether the trial Court has satisfied itself about the trinity test prior to restraining the defendant from passing off its goods as those of plaintiff/respondent. 2. Learned Advocate Shri Agrawal has a grievance about expressing any opinion by this Court on the basis of available materials and if any opinion is expressed it would be in violation of the law laid down in case of Wander Ltd and another vs Antox India Pvt. Ltd,1990 Supp SCC 727. He also relied upon the observations in case of Skyline Education Institute (India) Pvt. Ltd. Vs S.L. Vasawani and another, (2010) 2 SCC 142 . Whereas according to learned Advocate Shri Bhansali there is no lacuna in the order and consideration of the materials [which was already available before the trial Court] by this Court does not amount to violation of the principles laid down in Wander Ltd and another vs Antox India Pvt. Ltd, (supra). 3. So the principal questions which arise before me are - (a) Whether the trial Court has exercised the discretion properly? (b) Whether this Court can consider those materials and can decide the appeal? 4. When I have heard the arguments of learned Advocate Shri Agarawal for the appellant/defendant and learned Advocate Shri Bhansali for respondent/plaintiff and when I have gone through the impugned order along with the record, I found that the learned trial Judge has exercised the discretion arbitrarily without considering the settled principles of law regulating the grounds of temporary injunction. The plaintiff came with the case of infringement of registered trade mark as well as grievance of passing off action. In entire order, I do not find any observation about infringement of registered trade mark and if so infringement of which trade mark belonging to the plaintiff. For this relief, I am of the firm opinion that the trial Court has totally failed in dealing with the issue. 5. In entire order, I do not find any observation about infringement of registered trade mark and if so infringement of which trade mark belonging to the plaintiff. For this relief, I am of the firm opinion that the trial Court has totally failed in dealing with the issue. 5. So far as the grievance of passing off action is concerned, the trial Court has made a feeble attempt in dealing with the issue but finally it failed in addressing the necessary issues. So at the beginning itself I would like to opine that this is a fit case for setting aside the order and remanding the matter to the trial Court for fresh consideration. There are too many loopholes in the order which are difficult to be filled up even if the arguments of learned Advocate Shri Bhansali are accepted. In that view of the matter, I agree with the submissions of learned Advocate Shri Agrawal. So, I have no alternative but to remand the matter. However, I will be failing in my duty if I will remand the matter blindly without making certain observations about the approach of the trial Court. I would like to make few comments what should be the approach of the trial Courts while dealing with such complicated matter. I would also like to make few observations what should be the parameters to be considered by the trial Court after the matter is remanded. With these initial remarks, I would like to give the reasonings for my opinion. 6. When I have decided to remand the matter, I will restrain myself from making any comment on merits of the matter. I would express my opinion only when it is required. GRIEVANCE OF INFRINGEMENT 7. The learned trial Judge while passing operative order restrained the defendant from infringing the plaintiff's registered trade mark 'SHRIPHAL'. Learned Advocate Shri Agrawal read the entire order. He brought to my notice that there is not a single observation about which trade mark was infringed by the defendant. 8. He invited my attention to the details of seven trade marks given in paragraph 14 of the plaint. According to him, the plaintiff's pleading are vague. The plaintiff has nowhere clarified - which trade marks were in existence, - which trade marks were removed and - process of registration was going on in respect of which trade marks. 9. 8. He invited my attention to the details of seven trade marks given in paragraph 14 of the plaint. According to him, the plaintiff's pleading are vague. The plaintiff has nowhere clarified - which trade marks were in existence, - which trade marks were removed and - process of registration was going on in respect of which trade marks. 9. He brought to my notice averments in para 8 of the written statement. The defendant has pleaded about correct status of those seven trade marks. He also brought to my notice that only one trade mark no.1263412 was valid at the time of filing of the suit, even that trade mark is for Detergent Powder and Washing Soap and hence cannot be considered to injunct the defendant. He also bought to my notice one registered trade mark bearing no.2146561 in favour of his client and one trade mark application is under process. According to him, the learned trial Judge ought to have dealt with these contentious issues. 