Order : 1. This Order will dispose of the application (IA No.2/2024) filed by and on behalf of respondent-plaintiff- M/s Hari Industries (Hari Oil Mill), pursuant to the liberty granted by the Hon'ble Supreme Court, praying for variation of the stay order dated 05.10.2016 passed by this Court. 2. Heard respective Senior Counsels, appeared for and on behalf of appellant-defendant & respondent-plaintiff. 3. The present first appeal has been preferred by the defendant, impugning the final judgment & decree dated 12.05.2016 passed by the Additional Distinct Judge No.1, Bharatpur in Civil Suit No.9/2009, whereby and whereunder the suit for permanent injunction filed by respondent-plaintiff under the provisions of Trade Marks Act, 1999, has been decreed and the appellant-defendant has been restrained by the decree of permanent injunction in following terms:- 3. It is undisputed fact on record that the first appeal has been admitted for hearing and during course of hearing of the first appeal, execution & implementation of the final judgment &decree has been stayed vide order dated 05.10.2016. 4. Respondent-plaintiff moved an application dated 25.08.2020, seeking to vacate the stay order dated 05.10.2016, stating inter alia that recently in the year 2020, appellant has started red colour new packaging for its brand of edible mustard oil, just to confuse the customers, who want to purchase the mustard oil made by the respondent-plaintiff. 5. Indisputably, respondent-plaintiff has registered trademark to use trade-name "ENGINE" for his business of manufacturing and selling the mustard oil and this trade-name is allegedly being used by respondent-plaintiff since 1959. The appellant-defendant claims to do the business of selling and manufacturing mustard oil under the different trade name i.e. "Metro ENGINE". It is further an undisputed fact that appellant-defendant is not the registered trade-mark holder for trade-name "Metro ENGINE" nor claims to be prior user of this trade name, rather has taken a plea that the brand name of "Metro ENGINE" and its packaging, are entirely different in all respect, having no match/ similarity with the plaintiff's trade-name "ENGINE". It is further an undisputed fact that appellant-defendant is not the registered trade-mark holder for trade-name "Metro ENGINE" nor claims to be prior user of this trade name, rather has taken a plea that the brand name of "Metro ENGINE" and its packaging, are entirely different in all respect, having no match/ similarity with the plaintiff's trade-name "ENGINE". Moreover, the defence of the appellant-defendant is that the picture of a train engine, reflected in the packaging of plaintiff's product, is a type of steam engine, shown in a circle, whereas in the packaging of defendant's product, it is an electric engine and not a steam engine.Be that as it may, respective case of both the parties on merits, factually as well as legally, is to be re-considered, while hearing and deciding the first appeal on merits. 6. In the application dated 25.08.2020, filed by respondent- plaintiff, for vacation of stay order dated 05.10.2016, it was pleaded inter alia that the appellant has started to use new packaging of mustard oil in red colour theme, which is deceptively similar to plaintiff's packaging of mustard oil, although on such packaging, defendant is using the trade-name "Metro ENGINE" with a picture of electric engine, but such development of using the red colour on packaging, has been done by the defendant, recently in the year 2020 and in that way, appellant has gone a step ahead, in order to imitate the colour scheme of plaintiff as well, just to pass off its goods, hence for such reasons, the stay order dated 05.10.2016 be vacated.That application came to be disposed of by this Court vide order dated 06.07.2023 on the request of respondent-plaintiff allowing for expeditious hearing of the appeal. 7. 7. It appears that thereafter, hearing of first appeal could not take place despite moving application for early hearing by respondent-plaintiff twice, hence respondent-plaintiff preferred one Special Leave Petition (Civil) Diary No. 15756/2024 before the Hon'ble Supreme Court against the stay order dated 05.10.2016 and pleaded subsequent developments made by the defendant in respect of starting to use new packaging for sale of the mustard oil with red colour, just imitating the red colour theme of plaintiff's packaging, whereupon the Hon'ble Supreme Court, vide order dated 26.04.2024, although declined to interfere with the stay order, in view of delay, however, leave it open to petitioner- M/s Hari Industries (respondent-plaintiff herein) to file an application for seeking variation of stay order dated 05.10.2016 passed by this Court, in view of subsequent developments. For ready reference, the order dated 26.04.2024 passed by the Apex Court, reads as under:- "While we are not inclined to interfere with the impugned judgment in view