2018 PLP 1 (CLD)

MUHAMMAD FARRUKH IRFAN KHAN, J.

Through this Regular First Appeal filed under section 96 of the C.P.C. the Appellant M/s. Hilal Confectionary (Pvt.) Ltd. has assailed the judgment and decree dated 6.12.2005 of the learned Additional District Judge, Lahore whereby its suit for permanent injunction filed against the respondents Messrs Naveed Enterprises and one Shakeel General Store has been dismissed.

2. The brief facts out of which this appeal has arisen are that the Appellant filed a suit for permanent injunction restraining the Defendants/Respondents from infringement of its Trade Mark Hilal Khopra Candy (Ex.P.6). It was asserted by the Appellant-company that it has been manufacturing and marketing sweets and candies bearing the said trade mark along with its label/wrapper in a particular colour scheme and design for the last many years. It was also asserted that due to good quality, the sweets and candies of the Appellant under this specific trade mark and label/wrapper have acquired great reputation and goodwill throughout the country. It was also asserted that the said trademark along with its colour scheme and design was pending registration in class 30 under application No.147128; that the copyrights in the said packaging of Hilal Khopra Candy Sweets is duly protected under the Trade Mark and Copy Rights Laws. Along with the suit the appellant attached certificate regarding pendency of trademark registration application in class

30. The appellant pleaded that by adopting a trademark Naveed Khopra Candy Sweets with identical packaging/label/wrapper, the respondents are not only infringing the appellant's trademark rights but also passing off their goods as the goods of the appellant and are thus continuously deceiving the appellant's customers besides causing financial loss to it.

3. The respondents defended the suit by filing their written statement and pleaded that the appellant has merely filed a copy of the application for registration of the trademark which does not confer any exclusive right or cause of action in favour of the appellant; that it was at the most a suit for passing off which was to be filed before the Court of competent jurisdiction i.e. Civil Court and that the Court of District Judge had no jurisdiction to entertain the instant suit and adjudicate upon it. They also asserted that the appellant lacked knowledge as to the exact period since when they were using the said trademark as they pleaded in the plaint that they had been using the said trade mark for the last "many years". They refuted the plea of the appellant that Naveed Khopra Candy or its wrapper/label was similar or identical to Hilal Khopra Candy and its wrapper/label and submitted that as no exclusive right is vested in the appellant it cannot seek restraint against use of a label/wrapper having different colour scheme and design by the respondents as their trademark was Naveed Khopra Candy. It was alleged that the appellant had no cause of action.

4. Out of the divergent pleadings of the parties the learned Additional District Judge, Lahore framed the following issues: ISSUES:

1. Whether the plaintiff is the prior user of the distinctive Packaging, colour scheme, design and getup of the disputed Trademark Hilal Khopra Candy Sweets and have reputation and goodwill therein? OPP

2. Whether the trademark of the defendant Naveed Khopra Candy Sweets and its packaging, colour scheme design and getup is deceptively and confusingly similar or near resembles the distinctive Trademark of the plaintiff products and is likely to cause confusion and deception to the unwary purchasers? OPP

3. Whether the defendant is likely to pass off its goods as those of the plaintiffs by virtue of its use of the disputed trademark and its colour scheme design and getup? OPP

4. Whether the plaintiff has no locus standi and cause of action and has come to the Court with unclean hands? OPD

5. Whether the defendant is entitled to recover special costs under section 35-A of C.P.C.? OPD

6. Relief. Evidence was led by both sides and arguments were advanced by the learned counsel. Issues Nos.1 to 3 were decided against the appellant on the basis of which suit was dismissed with no orders as to the costs. Hence, this RFA.

5. Arguments heard. Record perused.

6. It is to be noted that Ex.P-6 of appellant shows that the product packaging comprises of dark blue label in which the dark blue shade becomes lighter going right side. Word Hilal is written in yellow on the left upper corner. On the right upper corner protruding towards the center of the label are khopra (coconut) tree leaves in green. The word KHOPRA is written in white in a stylized manner slightly above the center beneath which word "Candy" is written in red and a star device on left. A half cut coconut is depicted on the lower right side. Thus the label/wrapper has an overall dark blue, white, green and red colour scheme, design and getup. On the other hand Ex P-7 of respondent also comprises of a dark blue colour in which the blue shade becomes lighter moving upwards. The word "Excel" is written on right upper side and the coconut green leaves are depicted in the bottom part upon which a half cut coconut fruit is placed. In the centre, the word "KHOPRA" is written in gold colour just above the middle where light and dark blue colours are blending beneath which on the right side word "Candies" is written in yellow. The word KHOPRA is written in a similar style as written in appellant's label/wrapper and just above the word KHOPRA the word Naveed is written in yellow within a red oval shape circle with two parallel separated yellow outlines. Thus the label/wrapper of the respondent also has a dark blue, light blue, white, green and red colour scheme, design and getup, with few points of difference here and there, as compared to that of appellant's label/wrapper described above. Wrappers of both the parties i.e. Ex.P.6 and Ex.P.7 are scanned here as under:-