10. Learned Advocate Shri Agrawal, to buttress his submission relied upon the following judgments :- (a) Kaviraj Pandit Durga Dutt Sharma vs Navaratna Pharmaceutical Laboratories, (1965) AIR SC 980 . There was dispute in between two proprietors of trade mark by name NAVRATNA Pharmaceuticals Laboratories belonging to plaintiffs and trade mark by name 'NAVRATNA KALP' belonging to defendant. The suit was decreed and Court decided the tests to be applied in such case. (b) K. Narayanan and another vs S. Murali, (2008) 10 SCC 479 . The defendant filed an application for registration of a trade mark with trade mark registry at Chennai. On that basis plaintiff filed a suit in the High Court of Madras for injunction from passing off the goods. It was held that "mere filing of an application does not give cause of action". Learned Advocate Shri Bhansali tried to contend that analogy will not be applicable because the observations were on the basis of two different territories one in which trade mark application was filed and one wherein suit was filed. (c) Meso Private Limited vs Liberty Shoes Ltd and another, (2019) AIR Bombay 305 . In this case this Court has compared the two trade marks, the wrappers of the perfumes and refused to grant injunction (para 36). (c) Meso Private Limited vs Liberty Shoes Ltd and another, (2019) AIR Bombay 305 . In this case this Court has compared the two trade marks, the wrappers of the perfumes and refused to grant injunction (para 36). This Court dealt with various types of infringements laid down in Section 29 of the said Act and observed that "presumption under Section 29 (3) of the said Act is rebuttable even at a interim stage" (para 27). 11. According to learned Advocate Shri Bhansali, one trade mark as mentioned above was in existence at the time of filing of the suit and another trade mark application no.2960747 was made prior to filing of a suit and process for registration was going on. According to him, it was registered on 31-07-2020 (in spite of willingness of defendant to oppose it and due to subsequent failure to give evidence as contemplated under Rule 45 of the Trade Marks Rules, 2017). According to him, though this trade mark is registered subsequent to passing of the order, the registration relates back to date of filing of application as contemplated under Section 23(1)(b) of the Trade Marks Act. According to him, though three of the registered trade marks were removed from the registry by the Registrar of Trade Marks due to want of paying renewal fee, the trade mark 'SHRIPHAL' has attained a popularity and got recognition. According to him, trade mark 'SHRIPHAL' per se has been registered and the defendant cannot justify its act of selling goods (though they may be different from that of plaintiff) under the pretext that the trade mark of both the parties (valid on the date of suit) pertains to different categories of goods. 12. Learned Advocate Shri Bhansali relied upon the following judgments :- (a) Bhavnesh Mohanlal Amin and another vs Nirma Chemical Works Ltd and another, (2005) 31 PTC 31 (Guj.) There was a dispute raised by a proprietor of registered trade mark NIRMA and NIMA manufacturing Detergent Power etc. and spices, match box etc. Whereas, defendant started the business of marketing flour mills under the trade name NIMA. Even though the type of goods are different, Court was pleased to grant injunction and protection is given to registered trade mark (para 9.1). (b) Industria De Diseno Textile SA vs Oriental Cuisines Pvt Ltd and others, (2015) 63 PTC 153 [Del] . Whereas, defendant started the business of marketing flour mills under the trade name NIMA. Even though the type of goods are different, Court was pleased to grant injunction and protection is given to registered trade mark (para 9.1). (b) Industria De Diseno Textile SA vs Oriental Cuisines Pvt Ltd and others, (2015) 63 PTC 153 [Del] . There was a dispute in between two proprietors of a trade mark one by name ZARA engaged in fashion and lifestyle products on one hand and ZARA TAPASBAR engaged in dining business. The Court was pleased to grant injunction even though their business were different because the defendant tried to encash the reputation of the plaintiff. (c) Needle Industries (India) Limited, Chennai vs Sanjay J aiswal and others, (2002) 24 PTC 646 (DB) (Mad) . Plaintiff was engaged in the business of needles and their trade mark PONY is registered. Whereas, defendant no.1 started manufacturing sewing threads in the name of PONY. Difference in types of good was not considered as a valid defence by the Court. (d) Lupin Laboratories Ltd vs Jain Products, (1999) 19 PTC 118(Bom.) PYRALFIN was the registered mark of the plaintiff engaged in