of the delay, we leave it open to the petitionerM/S Hari Industries (Hari Oil Mill) to file an application for variation of the interim order, before the High Court, in view of subsequent facts. In case any such application is filed, the same will be considered and examined on merits, at an early date. We clarify that we have not made any observations on the merits of the case. Recording the aforesaid, the special leave petition is dismissed. Pending application(s), if any, shall stand disposed of." 8. In case any such application is filed, the same will be considered and examined on merits, at an early date. We clarify that we have not made any observations on the merits of the case. Recording the aforesaid, the special leave petition is dismissed. Pending application(s), if any, shall stand disposed of." 8. In furtherance to the liberty granted by the Hon'ble Supreme Court, respondent-plaintiff has again filed an application (IA No.2/2024) on 03.05.2024, pointing out subsequent development, pleaded in Para No.7 of the application, that appellant-defendant had started to imitate the red colour packaging and yellow colour pouch packaging, theme of plaintiff's packaging/ pouches, to sell the product of mustard oil in the trade name of "Metro ENGINE" and such change in using the same colour of packaging to that of plaintiff's packaging, has been done with the sole intention to deceive the customers and with an intent to create an impression/ illusion among the customers that the package of mustard oil, sold by defendant, in-fact originates from the plaintiff's house of manufacturing & packaging of well known mustard oil brand i.e. "ENGINE", because defendant is writing word "Metro" prior to ENGINE in a very small size font, than the font size of word "ENGINE" and picture of engine is also substantially similar. Thus, now with the change of colour theme, new packagings of defendant's brand oil, are deceptively & fully similar to the packagings of plaintiff's brand.Along with the application, a comparative chart, showing colour packaging of mustard oil of plaintiff's brand i.e. "ENGINE" and the new packaging used by defendant in the trade-name i.e."Metro ENGINE" has been enclosed as Ann.4. 9. The application (IA No.2/2024) has been replied by the appellant-defendant and the fact related to subsequent development, narrated by the respondent-plaintiff, in respect of imitating the red colour and yellow colour theme on the packaging of mustard oil by defendant, recently from year 2020, have not been replied/ repelled specifically, and it has only been stated by the defendant that Ann.4, a comparative chart, does not come within the purview of subsequent facts, which is virtually an evasive reply to the subsequent facts, explicitly pleaded by the plaintiff in his application.. It is noteworthy that no reply was filed by the appellant-defendant to the similar subsequent facts, narrated by respondent-plaintiff in his previous application filed on 25.08.2020, and occurrence of such subsequent facts was not refuted. It is noteworthy that no reply was filed by the appellant-defendant to the similar subsequent facts, narrated by respondent-plaintiff in his previous application filed on 25.08.2020, and occurrence of such subsequent facts was not refuted. It is a different thing that the previous application of plaintiff was disposed of as not press, vide order dated 06.07.2023, in view of accepting the prayer for expediting the hearing of the first appeal itself. 10. This Court has gone through the stay order dated 05.10.2016 passed by the Coordinate Bench of this Court as also has taken into consideration the fact that prior to restraint on the defendant by way of passing the decree of permanent injunction dated 12.05.2016, whereagainst the present first appeal has been filed, appellant-defendant had been restrained by way of temporary injunction vide order dated 24.01.2011 passed by the Additional District Judge No.1 Bharatpur on an application for temporary injunction filed by respondent-plaintiff under Order 39 Rules 1 & 2 read with Section 151 CPC and thereby as well, defendant was injuncted by way of temporary injunction from using the registered trade mark "ENGINE" and deceptively similar name and design of the registered trade-name of plaintiff. It is noteworthy fact, which has not been disputed by learned counsel for appellant-defendant that the injunction order dated 24.01.2011 remained operative during course of trial of the civil suit and until passing of the final judgment & decree dated 12.05.2016. This fact was not taken into consideration by the Coordinate Bench of this Court, at the time of passing blanket stay order dated 05.10.2016, staying the execution & implementation of the final judgment & decree dated 12.05.2016. 