P L D 1957 (W (PLP)

SHABIR AHMAD, J.‑

Lever Brothers Limited brought a suit against Insaf Soap Factory, Sargodha, under sections 20 and 21 of the Trade Marks Act, 1940, and applied for an interim injunction for restraining the defendants from manufac turing their Soap "New Doctor" and "Everuse", the former of which was stated to be an imitation of the "Lifebuoy" Soap of the plaintiffs and the latter of their "Sunlight" Soap. Mr. M. A. Latif, District Judge, Shahpur at Sargodha, before whom the suit was pending, after hearing the parties, issued a temporary injunction on the 9th of June 1956 with regard to the "New Doctor" Soap of the defendants but none with regard to the "Everuse" Soap. The plaintiffs presented an appeal (F. A. O. No. 63 of 1956) to this Court against the order of the learned District judge with regard to "Everuse" Soap. The defendants did not, in the first instance, question the order of the District judge by an appeal to this Court but put in an application before the District judge himself under Order XXXIX, rule 4, of the Code of Civil Procedure, for having the order of injunction passed on the 9th of June 1156 vacated. That application was dismissed on the 22nd of August 1956 and‑ against the order dated the 22nd of August 1956 the defendants presented an appeal (F. A. O. No. 68 of 1956). F. A. O. No. 63 and F. A. O. No. 68 of 1956, which concern the dispute between the same parties, will be disposed of by this order. I will first take up F. A. O. No. 68 of 1956 with regard to which Sardar Muhammad Iqbal, who appeared for the Lever Brothers Limited, raised a preliminary objection that it was barred by time. He contended that the injunction order was passed by the learned District Judge on the 9th of June 1956 and the appeal presented by the Insaf Soap Factory on the 20th of November 1956 should be dismissed on the short ground that it was not presented within the period prescribed by the Limitation Act for an appeal to this Court. Malik Muhammad Akram, who appeared for the Insaf Soap Factory, conceded that the appeal would be barred by time if it were directed against the order dated the 9th of June 1956, but urged that it was directed against the order of the District judge under Order XXXIX, rule 4 of the Code of Civil Proce dure which was passed on the 22nd of August 1956 and was, therefore, within time. To this contention of the learned counsel for the Insaf Soap Factory, Sardar Muhammad Iqbal replied that though the appeal would be within time if the order appealed against is the one passed on the 22nd of August 1956, but, as the Insaf Soap Factory could only appeal against the order passed on the 9th of June 1956, it cannot evade the provisions of the Limitation Act by purporting to appeal against the order dated the 22nd of August 1956 against which no appeal would lie. Temporary injunctions are dealt with in Order XXXIX of the Code of Civil Procedure. Rule 2 of this order gives the Court power to issue injunction to restrain repetition or conti nuance of breach of contract or other injury of any kind with regard to which the suit is brought. Rule 4 of Order XXXIX empowers the Court to discharge, vary or set aside any order of injunction on an application made thereto by any party. Appeals against the orders of injunctions passed under Order XXXIX are provided for in Order XLIII of the Code of Civil Procedure. Clause (r) of rule 1 of Order XLIII is to the effect that an appeal shall lie from an order passed under rule 1, rule 2. rule 4 or rule 10 of Order XXXIX. Sardar Muhammad Iqbal contended that the appeal against an order under rule 4 of Order XXXIX of the Code of Civil Procedure could be instituted only if the order passed under rule 2 had been discharged, varied or set aside, but if the order passed under rule 4 merely confirmed the previous order of injunction, no appeal could lie and in support of his contention relied on Govinda Ramanuja v Viiiaramaraju (A I R 1929 Mad. 803). The contention of Malik Muhammad Akram, the learned counsel for the Insaf Soap Factory, is based on the wording of Order XLIII, rule 1, clause (r) wherein it is not mentioned that it is only if an order of injunction is discharged, varied or set aside that an appeal is competent under clause (r) of rule 1 of Order XLIII of the Code of Civil Procedure. In support of his contention that the appeal under clause (r) of rule 1 of Order XLIII may be directed against any order, whether of affirmance, variance or reversal of the previous order, Malik Muhammad