pharmaceutical preparations whereas defendant started using trade mark PYKALFIN. Phonetic similarity was observed and defendant's use was not considered as a honest and injunction was granted. (e) Vardhaman Properties Ltd vs Vardhman Realtech Pvt. Ltd and others, (2016) 67 PTC 24(Del.) Plaintiff has registered his trade mark VARDHAMAN in its real estate business and defendants also started using the mark VARDHAMAN in their business activities. Court has considered the scope of Section 29 of the Trade Marks Act. Even though the defendants may use the word VARDHAMAN with prefix or suffix, it was held to confuse and to deceive the customers and hence injunction was granted. (f) Ruston and Hornby Ltd vs Zamindara Engineering Co., (1970) AIR SC 1649 . Plaintiff registered trade mark was RUSTON in diesel engines and defendant started manufacturing and selling the same products under the trade name RUSTAM. Once the trade marks are identical, Court need not inquired whether it is likely to cause confusion. CONCLUSION 13. I have tried to read the judgments relied upon by both the sides. Plaintiff registered trade mark was RUSTON in diesel engines and defendant started manufacturing and selling the same products under the trade name RUSTAM. Once the trade marks are identical, Court need not inquired whether it is likely to cause confusion. CONCLUSION 13. I have tried to read the judgments relied upon by both the sides. There cannot be any dispute about the proposition that when plaintiff is having registered trade mark, it needs to be protected when trade mark of defendant falls under any of the categories laid down in Section 29 of the said Act. After reading the above referred judgments it can certainly said that Court has to record the observations that trade mark of the plaintiff is registered. Only when trade mark is registered, the proprietor gets protection. Now the issue is whether on the basis of the ratio laid down in above mentioned judgments, this Court can appreciate the materials and can arrive at a conclusion. 14. As said above the trial Court has not whispered anything about any registered trade mark of the plaintiff and that too which was in existence at the time of filing of the suit. The trial Court has not opined anything about the class of goods for which the plaintiff's trade mark and that of the defendant was in existence at the time of filing of a suit. Whether trial Court was not expected to compare the trade mark of the plaintiff and that of defendant and to arrive at a finding that whether later mark is deceptively similar? Whether trial Court was not expected to opine what is the effect of registration of trade mark of defendant? Whether trial Court was not expected to opine when there is a dispute amongst two registered proprietors, amongst them who is to be given preference? Plaintiffs' registered mark is in respect of Detergent Powder and Soap, trademark application pending for agarbatti, dhupbatti etc. and having expired registered marks in respect of goods scent, perfume, Agarbatti, Dhoop on one hand and defendant's registered mark is in respect of Camphor and Candles and another trademark application pending for registration. On this background, it was more than necessary for the trial Court to decide what are its effect. and having expired registered marks in respect of goods scent, perfume, Agarbatti, Dhoop on one hand and defendant's registered mark is in respect of Camphor and Candles and another trademark application pending for registration. On this background, it was more than necessary for the trial Court to decide what are its effect. In fact in above referred judgments relied upon by both the sides, various parameters and tests have been laid down and unfortunately trial Court has not cared to consider the basic parameters. 15. Here I would like to say few things on the claim of two registered proprietors against each other if they deal with similar goods. Section 28(1) of the said Act gives exclusive right when there is a single registered proprietor. However, this is not the position wherein there are two registered proprietors. Against each other they are not having exclusive right over the trade mark. They can claim exclusive right only when they are exercising the right against the third party. This is what contemplated under Section 28(3) of the said Act. So after the remand the trial Court is expected to deal with these issues and then to arrive at its findings. SUBSEQUENT DEVELOPMENT 16. It is true that the plaintiff has pleaded about the process for registering the trade mark application no.2960747 and opposition by the defendant. It is in paragraph 30 of the plaint. It is also true that the plaintiff as per the affidavit dated 11-08-2020 has brought on record the order passed by the Registrar about registration of that trade mark and failure of defendant to give evidence thereby abandoning their claim. There is twofold objection of the defendant. Not giving evidence before the Registrar does not estop the defendant from opposing the trade mark in the Court and second the subsequent event cannot be considered unless the procedure laid down under Order XLI Rule 27 of the Code of Civil Procedure is followed. For that purpose, learned Advocate Shri Agrawal relied upon the observations in case of Orange City Mobile Collection, Nagpur vs City Collection, Nagpur and others (supra) and N.R. Dongre and others vs Whirpool Corporation and another, (1996) 5 SCC 714 . 