7. In the first place this Court has observed that Issues Nos. 1 and 2 were not linked with each other and had a different scope, thus it was inappropriate for the learned Trial Court to decide the two independent issues together. They are taken one by one. Issue No. 1: Issue No. 1 required the learned trial Judge to decide whether the appellant was the prior user of the packaging, colour scheme, design and getup of the Trademark HILAL KHOPRA CANDY SWEETS and thereby gained reputation and goodwill, the onus probandi was upon the appellant. The impugned judgment does not show that any conclusive finding has been recorded by the Trial Court as to whether or not the appellant was the prior user thereof. So, I will deal with this issue first. The record shows that at the time of filing of the suit in the year 2000 though it was mentioned in the plaint that the appellant/plaintiff had been using HILAL KHOPRA CANDY SWEEETS along with its colour scheme, design and getup a few years before the filing of the Plaint, but during the course of evidence PW1 specifically deposed that appellant/plaintiff has been using the trademark HILAL KHOPRA CANDY with the wrapper/label Ex-P-6 since 1993. Another witness, PW2, also deposed that the appellant/plaintiff was manufacturing HILAL KHOPRA CANDY in their label/wrapper since 1993. The record further shows that PW-1 produced certificates of transmissions of PTV from 30th October, 1989 to 5th December, 2000 which reflect the commercials of HILAL KHOPRA CANDY SWEETS aired on television. Copies of sales tax invoices are marked C1 to C

39. Advertisement copies from Akbar-e-Jahan have also been produced in evidence. There is no evidence in rebuttal by the defendants to prove that they were the prior user of their own wrapper/label, Ex-P-7. The learned Trial Court has failed to discuss the above mentioned documents and evidence produced by appellant in the impugned judgment and has not taken them into consideration in arriving at the conclusion. The point in issue could be proved by producing independent documents to show that a particular trademark or label has been used from a particular date. This clearly has been done on behalf of the appellant/plaintiff by producing the above mentioned documents and through statements of PW-1 and PW-2, whereas no independent documents were produced by the defendants/respondents to prove that they were using the disputed label/wrapper prior in point of time than the use of the label/wrapper (Ex.P.6) by the appellant/plaintiff. Therefore, it stands proved on record that the appellant is the prior user of the distinctive packaging, colour scheme, design and getup of the HILAL KHOPRA CANDY SWEETS (Ex.P-6) and has acquired reputation and goodwill therein. Therefore, the findings of the learned Trial Judge on Issue No.1 against the appellant/plaintiff is reversed and Issue No.1 is decided in favour of the appellant/plaintiff and against the respondents/defendants. Issue No. 2: Issue No. 2 is the main question to be decided between the parties. It clearly appears from the contents of the plaint and rightly formulated in issue No.2 that the claim of the appellant/plaintiff was against the use of NAVEED KHOPRA CANDY as well as its packaging, colour scheme, design and getup (Ex-P-7) of the Respondent/defendant and the Trial Court was required to decide whether the trademark of the defendant NAVEED KHOPRA CANDY SWEETS and its packaging, colour scheme, design and getup is deceptively and confusingly similar and nearly resembles the distinctive trademark of the plaintiff's products and is likely to cause confusion and deception to the unwary purchasers. The impugned judgment shows that one of the witnesses P.W.1 on behalf of appellant/plaintiff deposed that "Defendants were selling NAVEED KHOPRA CANDY SWEETS in a wrapper which is almost similar to that of the Plaintiff and they are deceiving the ordinary customers". PW2 on behalf of appellant/plaintiff deposed, defendants have copied their colour scheme and design. It is therefore, clear that the emphasis of the claim of the appellant/plaintiff was on the use of a similar wrapper/label/colour scheme and design by the Respondent/ defendant. Witnesses of the respondent/defendant deposed, as mentioned in the impugned Judgment, that "there was no resemblance in the wrapper Ex-P-6 and Ex-P-7" and another witness DW2, dealer of respondent/defendant, deposed that "wrapper of defendant was not identical to the wrapper of Hilal Khopra and Hilal Khopra is being sold in blue colour whereas the wrapper of the defendant's company is in light blue colour.....". The said witness further deposed that about 30/35 companies were manufacturing Khopra candy in blue colour wrapper. Based on the above the learned Trial Court observed and held as follows: "Moreover it is also evident from the plaintiff's wrapper, Ex-P6 and defendant's wrapper, Ex-P7, that the plaintiff's wrapper is in light blue, whereas wrapper of the defendant is dark blue. Moreover, there appears light green colour on wrapper of the plaintiff, whereas there appears dark green colour on the wrapper of the defendant. As such there is slight difference between the two wrappers. It is evident from the registration certificate dated 20th November 2004 of the plaintiff Ex-P11 that it has been expressly got written on the bottom of this certificate that it has no exclusive right in respect of Khopra Candy, so when the registration of the plaintiff's firm provides that registration is not in respect of Khopra Candy, so how the plaintiff can claim that the defendant's company is passing off its goods in wrapper, the similar to the wrapper of the plaintiff's company, because it is admitted between the parties from Ex-P7 that it stands in the name of Hilal Khopra, whereas defendant's wrapper Ex-P6 stands in the name of Naveed Excel "Khopra Candy", then how it can be concluded that these trademarks are identical. Moreover, it has come in the evidence of the defendant that Khopra is being sold by 30/35 companies in blue colour, as such it is concluded that even if plaintiff is prior user, even then it would not give right to the plaintiff to claim exclusive right in respect of Khopra Candy, hence it is concluded that the plaintiff was unable to prove issues, so both the issues are decided in favour of the defendant and against the plaintiff."