11. This Court finds that after staying the execution and implementation of the judgment & decree dated 12.05.2016, respondent-plaintiff has raised a point that appellant-defendant has started to misuse the interim stay order passed by this Court in his favour during course of appeal, and in the year 2020, defendant has also started to imitate the red and yellow colour theme of packaging of mustard oil, deceptively & fully similar to the packaging of plaintiff's mustard oil, apparently with an intention to deceive the customers from differentiating the two packagings of mustard oil. One sold by the respondent-plaintiff using "ENGINE" brand and another manufactured and sold by defendant using "Metro Engine" brand. 12. One sold by the respondent-plaintiff using "ENGINE" brand and another manufactured and sold by defendant using "Metro Engine" brand. 12. This Court finds that the allegation of imitating and preparing new packaging of mustard oil by the defendant by using red and yellow colour theme, which is apparently similar to the colour scheme, being used by the plaintiff in the packaging of its product, is a subsequent fact pleaded by the plaintiff explicitly in his application and these subsequent facts have not been refuted by the defendant specifically. 13. Having perused the comparative chart, showing the colour packaging of plaintiff's brand i.e. "ENGINE" as also defendant's brand i.e. "Metro ENGINE", the manner in which the word "Metro" has been used in small font size and although instead of a steam engine, an electric engine has been shown in circle on the face of packaging, yet both packagings through naked eyes, appear to be deceptively similar and it prima facie appears that change of colour theme by defendant, is a major change in the packaging of mustard oil of "Metro ENGINE". Due to change of colour theme, the packaging of defendant's product in a prima facie look, appears to be deceptively similar to that of the packaging of plaintiff's product. 14. It is not the case of appellant-defendant that the red & yellow colour theme in the packaging of mustard oil, was being used by defendant prior to 2020. The similarity of colour theme in packagings/ pouches of defendant was not in issue between parties before the trial Court and parties were not at loggerhead on this issue during course of trial of suit, nor in the impugned judgment & decree dated 12.05.2016, there is any discussion or finding in this respect. This subsequent fact has obviously been developed and occurred during course of appeal and it appears, apparently that change of colour theme on packaging of mustard oil by the defendant has been done in utter misuse of the stay order dated 05.10.2016 passed by this Court in his favour. 15. This subsequent fact has obviously been developed and occurred during course of appeal and it appears, apparently that change of colour theme on packaging of mustard oil by the defendant has been done in utter misuse of the stay order dated 05.10.2016 passed by this Court in his favour. 15. Therefore, for the aforesaid reasons, this Court is prima facie convinced with the occurrence of the subsequent facts, referred hereinabove, at the behest of appellant-defendant, which obviously would cause serious prejudice to respondent-plaintiff and further, action of appellant-defendant in changing the colour theme on the packaging of its product, seems to be done in misuse of the blanket stay order dated 05.10.2016 passed in his favour, hence the stay order warrants variation by this Court to maintain balance of interest of both parties, during course of hearing of appeal & until its final decision. 16. Accordingly, the application (IA No.2/2024) is hereby disposed of, by varying stay order dated 05.10.2016 in following terms: (i). The stay order dated 05.10.2016, staying the execution & implementation of judgment and decree dated 12.05.2016, shall remain continue to operate, but to the limited extent of staying the decree, restraining the appellant-defendant from using the deceptively similar trade- mark of "ENGINE" mustard oil, which is registered brand and trade-name of respondent-plaintiff, it means the resplendent-plaintiff would be at liberty to use trade-name "Metro ENGINE" to manufacture and sell the mustard oil.But; (ii). Until decision of the present first appeal, appellant- defendant shall not use red, yellow and other similar colour themes, on the packaging/ pouches of its brand of mustard oil i.e. "Metro ENGINE", which colours are being used by the respondent-plaintiff in packaging/ pouches of mustard oil of its brand i.e. "ENGINE". Thus, the stay order dated 05.10.2016 stands modified/varied in the above stated terms. 17. Before parting with, it is made clear that the aforesaid modification/ variation in the stay order dated 05.10.2016, shall not affect the case of either of the parties on merits and the present first appeal shall be considered and decided on its own merits, without being influenced by the variation of the stay order dated 05.10.2016, as made hereinabove. 18. Let the first appeal be listed for final hearing after four weeks.