17. For that purpose, learned Advocate Shri Agrawal relied upon the observations in case of Orange City Mobile Collection, Nagpur vs City Collection, Nagpur and others (supra) and N.R. Dongre and others vs Whirpool Corporation and another, (1996) 5 SCC 714 . 17. This Court in Orange City Mobile Collection, Nagpur vs City Collection, Nagpur and others (supra) refused to consider the subsequent registration of trade mark of the plaintiff for the reason that the provisions of Order XLI Rule 27 of C.P.C. were not followed. This Court has thought it fit to deal with the correctness of the order while dealing with the appeal under Order XLIII of C.P.C. on the basis of available materials. Even in case of N.R. Dongre and others vs Whirpool Corporation and another (supra), Hon'ble Supreme Court refused to consider the additional materials (para 11). 18. It may be proper on my part to leave this issue to be decided by the trial Court because, when I am remanding the matter, it is the trial Court only who can express opinion. This is so because the trial Court has not expressed any opinion on existence of any trade mark. So I am restraining myself to express any comment on subsequent event about registration of this trade mark. 19. Hon'ble Supreme Court in Wander Ltd and another vs Antox India Pvt. Ltd. (supra) was pleased to lay down the principles wherein the appellate Court would justify in interfering with the discretion used by the trial Court. In paragraph 14the tests have been laid down. Arbitrariness in exercise of the power is one of the parameters. I am in complete agreement with learned Advocate Shri Agrawal that the trial Court has arbitrarily granted injunction not to infringe the trade mark of the plaintiff. It was expected from the trial Court to deal with the basic parameters for deciding this relief. There is a reason to believe that the trial Court has not cared to go into the basic and essential parameters. It is expected from the trial Court to understand the law involved and then to apply to the facts. I find the total failure on both the counts. There is neither application of the legal provisions nor consideration of the merits. In such circumstances, the order cannot be sustained in the eyes of law. PASSING OFF ACTION 20. It is expected from the trial Court to understand the law involved and then to apply to the facts. I find the total failure on both the counts. There is neither application of the legal provisions nor consideration of the merits. In such circumstances, the order cannot be sustained in the eyes of law. PASSING OFF ACTION 20. In order to buttress his submission that passing off action is maintainable against a registered proprietor learned Advocate Shri Bhansali relied upon a judgment in case of S. Sayed vs P. Sulochana Bai,2015 AIJELSC 56707. Plaintiff's trade mark was 'TRETTUKADAI HALWA'. Whereas defendant's trade mark as 'TIRUNALVALI TRETTUKADAI HALWA'. The provisions of Section 27 of the Trade Marks Act were interpreted. 21. Here also learned Advocate Shri Bhansali made feeble attempt in convincing me about application of judicial mind by the trial Court. However, learned Advocate Shri Agrawal is having different opinion altogether. With open mind, I have tried to find out which were the issues decided by the trial Court while deciding the grievance about passing off action. Both the learned Advocates relied upon various judgments. It is true that proprietor of a trade mark can initiate action for passing off without registration. Section 134 (1)(c) of the said Act deals with filing of a suit for passing off. The test is laid down therein only. If the trade mark of the defendant is identical or deceptively similar to the plaintiff's trade mark, the action for passing off can be initiated. Whereas if registered trade mark is infringed, suit can be initiated. Section 29 of the said Act provides for infringement of trade mark only when it is registered. If it is unregistered, there cannot be any action for infringement as contemplated under Section 27(1) of the said Act. However, it does not mean that the proprietor of unregistered trade mark cannot take any action. Section 27(2) of the said Act protects the right of action for passing off. This is without prejudice to other provisions of this Act. So the legislatures have made balance in between the rights