Akram relied on North‑Western Railway Adminis tration v. North‑Western Railway Union (A I R 1933 Lah. 203). After fully considering the matter, I have arrived at the conclusion that the contention of Sardar Muhammad Iqbal, the learned counsel for Lever Brothers Limited, must be accepted. When an application for a temporary injunction is made the Court will generally hear the defendant before issuing the injunction because rule 3 of Order XXXIX is to the effect that the Court shall give notice of the application to the opposite party but the notice may be dispensed with if the Court is of the opinion that immediate action is called for. If the applica tion for the issue of a temporary injunction is rejected whether without or after hearing the defendant the only remedy open to the plaintiff who had applied for the injunction is an appeal to a higher Court because Order XXXIX, rule 4 of the Code of Civil Procedure by an application under which the injunc tion may be attacked before the Court which issued it clearly applies only to those cases in which an injunction has been issued. In cases where an injunction is issued whether with out or after hearing the party against which it is issued, two remedies are open to the aggrieved party, one, being an application under Order XXXIX, rule 4 of the Code of Civil Procedure and the other an appeal under Order XLIII, rule 1 (r) of that Code. If the application under Order XXXIX, rule 4 of the Code of Civil Procedure by a defendant who was heard before the issue of injunction is dismissed he cannot, if his appeal against the original order is barred by limitation, be allowed to attack the original order by an appeal under B Order XLIII, rule 1 (r) by seeking to appeal against the order of dismissal of his application under Order XXXIX, rule 4 because he would thereby be circumventing the law of limita tion. I have no doubt in my mind that the legislature could not have intended that a party which had not availed of the remedy provided by Order XLIII, rule 1 (r) of the Code of Civil Procedure within the time prescribed by the law of limitation , by appealing against the original order could set the law of limitation at naught by the simple device of putting in a futile application under Order XXXIX, rule 4 and on its dismissal by seeking to appeal against the order of dismissal of that application. The view I take finds some support from the decision in Govinda Ramanuja Das Goswami v. Vijiarama raju and does not offend against any recognised principle of interpretation of statutes because Order XXXIX, rule 4 of the Code of Civil Procedure contemplates a discharge, variation or setting aside of an injunction already issued and the remedy mentioned in Order XLIII, rule 1 (r) of the Code of Civil Procedure cannot be availed of if the application under Order XXXIX, rule 4 has been dismissed. As the facts of the case deal with in North‑Western Railway Administration v. North‑Western Railway Union which was relied upon by Mr. Muhammad Akram were different from those of the present because in that case the injunction was issued without hearing the defendant who put in an application under order XXXIX, rule 4 of the Code of Civil Procedure and on the dismissal of that application presented an appeal under order XLIII, rule 1 (r) of the Code of Civil Procedure, that case need not be critically examined. I would, therefore, hold hat the appeal of Insaf Soap Factory with regard to the "New Doctor" Soap was barred by limitation and as no good ground gas been shown for not presenting that appeal in time, I would dismiss F. A. O. No. 68 of 1956 on the score that it is barred y limitation but would leave the parties to bear their own costs. I will now deal with F. A. O. No. 63 of 1956. The learned District judge passed his order under appeal on the basis of the material placed before him, arid after hearing the learned counsel for the parties and seeing the wrappers of the "Sun light" Soap and the "Everuse" Soap, I am of the view that the order of the learned District judge is not so unjustified as to merit interference at this stage. Consequently I dismiss F. A. O. No. 63 of 1956 also and in that appeal too leave the parties to bear their own costs. I might make it clear that one important reason for my dismissing F. A. O. No. 63 of 1956 is that final orders have yet to be passed by the District judge and anything that I might say about the view that he has taken is likely to prejudice one party or the other. Z.A.S./A.H. Both appeals dismissed.