8. From the above quoted part of the impugned judgment it is apparent that the learned Trial Court proceeded on a wrong premise to opine that there is "slight difference between the two wrappers". The other aspect is that registration certificate dated 20th November, 2004 of the plaintiff, Ex.P-11 has not been taken into consideration in its true perspective. Only the disclaimer appearing on the registration certificate that appellant/plaintiff has no exclusive right in respect of KHOPRA CANDY has been noted. As stated above, the appellant/plaintiff's emphasis was on similarity of the wrappers/labels Ex-P-6 and Ex-P-7. Yet another aspect of the impugned judgment is that the learned Trial Court has observed that in the presence of disclaimer on KHOPRA CANDY mentioned in the registration certificate the Appellant/plaintiff can not claim that defendant is passing off its goods in wrapper similar to the wrapper of the Plaintiff s company. Thus the Trial Court has erred in mixing the disclaimer on the word KHOPRA CANDY with the rights that the Appellant/plaintiff has claimed by virtue of the registration of the features of the whole label i.e. colour scheme, design, getup etc. and also on account of prior use of the label wrapper/label of the KHOPRA CANDY (Ex-P-6 of the Appellant/plaintiff, about which it has already been held that the appellants/plaintiff has succeeded to prove that they are its prior user and Issue No. 1 has been answered in favour of the appellant/plaintiff). In addition to this, the learned Trial Court committed a further error by overlooking the established principle of law that for maintaining a passing off action registration of a trademark is not a requirement and even though there may be a disclaimer on any particular feature on a wrapper/label, a passing off action can still be maintained, and succeed, if the claimant succeeds in showing that the disclaimed feature in a registration has acquired distinctiveness by virtue of use and promotion and enjoys reputation and goodwill in favour of the claimant, provided such a feature is capable of acquiring such distinctiveness. It is clear from the impugned judgment that the Trial Court made minute and microscopic comparison of the labels/wrappers of the parties and in doing so has not sought guidance from the judicial precedents and the rules of comparison/test of comparison laid down in a number of cases decided by the honourable Supreme Court and the High Courts of the country. I may observe here that it is a very common defence for any infringer to argue that either its word mark is different from the word mark of the label, infringement/imitation of which is alleged by the claimant or in other cases when the word mark/trademark is imitated/infringed a defense is taken that the colour scheme or the wrapper of the product is different, based on which it is argued that there is no likelihood of confusion. It has to be noted that under the Trade Marks Ordinance, 2001 a Mark has been defined by section 2(xxiv) as follows: "Mark" includes, in particular, a device, brand, heading, label, ticket, name including personal name, signature, word, letter, numeral, figurative element, colour, sound or any combination thereof." Thus the law envisages each one of the above features namely, inter alia, a name, a word, figurative element, colour, etc., to be a mark by itself and goes on to further specify that any combination of these features would be a mark also. In the market place, generally for consumer products, it is usual for companies to market their products in attractive colourful labels/wrappers/packaging, which often carries a word, a figurative element, a particular colour scheme, design and getup. Each one of these features, as the definition of the "mark" envisages, is a mark in itself. When one feature of a label consisting of a combination of marks is adopted or copied, infringement or copying of that feature (a mark) takes place which is liable to be remedied and it will not be a valid defence by a defendant that he has not adopted/imitated other features of the label mark, which may be different. Thus when a label comprising of a colour scheme, design and getup and a word is copied/imitated by adopting a similar colour scheme, design or getup but a different word, infringement to the extent of colour scheme design, and getup would take place and can be injected to that extent. Similarly if a word is copied but not the colour scheme, design and getup, the infringement takes place only to the extent of word mark and it will not be open to a defendant to allege that due to different word mark, or different colour scheme, design, getup, in the respective labels/ packaging, there will be no likelihood of confusion or deception. This aspect has been explained/narrated in a number of reported cases, in a different context, by holding that when one or more of the essential features of a mark or a label is infringed, infringement takes place, for example, in the cases of Cecil De Cordova and others v. Vick Chemical Company (PLD 1951 Privy Council 108), Jamia Industries Ltd. v. Caltex Oil (Pak) Ltd. and another (PLD 1984 SC 8), Mehran Ghee Mills (Pvt.) Ltd. and others v. M/s Chiltan Ghee Mills (Pvt.) Ltd. and others (2001 SCMR 967) I would, therefore, hold that the plea that respondent's/defendant's mark is NAVEED KHOPRA CANDY whereas Appellant's/Plaintiff's mark is HILAL KHOPRA CANDY and that the former's label/wrapper, colour scheme, design and getup (Ex-P-7) which otherwise is confusing and nearly resembling to that of latter's label/wrapper colour scheme, design and getup (EX-P-6) be considered to be different is not a legally sustainable defence and must be rejected.