of unregistered proprietor and registered proprietor of trade mark. When there are such two types of proprietors, it does not mean that registered proprietor will always be favoured. It has been judiciously recognized that registration only recognizes the rights which were already existing. So the legislatures have made balance in between the rights of unregistered proprietor and registered proprietor of trade mark. When there are such two types of proprietors, it does not mean that registered proprietor will always be favoured. It has been judiciously recognized that registration only recognizes the rights which were already existing. If unregistered proprietor is in use prior to the proprietor who has registered his trade mark, such unregistered proprietor is favoured. This has been law laid down in S. Sayed vs P. Sulochana Bai, (supra) and in case of Dhariwal Industries Ltd and another vs M/s M.S.S. Food Products, (2005) AIR SC 1999 . There cannot be dispute about the proposition of law. But the issue is where are the findings of the trial Court on this aspect. 22. There are also parameters when a person can succeed in an action for passing off. It is called as trinity test. The parameters are as follows :- (a) prior user. (b) reputation/goodwill (c) Likelihood of deception. 23. The law has been reiterated in cases of L.D. Malhotra Industries vs M/s Ropi Industries, (1976) 1 ILR(Del) 278 , Laxmikant V. Patel vs Chetanbhat Shah and another, (2002) AIR SC 275 and Heinz Italia and another vs Dabur India Limited, (2007) 6 SCC 1 . When I have perused that part of the order deals with passing off what I find is that the learned trial Judge has only considered three aspects :- - One is prior in use. - Second is admission given by the defendant in reply to seize and desist notice and - Third is objection of acquiescence. PRIOR IN USE 24. Even I find that for arriving at conclusion about the plaintiff being prior in use, the learned Judge has not noted down the material produced before him. There may be documents showing various licenses obtained under concerned laws, sale invoice, purchase invoice, use of the premises and advertisement showing since when a particular person has started with the business. My attention is brought to the documents filed by the plaintiff/respondent from page 261 onward. Some of them are the challans/invoice issued by the plaintiff to third parties. Some of them are also advertisements issued in local newspapers about sale of goods under the trade name 'SHRIPHAL'. My attention is brought to the documents filed by the plaintiff/respondent from page 261 onward. Some of them are the challans/invoice issued by the plaintiff to third parties. Some of them are also advertisements issued in local newspapers about sale of goods under the trade name 'SHRIPHAL'. The plaintiff claims use of this trade mark from the year 1992 whereas, the defendant also claims its use from the year 1992. According to the plaintiff, the defendant has not filed any document to show its use since 1992. My attention is brought to the averments in paras 1 and 2 of the rectification application filed by the defendant (page 643). There the defendant has pleaded use of the trade mark 'SHRIPHAL' since 01-04-2004. For these reasons, it was obligatory on the part of learned trial Judge to substantiate on what basis he has come to the conclusion in favour of the plaintiff. 25. Learned Advocate Shri Bhansali emphasized on use of the phrase 'perusal of the documents' by the trial Court. According to learned Advocate Shri Agrawal, it is not sufficient. I agree with him. 26. It is true that interim injunction application has to be decided at a pre-trial stage and on the basis of pleadings and documents. There is a definite role for the documents. The document supports/corroborates the case put up by the individual litigant. The Court may opine that 'case put up by a party is supported by documents' or the Court may infer that 'case put up by the party is not supported by the documents'. It is true that proof of documents subject to test of cross examination is not expected at an pre-trial stage. But the Court is expected to take a prima facie view. It is expected from the Court to say it how he/she arrives at a conclusion. It is a process. Ultimately injunction is a discretionary relief and said discretion has to be used judiciously. I do not say that each and every document has to be referred but the documents on which the case is founded upon at least need to be referred. This is lacking in the present case. ADMISSION GIVEN IN REPLY 27. It is a process. Ultimately injunction is a discretionary relief and said discretion has to be used judiciously. I do not say that each and every document has to be referred but the documents on which the case is founded upon at least need to be referred. This is lacking in the present case. ADMISSION GIVEN IN REPLY 27. The trial Court has given following findings :- "Further it is seen from the record that the defendant has admitted his guilt in his reply notice issued to the plaintiff and assured that he will not use the identical and similar mark used by the plaintiff." 