D.K.Jain, J.

1. This order will dispose of I.A. No. 6563/94 and I.A.No. 8323/94.

2. In a suit for perpetual injunction against the defendant restraining passing off the trade mark of the plaintiff and rendition of account, the plaintiff, engaged in the manufacture and sale of edible oils, has filed an application (I.A: No. 6563/ 94) under Order 39 Rules 1 and 2 read with Section 151, CPC seeking temporary injunction, restraining the defendant, its agents, dealers and all others acting for and on its behalf from manufacturing, selling, offering for sale, advertising, directly or indirectly and dealing in edible oils under the trade mark Jiwan Dhara or any other trade mark identical with or deceptively similar to the plaintiffs said trade mark till the disposal of the suit.

3: I.A. No. 832/94 has been filed by the defendant under the aforenoted provisions of law seeking a similar temporary injunction against the plaintiff.

4. Briefly stated, the case of the plaintiff is that it is engaged in the business of manufacture and marketing of edible oils and adopted the trade mark Jiwan Dhara label since 1 October, 1993; has been continuously using the same since then; it is the adoptor of the said trade mark; it has established extensive business in major parts of the country; its sales under the said trade mark since its adoption till the date of filing of the suit were to the tune of Rs. 48 lacs; it has spent substantial amount on the publicity of the said trade mark and as a result thereof it enjoys good reputation in the market; its trade mark has become sufficiently distinctive in the trade.

5. The plaintiff alleges that the defendant has adopted a similar trade mark Jiwan Dhara only in the second week of June, l994 with a view to trade upon the reputation of the plaintiff to earn undue profits to which it is not entitled user of the similar trade mark by the defendant is bound to cause confusion, and /or deception amongst the purchasing public and trade leading to passing off the goods and business of defendant as the goods and business of the plaintiff, particularly when the goods, trade channels and purchasers of the plaintiff as well as of the defendant are the same.

6. The suit as well as plaintiffs application is resisted by the defendant and the plaintiffs assertion of being the originator and the prior user of the trade mark Jiwan Dhara is not only emphatically denied by the defendant but it has also filed counter claim to restrain the plaintiff, etc., from using the impugned trade mark, along with their application i.e., 8323/94 for interim relief to the same effect.

7. The stand of the defendant in its written statement and counter claim is that the defendant adopted the trade mark Jiwan Dhara on 1st April, 1993; an application for registration of the said trade mark was filed on 19 July, 1993; the defendant started selling edible oils under the said trade mark in the end of October, 1993; the plaintiff came in the market subsequently with the impugned trade mark in order to trade upon the established goodwill and reputation of the defendant; its sales from 30 October, 1993 to 29 July, 1994 were over Rs. 5 crores out of which the sales of edible oil under the trade mark Jiwan Dhara were approximately Rs. 85 lacs. It is asserted that on gaining knowledge about the plaintiffs user ofits trade mark, the defendant sent a legal notice to the plaintiff on 12 March, 1994 urging it to desist from using the said trade mark to which the plaintiff sent a vague and evasive reply on 25 March, 1994, without disclosing since when it was using the trade mark Jiwan Dhara.

8. I have heard Mr. S.K. Bansal, learned Counsel for the plaintiff and Mr. M.L. Mangla, learned Counsel for the defendant, who have taken me through the documents filed in support oftheir respective cases.

9. It is well-settled principle of law relating to an action for passing off that in order to succeed in getting an interim injunction the plaintiff has to establish the user of the impugned trade mark prior in point of time than the impugned user by the defendant. The registration of the mark or a similar mark prior in point of time to user by the plaintiff is irrelevant and the mere presence of the mark in the register maintained by the trade mark registry does not prove its user by the person(s) in whose name(s) the mark was registered and it was irrelevant for the purpose of deciding the application for interim injunction. In the other word the priority in adoption and user of a trade mark is superior to prioritv in registration (see Cenhury Traders v. Roshan Lal Duggar and Company,15 (1979) DLT 269 [LQ/DelHC/1977/59] =AIR 1978 Delhi 250 andN.R. Dongre v.Whirlpool Corporation,AIR 1995 Delhi 300,affirmed by the Supreme Court in 1996 (5) SCC 714 [LQ/SC/1996/1396] ).

10. In the present case, in view of the admitted position that both the parties, dealing in the same goods, are using the same trade mark, having common trade channels and common consumers, the area of controversy is very narrow being restricted, to the question as to which of the two parties is a prior adoptor and user of trade mark Jiwan Dhara.