9. With regard to trial court's observation that it has come in the evidence of respondent/defendant that "Khopra Candy" is being sold by 30/35 companies in blue colour and, therefore, even if the appellant/plaintiff succeed to show that they are the prior user even then it would not give right to appellant/plaintiff to claim the exclusive right to use Khopra and observed that the word "Khopra Candy" is generic in nature and indicates that a particular candy/sweet has a Khopra (coconut) flavor, essence or filling or is made of Khopra (coconut) and thus no exclusive right can be given to one particular party on these words only. However, this does not mean that no right can be claimed over colour scheme, design and getup of the KHOPRA CANDY product by the appellant/defendant. Secondly, even if it has come in the evidence of the respondent/defendant that 30/35 companies are using Khopra Candy in blue colour that, by itself, does not show that the wrapper/label/ packaging of those products, as a whole, are dissimilar to that of Appellants'/Plaintiffs' Khopra Candy wrappers/label/packaging Ex-P-6. In that respect, the appellant/plaintiff has attached a list of almost 25 cases which the Appellant/plaintiff has filed against various companies which have been decreed by the courts of competent jurisdiction in favour of the Appellant/plaintiff. This aspect shows that this particular product of the Appellant/plaintiff is a very popular and successful product which catches the attention of different competitors who try to make a quick buck by using its reputation and goodwill in the market place, in the said wrapper/colour scheme/packaging and this unfair competition/infringement/passing off must be stopped by the courts of competent jurisdiction if a claim is brought by the owners of such successful traders before them.

10. Be that as it may, and independent of the above, it is to be noted that appearance in the market place of a number of infringements/ imitations of trademarks or wrappers colour scheme, design or getup does not give justification for an infringer/imitator to claim that the trademark of the original proprietor has lost its proprietary status and that due to such reason an infringer/imitator of such a trademark or label or wrapper is entitled to continue with its imitation and infringement.