28. Learned Advocate Shri Agrawal has disputed these factual observations whereas, learned Advocate Shri Bhansali supported these factual observations. My attention is brought to the seize and desist notice dated 03-09-2014. The plaintiff has asked the defendant to seize and desist from using their trade mark 'SHRIPHAL'. My attention is also invited to the reply dated 16-09-2014 (wrongly typed as 2012). It was given by defendant through their attorney to the attorney of the plaintiff. For this issue, I can only say that if the learned trial Judge could have referred the dates of notice and reply it must have been useful. However, I feel that it cannot be said to be a fault. Referring notice and reply may also be sufficient (if there are no more than one notice and reply). I would refrain myself from making any comment on the contents of the notice/ reply and its effect on material issues. The learned trial Judge will deal with the issue of the contents of the reply. ACQUIESCENCE 29. Learned trial Judge observed thus :- "Further the defence of the defendant is that suit is not tenable on the ground of acquiescence. As per the provision of section 33 of the Trade Mark Act, where the proprietor of an earlier trademark has acquiescence for a continuous period of five years in the use of registered trademark, being aware of that use, he shall no longer be entitled on the basis of earlier trademark. As per the provision of section 33 of the Trade Mark Act, where the proprietor of an earlier trademark has acquiescence for a continuous period of five years in the use of registered trademark, being aware of that use, he shall no longer be entitled on the basis of earlier trademark. According to defendant, the present suit is filed on 16.9.2019 after a period of five years and two days from the date of issue of seize and desist notice dated 3.9.2014, therefore, this is a clear case of acquiescence under Section 33 of the Trade Mark Act is made out against the plaintiff. As against it, it is submitted by the plaintiff that there is no delay on the part of plaintiff in instituting the present suit and injunction application. As soon as plaintiff came to know about the illegal activities of the defendant, the plaintiff has instituted the present suit without any delay. The plaintiff has found impugned good with impugned mark SHRIPHAL in open market which is not manufactured by the plaintiff. In this respect the plaintiff has cited so many reliances in which it is held that as regards acquiescence, it cannot be said that the plaintiff is guilty of acquiescence and has disabled itself by not ascertaining its rights. The defendants have not placed any material to show that it has expanded money on advertisement and has built goodwill or its own for the mark. The plaintiff has stated that it came to know of defendant's use of the mark only when it saw the mark in which the application of defendant had been advertised and there is no reason to disbelieve that the assertion of the plaintiff in the absence of any material placed by the defendant to show that it had advertised its products or had done any marketing on such a scale as to warrant and inference that the plaintiff would have been aware of the use of this mark for the defendant's goods. Therefore, I do not find any substance in the submission of defendant in respect of acquiescence." 30. There is a serious dispute in between both the sides about the true effect of the plea of acquiescence. Both have relied upon number of judgments. Therefore, I do not find any substance in the submission of defendant in respect of acquiescence." 30. There is a serious dispute in between both the sides about the true effect of the plea of acquiescence. Both have relied upon number of judgments. Learned Advocate Shri Agrawal relied upon the judgments in case of - (a) Khoday Distillers Ltd (now known as Khoday India Ltd.) vs Scotch Whiskey Association and others, (2008) 10 SCC 723 (para 46) (b) M/s Power Control Appliances and others vs Sumeet Machines Pvt. Ltd, (1994) 2 SCC 448 (para 26). 