2005 PLP 1235 (CLD)

C.M.A. No.2987 of 2005 under Order VII, rule 11, C.P.C. has been filed by the defendant No.2 with a prayer to reject the plaint as Federation of Pakistan has not been made party in the suit, therefore, the suit is hit by section 79, C.P.C. The plaintiff has not filed any counter-affidavit to the application. I have heard the Advocate for the defendant No.2; plaintiff and his Advocate are absent. On 11-3-2005 the plaintiff filed the suit for Injunction against Corex Enterprises and Collector of Customs (Appraisement) with the following prayer:-- "(A) For permanent injunction restraining the defendant, his servants, agents, distributors, representatives, dealers/shopkeepers and all persons claiming through him, from infringing the plaintiffs Trade Mark Elfy Super Glue Label, from marketing, selling, distributing, offering for sale, advertising or otherwise using on his products Trade Mark Select Super Glue Label and the said label in conjunction with any other Mark or similar Mark and in any colour. (B) For permanent injunction restraining the defendant, his servants, agents, distributors, representatives, distributors, representatives, dealers/shopkeepers and all persons claiming through him from infringing the plaintiffs Trade Mark Elfy Super Glue Label from marketing, selling, distributing, offering for sale, advertising or otherwise using on his products, Trade Mark Select Super Glue Label and the said label in conjunction with any other Mark or similar Mark and in any colour. (C) For an account of all profits made by the defendant by using the infringing mark on his products and for - payment by the defendant to the plaintiff of all such profits. (D) For an order to the defendant to deliver upon oath all labels, packets, cartons, advertising materials, printing blocks, dies, films and other material which bears the infringing Trade Mark. (E) For payment of Rs. 1,00,00,000.00 as damages by both the defendants to the plaintiff. (F) Restrain the defendant No.2, from releasing consignments of the defendant No. 1, bearing the Trade Mark Select Super Glue Label in future. (G) For cost of the suit. (H) And for any such further/better and other relief this Honourable Court deems just and equitable in the circumstances of this case." Under section 79, C.P.C., if a Suit is filed against the Government then the suit should be filed in the name of Federal Government or the Provincial Government, as the case may be. In the present case the plaintiff has not made the Federal Government as party in the suit and simply made the Collector of Customs (Appraisement) as party who is working under the Federal Government. Similar question was considered by the Honourable Supreme Court of Pakistan in the case of Province of Punjab v. Muhammad Hussain PLD 1993 SC 147 and Haji Abdul Aziz v. Government of Balochistan 1999 SCMR

16. In both he cases the Honourable Supreme Court of Pakistan after considering the implication of section 79 of C.P.C. held that the suit without making the Federal Government or Provincial Government as party is not maintainable and is violative of provisions of section 79 of C.P.C. and Article 189 of the Constitution of Islamic Republic of Pakistan, 1973. The said authorities are fully applicable to the present case as such the suit is hit by above provisions of law. Thus the plaint is rejected under Order VII, rule 11, C.P.C.

2. In view of my order passed in C.M.A. No.2987 of 2005 whereby the plaint has been rejected, therefore, this application has become infructuous, hence the same is disposed of. M.B.A./M-225/K Order accordingly.