11. I now turn to determine whether the colour scheme, design and getup of Respondent's label Ex-P-7 is deceptively and confusingly similar to or nearly resembles the colour scheme, design and getup of the label Ex-P-6 of the Appellant/Respondent and is likely to cause confusion and deception to the unwary purchasers. In the case of Burney's Industrial and Commercial Co. Ltd. v. Rehman Match Works (PLD 1983 Kar. 357) it was observed that the Court dealing with an infringement action no doubt considers the similarities and dissimilarities between the registered mark and the offending mark but the decision of the Court should not depend upon the number of similarities and dissimilarities alone. Consideration of similarities and dissimilarities is only a factor or aid in reaching the final conclusion by the Court. There might very well be a case where dissimilarities may out number the similarities but on account of the general getup, colour scheme, design and other features of the two marks, the Court very rightly reached to the conclusion that the offending mark was likely to deceive the unwary purchaser. The comparison by the Court between the two marks is not to be a meticulous comparison, the reason being to reach the mind of an incautious or unwary purchaser and for purposes of resemblance, the two marks should not be compared side by side and the question in cases of alleged conflict between two marks always is whether a person will be deceived when he sees one trade mark in the absence of another mark. In the case of Jamia Industries Ltd v. Caltex Oil (Pak) Ltd. and another (PLD 1984 SC 8) at page 10 para 5 going on to page 11 the honourable Supreme Court observed as follows: "The examination of reported cases indicates that a decision on the question whether a mark so nearly resembles another as to be likely to deceive or cause confusion is not an exercise of discretion by a Tribunal but a finding of fact. Kerly in his book Law of Trade Marks and Trade Names (1966 Edn.) at page 838 makes the following observations on the principles to be followed in comparing the two marks. "Two marks, when placed side by side, may exhibit many and various differences yet the main idea left on the mind by both may be same. A person acquainted with one mark, and not having the two side by side for comparison, might well be deceived, if the goods were allowed to be impressed with the second mark, into a belief that he was dealing with goods which bore the same mark as that with which he was acquainted. Thus, for example, a mark may represent a game of ball; another mark may show players in a different dress, and in very different positions, and yet the idea conveyed by each might be simply a game of football. It would be too much to expect that persons dealing with trade marked goods, and relying, as they frequently do, upon marks, should be able to remember the exact details of the marks upon the goods with which they are in the habit of dealing. Marks are remembered rather by general impressions or by some significant detail than by any photographic recollect of the whole. Moreover, variations in details might well be supposed by customers to have been made by the owners of the trade mark they are already acquainted with for reasons of their own."

12. When the question arises whether a mark applied for bears such resemblance to another mark as to be likely to deceive, it should be determined by considering what is the leading characteristic of each. The one might contain many, even most, of the same elements as the other, and yet the leading, or it may be the only, impression left on mind might be very different. On the other band, a critical comparison of two marks might disclose numerous points of difference, and yet the idea which would remain with any person seeing them apart at different times might be the same. Thus it is clear that a mark is infringed if the essential features, or essential particulars of it, are taken." In the case of J/N Nichols (Vimto) Plc A Company Incorporated in the United Kingdom v. Mehran Bottlers (Private) Limited, Karachi (PLD 2000 Kar. 192) a learned single Judge of the Sindh High Court relied on the case of M/s. Hiralal Parbhudas v. M/s Ganesh Trading Company (AIR 1984 Bombay 218) wherein the High Court of Bombay, after taking into consideration several decisions of the Indian Supreme Court, summed up well established principles to be observed in deciding the question of similarity of two marks in the following manner:- a) What is the main idea or the salient features? b) Marks are remembered by general impressions or by some significant detail rather than by a photographic recollection of the whole. c) Overall similarity is the touchstone. d) Marks must be looked at from the view and first impression of a person of average intelligence and imperfect recollection. e) Overall structures, phonetic similarity and similarity of idea are important and both visual and phonetic tests must be applied. f) the purchaser must not be put in a state of wonderment. g) Marks must be compared as a whole, microscopic examination being impermissible. h) the broad and salient features must be considered for which marks must not be placed side by side to find out differences in design. (i) Overall similarity is sufficient. In the case of Burney's Industrial and Commercial Co. Ltd. v. Rehman Match Works (PLD 1983 Karachi 357) it was held that where two marks are not identical the crucial point requiring consideration would be that defendant's mark so nearly resembles that plaintiff's registered trade mark as to be likely to deceive or cause confusion in the course of trade and that it has to be seen whether an unwary or incautious or careless or unguarded purchaser is likely to be misled or deceived into purchasing goods of a person infringing the trade mark as goods of proprietor of trade mark keeping in mind vast difference in literacy ratio and condition of life in Pakistan as compared to developed countries. Test is that of an unwary purchaser and it is he whose evidence only would be relevant-Evidence of intelligent customer or even an expert may not be relevant. Comparison by Court between two marks not to be meticulous - Court to reach mind of an unwary purchaser - Question in cases of alleged conflict between two marks always being whether a person will be deceived when he sees one trade mark in absence of another mark. At page 371 it is observed that "

