' This First Appeal is directed against the order, dated 6th May, 1982 of the learned Additional District Judge, Sargodha whereby he granted application under Order XXXIX, rules 1 and 2, C. P. C. Read with section 151, C. P. C. And issued order of stay pending decision of the suit for perpetual injunction restraining the appellant/defendant from manufacturing and selling wheat thrashers under the same seal and design of "Ittefaque Shaheen" in violation of Registered Trade Mark of the plaintiff, namely, "Ittefaque Wheat Thrashers" and "Shaheen Wheat Thrashers".
2. Learned counsel for the appellant contended that the appellant had been manufacturing wheat thrashers under the name, seal and design of "Ittefaque Shaheen." since 1960. He had applied for the registration of the trade mark since April, 1Q81 which application is still pending with the Registrar of Trade Marks, Pakistan. It was contended that the issue of stay order by the learned trial Court is contrary to the law laid down in National Electric Fan Manufacturers (Regd.) Guirat v. S. Muhammad Din & Sons Ltd. (1). It was stated that balance of convenience was also in favour of the appellant because the issue of injunction would deprive him of the source of his livelih000d.
3. Learned counsel for the respondents supported the impugned order passed by the learned Additional District Judge, Sargodha. It was argued that there is no evidence on the record to show that the appellant had been bona fide using the trade mark prior to the institution of the suit by the respondents. The learned trial Court rightly granted injunction against the appellant because the respondent would suffer irreparable loss by the appellants' manufacturing wheat thrashers in design, identical to those manufactured by them. It was also submitted that the appellant wants to thrive on the good-will earned by the respondents as a result of hard labour and substantial investment made in the profession.
4. I have considered the contentions raised by learned counsel for the parties and have gone through the record. The appellant so far failed to bring on the record any document to show that he had been manufacturing and selling wheat thrashers in the name, seal and design of "Ittefaque Shaheen" prior to the institution of the suit by the respondents. The case cited by the learned counsel for the appellant is, therefore, distinguishable. The trade marks already registered in favour of the respondents are not denied by the appellant. The mere pendency of application for registration before the Registrar of Trade Marks will not prove that appellant had been manufacturing and selling the wheat thrashers under the name, seal and design of "Ittefaque Shaheen" since 1965 as alleged in the written statement.
5. In this view of the matter the discretion exercised by the learned Additional District Judge, Sargodha in grant of injunction in favour of the respondents is not liable to interference. However, it is observed that if the appellant brings on the record some reasonable evidence to establish concurrent user of the trade marks the learned trial Judge may, on the application of the appellant, re-consider the question of grant or refusal of injunction on merits otherwise he shall dispose of the suit expeditiously.
6. Subject to the observation made above this appeal is dismissed with no order as to costs.
(1) 1980 SC MR 97