31. Whereas, learned Advocate Shri Bhansali relied upon the following judgments :- (a) Eaton Corporation and another vs BCH Electric Limited.,2012 55 PTC 417(Del.) (b) BCH Electric Limited vs Eaton Corporation and another., (2016) 67 PTC 341[Del] [DB]. (c) Emcure Pharmaceuticals Ltd vs Corona Remedies vt. Ltd, (2014) 60 PTC 332[Bom.] (Para 20). (d) Lupin Laboratories Ltd vs Jain Products, (1999) 19 PTC 118(Bom.) 32. On factual aspect, both the sides have got different versions. I am inclined to refer them without expressing any opinion. It will have to be done by the trial Court while dealing with this issue. The defendant contends that after issuing seize and desist notice dated 03-09-2014, the plaintiff waited for five years till year 2019 to approach the Court. The plaintiff allowed the defendant to sell their products under the objectionable trade mark 'SHRIPHAL'. It amounts to acquiescence on the part of the plaintiff. According to the defendant, in fact for all these periods they have also sold the goods under the disputed trade mark to the plaintiff. Whereas, the plaintiff has got a different version. The plaintiff relied upon the admission about mistake given in reply to seize and desist notice. It is in paragraph 6. The plaintiff believed it. On one hand, the plaintiff denies the purchase of goods from the defendant under the disputed trade mark and whatever the invoices are filed by the defendant they pertain to a different brand by name MANTHAN (and not 'SHRIPHAL'). On this background, the plaintiff continued to sell the goods to the defendant. 33. My attention is brought to the invoices filed from pages 173 to 179 ranging from 03-09-2014 to 24-04-2015. It deals with the product Manthan Pouch Medium. The goods are sold by 'SHRIPHAL Gruh Udyog. On this background, the plaintiff continued to sell the goods to the defendant. 33. My attention is brought to the invoices filed from pages 173 to 179 ranging from 03-09-2014 to 24-04-2015. It deals with the product Manthan Pouch Medium. The goods are sold by 'SHRIPHAL Gruh Udyog. My attention is also brought to the averments in paragraph 16 of the written statement. It reveals the supply of products of the plaintiff to the defendant ranging from 21-05-2015 to 14-06-2016. My attention is also brought to cause of action pleaded in paragraph 54 of the plaint. The plaintiff's representative found the objectionable trade mark in the Nagpur market on 09-09-2019. On that basis, the plaintiff approached the District Court, Nagpur. 34. On this background, when the findings given by the trial Court are perused one can very well say that they have been arrived at without dealing with the issues raised before him. They cannot be upheld. I disapprove the approach of the learned trial Judge. I could have very well opined about the effect of events referred above. But I should refrain myself, when I am remanding the matter. REPUTATION/GOODWILL AND LIKELIHOOD OF DECEPTION 35. Though these are the tests, I do not find any finding on these issues by the trial Court. My attention is brought to the table showing sales turn over and the table showing 'SHRIPHAL' turn over from the year ranging from 1991-92 up to 2018-19 by learned Advocate Shri Bhansali. The defendant may also have filed such documents. The trial Court has totally failed to consider this parameter altogether. These parameters were totally overlooked by the trial Court. 36. There are arguments on behalf of learned Advocate Shri Agrawal that the word 'SHRIPHAL' is generic word and the plaintiff cannot claim any protection. He also submitted that there is a vast difference in between the trade mark registered by the defendant as 'SHRIPHAL' and the trade mark in existence and under process of the plaintiff. Whereas, according to learned Advocate Shri Bhansali, the approach of the defendant is double standard. He brought to my notice the averments in rectification proceedings initiated by the defendant in respect of registered trade mark of the plaintiff bearing no.1263412. It is in respect of Detergent Powder and Washing Soap. Whereas, according to learned Advocate Shri Bhansali, the approach of the defendant is double standard. He brought to my notice the averments in rectification proceedings initiated by the defendant in respect of registered trade mark of the plaintiff bearing no.1263412. It is in respect of Detergent Powder and Washing Soap. My attention is invited to paragraph 6 and the comparison chart given in paragraph 7 of that rectification application (running pages 644 to 645). The plaintiff contends that "in the said application the defendant has asked for rectification of trade mark already registered in favour of the plaintiff". In that application the defendant has pleaded that both the marks are similar and they are not capable of distinguishing the goods. Learned Advocate Shri Bhansali submitted that here before the Court defendant contends that both the marks are distinct and hence there is no need to grant injunction. 