1991 PLP 164 (MLD)

Sardar Tahir Mehmood petitioner filed suit for- permanent injunction against Ikramul Haq respondent restraining. him from using, marketing' or publishing `Darsi-Model Test Papers', before the learned. District Judge, Lahore which was entrusted to the learned Additional District Judge, Lahore. Alongwith the suit he filed application for temporary injunction for restraining the respondent from using, marketing or publishing `Darsi Model Test Papers'. The application was dismissed by the learned Additional District Judge on 1-9-1990, hence this appeal.

2. Learned counsel for the appellant submitted that- the trial Court has failed to consider the application for grant/refusal of temporary injunction in accordance with the guiding principles laid down by the superior Courts; that the trial Court has unnecessarily discussed the merits of the case; that the trial Court has failed to appreciate correctly the provision of section 20(2) of Trade Marks Act, 1940 and that the appellant/plaintiff was publishing `Darsi Model Test Papers' for the last more than 20 years without any interruption and the respondent/defendant was "passing off" his goods as that of the appellant.

3. I have considered the submissions made by the learned counsel with care. I have not been able to persuade myself to agree with him. I find that the trial Court has applied its conscious mind to the relevant provision of law and has come to the conclusion that the plaintiff/appellant has failed to make out a prima facie case and that balance of convenience was not in his favour and he was also not likely to suffer an irreparable loss. The trial Court has given sound reasons in support of the conclusions arrived at by it. On my independent assessment, I do not see any reason to disagree with- the findings of the trial Court. In his order, the learned trial Court has observed:-- "I find that Darsi Model Test Papers are being issued by so many other publishers. 'A list of themes given in the written statement. None of those publishers including the contesting parties are registered owners of trade mark. Prima facie I have to see if defendant sold the Test Papers as test papers belonging to plaintiff. Defendant did not admit that prior to the publication of plaintiff there was too publication in the market with the title assigned by plaintiff to his publication. I have compared different test papers published by different publishers, I hold the view that Test papers with the disputed title are already in the market in addition to the test papers published by plaintiff." The learned counsel has not been able to controvert the aforesaid observations made by the trial Court. I find that the trial Court has exercised its' discretion properly and has considered the question of grant/refusal of temporary injunction in accordance with the guiding principles laid down by the superior Courts. Pursuant to the above discussion, the appeal fails and is dismissed in limine. A.A./T-110/L Appeal dismissed.