1984 PLP 395 (MLD)

"...They are, therefore, restrained to use the name and style of Rofa on their manufactured soap and on their advertisement chits till disposal of the suit. Respondents are however allowed to dispose of the soap already manufactured." Bashir Ahmad alone has filed this first appeal against the stay order. The appeal was admitted on 22-11-1983. In the civil miscellaneous alongwith the appeal notice was issued for 3-12-1983. On 3rd December I directed both the learned counsel to come prepared to argue the appeal. Arguments were heard on 12-12-1983 on which date learned counsel for the parties were directed to file written arguments. Only the respondents have filed written arguments. Learned counsel for the appellant did not think it necessary to file the written arguments but gave a list of books he relied upon. The first point urged by the learned counsel for the appellant was that the suit was not competent. In support of this he relied on Order XXX, rule 1, C.P.C. Another objection alongwith this was that the plaintiffs/ respondents were not a registered firm nor were they proprietor of the registered trade mark. It was next contended that the appellant was not given a copy of the stay application to which he was entitled to, under the law, before the interim injunction could be issued. Learned counsel further submitted that the decision on the stay application actually amounts to the disposal of the main suit. Last of all it was contended that the similarity of the trade marks was not the real test. It was only with regard to this very contention that the learned counsel cited number of decisions. I am referring those only which in my view are important. Two are the decisions given by the Supreme Court of Pakistan in the cases of Pakistan Soap Factory v. Chittagong Soap Factory and another P L D 1970 S C 460 and Abdul Wahid v. Hap Abdur Rahim and another PLD 1973 S C 104 and another was a Karachi decision Aspro-Nicholas Ltd. v. Registrar of Trade Marks and Syed Nisar Hussain Shahani trading as N.H. Shahani & Co. P L D 1973 Note 60 at p.

82. On behalf of the respondents, learned counsel raised a preliminary objection. This was that the appeal was not competent as it had not been filed by the other defendants before the trial Court. In support of this learned counsel relied on Allah Dad and others v. Nawab and others P L D 1960 (W. P) Lah. 277 and Shah Muhammad and others v. Muhammad Bakhsh P L D 1972 S C

321. On merit, learned counsel argued that the impugned order was passed after due notice to the appellant. This was the basic requirement of Order XXXIX, rules 1, 2 and 3, C.P.C. Learned counsel submitted that the respondents /plaintiffs having made out a prima facie case and having fulfilled the other essential ingredients of interim injunction, the learned Additional District Judge acted in accordance with law in passing the impugned order. In the written arguments filed by the respondents, number of other decisions have been referred to but I. need not mention all those. I don't think the appeal is to be dismissed on the preliminary objection. With the exception of Bashir Ahmad the other defendants are not aggrieved by the impugned order. Therefore, it was not necessary for them to join the appellant. However, on merit this appeal has no substance. The mere fact that the appellant was not given copy of the stay application is no ground to set aside the impugned order because, otherwise, the order is in accordance with law. It was passed after due notice to the appellant. Similarly, I don't agree with the learned counsel that the trial Judge while deciding the stay application has impliedly decided the main suit. All the material questions are yet to be determined. Those shall be decided after the parties have led evidence. I am not inclined at this stage to make any observation with regard to the similarity test because this matter alongwith the other objections raised before me by the learned counsel for the appellant shall have to be decided by the trial Court at the proper time. This appeal is accordingly dismissed with no order as to costs. As the plaintiffs have been granted interim injunction, I think it will be in the interest of justice if the suit is decided as early as possible. I, therefore, order that the suit shall be decided within three months from the date of this judgment, under intimation to the Registrar of this Court. M. A. K. Appeal dismissed.