37. He also relied upon judgment in case of Ozone Spa Pvt. Ltd vs Ozone Club, (2010) 42 PTC 469 (Del.) in order to buttress the submission that when the defendant has obtained registration in the name of 'SHRIPHAL', he cannot object his trade mark 'SHRIPHAL', for the reason that it is generic word. 38. He also relied upon a judgment in case of VMS Bathware Private Limited vs Graffiti India Private Limited (Appeal From Order No.226/2018) by High Court of Gujarat at Ahmadabad, on the point of effect of inconsistent stand taken before the registering authorities and taken before the Court. I do agree that there are no findings by the learned trial Judge as to how the trade mark of the plaintiff and that of defendant are deceptively similar and they are likely to cause any confusion in the mind of general public. Without giving such findings he has arrived at a conclusion that is absolutely unjustified. Merely by pointing out the material which are already on record, the lacunae cannot be filled up by the appellate Court. It is not a question of wrong appreciation but, it is a question of failure in appreciation by not considering the material. FINAL CONCLUSION 39. For the above discussion, I have no alternative but to remand the matter. Merely by pointing out the material which are already on record, the lacunae cannot be filled up by the appellate Court. It is not a question of wrong appreciation but, it is a question of failure in appreciation by not considering the material. FINAL CONCLUSION 39. For the above discussion, I have no alternative but to remand the matter. I agree that the remand should not be used in a routine manner but it is a exceptional case wherein in spite of the material produced by both the sides learned trial Judge has failed to consider them and he has jumped to conclusion in favour of the plaintiff. This is not the case wherein the materials have been wrongly appreciated. This is a case of total failure to appreciate the material. This case falls under the parameters laid down in case of Wander Ltd and another vs Antox India Pvt. Ltd (supra). 40. One does not know how much time both parties have taken while arguing before the trial Court. I know how much time they have spent while arguing before me. I am told that both have also argued before earlier Benches. So certain time limit has to be fixed. At the same time, I am inclined to extend the period of temporary injunction. Because at-interim injunction was in force during pendency of interim injunction application before the trial Court. Impugned order came to be passed on 21-09-2019 and since then injunction is in force till today. So in order to maintain the status quo, the period of injunction needs to be extended. When there is a injunction against the defendant, they cannot do the acts which are prohibited. So it will not cause harm to them even if the same situation is continued. The order of remand is passed due to lapse on the part of the trial Judge and for which neither of the parties is to be blamed. At several places I have said that the trial court has arrived at conclusion in favour of the plaintiff without ascertaining the facts. I want to make it clear that I never intended to say that the finding ought not to be in favour of the plaintiff. I have just commented on the approach adopted by the trial court while ariving at particular finding. I want to make it clear that I never intended to say that the finding ought not to be in favour of the plaintiff. I have just commented on the approach adopted by the trial court while ariving at particular finding. After the remand, the trial court is free to take its own decision but only after consideration of necessary materials. 41. So I am inclined to extend the period of injunction for six months. Both the parities are at liberty to amend the pleading on the basis of grounds which are available as per the law. They are at liberty to produce additional material in support of that. I am inclined to opine that if either of the parties seeks adjournment on unjustified grounds the Court is empowered to impose on them exemplary costs of Rs.10,000/-. Hence, I pass the following order :- O R D E R (a) The appeal is partly allowed. (b) The order dated 21-09-2019 passed by the Ad hoc District Jude, Nagpur on Exhibit-5 application filed in Trade Mark Civil Suit No.5/2019 is set aside. (c) The duration of injunction granted by the trial Court as per the order dated 21-09-2019 is extended for a period of six months from today. (d) The matter is remanded back to the trial Court for fresh consideration. (e) Both the parties are directed to appear before the trial Court on 19-10-2020. (f) The plaintiff is granted 30 days time to amend the pleadings, if they want from today and the defendant is given 15 days time thereafter to amend the pleadings thereto, if they want. (g) Both the parties are at liberty to file additional documents, if any, within a total period of two months from today. (h) Trial Court is directed to keep the matter on day to day basis once the period of two months for filing of documents is over. (i) The trial Court is directed to dispose of this matter within four months from 19-10-2020. (j) The trial Court is at liberty to impose exemplary costs of Rs.10,000/- on the parties if they will seek adjournment on unjustified grounds. (k) Both parties to bear their own costs. (l) Appeal is disposed of.