9. It is for the Court to decide whether there is an infringement of the registered trade mark in terms of section 21(1) of the Trade Marks Act, 1940. Evidence given by purchasers to the effect that they were or were not deceived by the infringing mark is generally not of much assistance to the Court. Evidence of an expert witness or an intelligent customer or even a customer of average intelligence who takes ordinary care while buying goods in the market, would not be relevant as the test is that of an unwary purchaser and it is only the evidence of an unwary purchaser which would be relevant. Then some witnesses for the plaintiff in a trade mark whereas other witnesses giving, evidence for the defendant may depose to the contrary. It may, therefore, be observed that invariably the Court, after taking into consideration the two marks-the registered and the infringing-decides whether the unwary purchaser is or is not likely to be deceived." In the case of Bashir Ahmed v. Firm Hafiz Habibur Rehman, reported in 1980 CLC 1268 the Court at page 569 held that; "In such like cases the test of the infringement of registered mark, as laid down by a Division Bench in Ram Kumar Jalan v. R.J. Wood & Co., Ltd. (AIR 1941 Lah. 263) is whether the unwary purchaser is likely to be deceived." This criterion was followed by another Division Bench of the Court in Insaf Soap Factory v. Lever Brothers Port Sunlight Ltd. (PLD 1959 Lahore 381) and it was observed: "In cases of the infringement of trademark the test is whether the unwary purchaser is likely to be deceived into purchasing the goods of the person infringing the trademark as the goods of the owner of the trademark still holds good. Not much weight can, therefore, be attached to the few points of dissimilarity between the plaintiffs and defendant's wrappers to which our attention has been drawn by the learned counsel for the appellant because the points of similarity in them are so great that an unwary purchaser is likely to be deceived in purchasing the defendant's goods as that of the plaintiff." While determining the question of infringement of the respondent's trademark, it is to be seen whether the public at large and not that an intelligent section of the public would be confused and misled. Sir George Jessel M.R. in Guardian Fire and Life Assurance Co. v. Guardian and General Insurance Co., Ltd. [(1880) 50 L.J. Ch.] maintained: "The public are careless and it is no use supposing that if they paid a very moderate attention to names they would see they were not the same, but only similar, but they have in fact been deceived."

12. Therefore, in light of what has been stated above and the principles enunciated in the above cases I hold that the colour scheme, design and getup of label/wrapper of respondent/defendant Ex-P-7 is deceptively and confusingly similar or nearly resemble the colour scheme, design and getup of the label/wrapper of Appellant/ plaintiff Ex-P-6 and is likely to cause confusion and deception to an unwary purchaser. Issue No. 2 is therefore, answered in favour of Appellant/ plaintiff and against the respondent/defendant. Issue No. 3: In view of the findings with regard to Issues Nos. 1 and 2, the findings of the learned trial court on Issue No. 3 is set aside/overturned and it is held that by use of similar wrapper/label Ex-P-7 the Respondent/defendant is likely to pass off its goods as goods of Appellant/plaintiff as the Appellant/plaintiff is the original and prior user of the said wrapper/label Ex-P-6 and has reputation and goodwill therein and is likely to suffer damage to its said reputation and goodwill besides damage in the form of lost sales. Hence Issue No. 3 is decided in favour of the Appellant/plaintiff and against the Respondent/defendant. Issue No. 4: In view of the findings on Issues Nos. 1, 2 and 3, the findings of the learned trial court that the Appellant/plaintiff has no locus standi/cause of action to file the suit must be reversed and set aside and it is held that in view of the findings on Issues Nos. 1, 2 and 3, the Plaintiff has a locus standi and a valid cause of action to file the suit and Issue No. 4 is decided in favour of the Appellant/plaintiff and against the Defendant. Issue No. 5: There is no need to adjudicate on Issue No.

5. In view of the above findings, the Impugned Order dated 06.12.2005 is set aside as a whole and the issues are decided as above. As a consequence the suit of the Appellants/Plaintiffs is decreed as prayed for. KMZ/H-14/L Order accordingl