11. Mr. S.K. Bansal, learned Counsel for the plaintiff, in support of his claim that the plaintiff, having adopted the said trade mark since 1 October, 1993, is a prior user of the said trade mark, has invited the attention of the court to the application for registration of the said trade mark and various invoices, which show that though in the registration application the user has been claiment from 1 October, 1993 but the plaintiff has been using the impugned trade mark at least from 26 January, 1994. Challenging the stand of the defendant that it had adopted and started using the said trade mark in the end of October l993, learned Counsel has drawn my attention to carbon copies of the invoices filed by the defendant. He has contended that some of the invoices are fabricated for the purpose of the present case and in fact the plaintiff has been able to procure one of the original invoices dated 26 November, 1993, which shows that the mustard oil supplied under the said invoice was with trade mark Paawan Dhara whereas the carbon copyproduced by the plaintiff bears the trade mark Jiwan Dhara, His submission is that the documents as relied upon by the defendant to establish its user prior to that ofthe plaintiff, are of dubious and doubtful nature and cannot be relied upon. He points out that the plaintiff has in fact moved an application under Section 340, Cr.P.C. forinitiating criminal action against the defendant, in relation to the said invoices. His submission is that if these invoices are ignored the case ofthe plaintiffs user prior in time stands established.

12. On the other hand, Mr. Mangla, learned Counsel for the defendant, countering the allegation of the plaintiffs Counsel that the invoices produced by the defendant are unreliable being fabricated, has attempted to explain the alleged discrepancy in invoice dated 26 November, 1993. He asserts that even if this invoice is ignored for the time being there are other invoices which show that the, defendant had marketed its product under the impugned trade mark in September, 1993 and December, 1993 i.e., prior to plaintiffs user in January, 1994. Learned Counsel has also contended that the present suit was filed by the plaintiff only after the defendant had issued a legal notice to it, pre-empting initiation of legal action by the defendant against it.

13. Having given my thoughtful consideration to the rival contentions and the material placed on record by both the parties, I feel that, prima facie, the plaintiff has been able to establish user of the trade mark Jiwan Dhara prior in time than its user by the defendant. Though at this stage it may not be appropriate to give any finding on the issue whether some of the invoices furnished by the defendant are fabricated or not because it would be a matter to be considered and decided after trial but a bare look at the copies of the invoices dated 30 September, 1993, 26 November, 1993 and 8 December, 1993 tends to indicate that the words Jiwan Dhara have been inserted in the said copies subsequently. I say no more lest it may prejudice the defendants main case but I am constrained to observe that when a party itself seeks a relief in equity, it must unequivocally demonstrate that its hands are absolutely clean, which, prima facie,does not seem to be the case here. It is also pertinent to note that though in the copies of some other invoices, dated 4 May, 1994 and thereafter the goods sold are shown to be of trade mark, Jiwan Dhara written in hand but the trade mark Paawan Dhara which was being used by the defendant earlier, when it had commenced its business has been printed on the invoices itself. These invoices, all dated after the plaintiff had sent its reply to the defendants legal notice, not only appear to have been prepared as self-serving evidence but also appear to show that the defendant itself attached more importance to its original trade mark Paawan Dhara. On the other hand copies ofthe invoices placed of record by the plaintiff bear the trade mark Jiwan Dhara and show its user at least from 26 January, 1994 i.e., prior in point of time than its user by the defendant from 4 May, 1994. Nothing turns on the argument of learned Counsel for the defendant that the present suit has been filed by the plaintiff after issue of legal notice by the defendant to foreclose the issue in its favour. The notice issued by the defendant seems to be as vague as plaintiffs reply to it. Having arrived at the conclusion that the plaintiffs user by the impugned trade mark is prior in time than its user by the defendant it must necessarily follow that the defendant cannot be permitted to use the same trade mark jointly with the plaintiff because, as observed by the Supreme Court in Power Control Appliances & Ors. v. Sumeet Machines Private Ltd,l994 (2) SCC 448, there can be only one mark, one source and one proprietor. It cannot have two origins.

14. For all these reasons, in my view, the plaintiff has made out a prima fecie case for grant of ad-interint injunction in its favour. The balance of convenience is also in its favour. As regards the question of irreparable injury to the plaintiff, if the defendant is not restrained from using the impugned trade mark, the product, being traded by both the parties, being same, there is every possibility of difference in standard and quality of the goods which would not only cause confusion in the minds of purchasing public but may also affect the reputation of the plaintiff. On the other hand, no injury is likely to be caused to the defendant on account of restraint order because on its own showing major portion of its sales has been under the trade mark "Paawan Dhara" which it had adopted at the time of commencement of its business.

15. Consequently, I restrain the defendant, its agents or any one else acting on its behalf from manufacturing, selling or offering for sale, directly or indirectly, edible oils with mark Jiwan Dhara or any other mark which may be deceptively similar to the said mark till the final disposal of the suit.

16. However, having regard to the fact that the claimed user of the impugned trade mark by both the parties is in very close proximity in time, I would direct the plaintiff to maintain a proper account of its sales under the trade mark Jiwan Dhara and submit the same in the Court bi-yearly till the disposal of the suit.

17. It is made clear that whatever has been observed hereinabove will have absolutely no bearing in the trial of the suit and the counter claim.

18. In the result plaintiffs I.A. No. 6563/94 is allowed and I.A. No. 8323/94 filed by the defendant is dismissed.