2003 PLP 1492 (CLD)

Mustafa Ramday for Appellant. Respondent: Ex parte. Date of hearing: 28th April, 2003. This F.A.O. is a trade mark case which was sub judice before an Additional District Judge at Lahore. The suit was dismissed on 21-7-2001 because of the default of the plaintiff. The plaintiff later moved an application for its restoration taking the plea that inadvertently 27-7-2001 had been recorded as the next date and when it transpired after two days that the suit had been dismissed in default. The learned trial Court did not agree with the contentions raised by the learned counsel for the appellant and for reasons recorded in paragraph No.7, dismissed the application for restoration of the suit.

2. Several notices have been sent to the respondents' side but no one has turned up. This Court is told by the office that pursuant to the last orders of this Court dated 16-4-2003, telegraphic notices have also been sent besides the notices which were sent otherwise. The respondents are, therefore, proceeded ex parte.

3. My learned brother Jawwad S. Khawaja, J, the contentions of the learned counsel for the 10-4-2002 in the following words:-- "Learned counsel contends that the impugned order dated 8-3-2002 passed by the learned Additional District Judge dismissing the suit of the appellant for non-prosecution is not sustainable, firstly, because the basis thereof, as set out in the impugned order, could, at most, have resulted in the withdrawal of interim relief and not dismissal of the suit. Secondly, he contends that the counsel of the appellant/ plaintiff had submitted an affidavit alongwith an application seeking restoration of the suit. The contents of the affidavit disclose that the appellant's counsel had mistaken the date of hearing which is why he did not appear on the date the suit was dismissed."

4. This position taken by the learned counsel for the appellant is uncontroverted as no one appeared in the Court today.

5. Just for a day's absence, the learned trial Court ought not to have adopted the extreme measure of not restoring the suit when an affidavit given by the plaintiff's side explained the failure. Learned counsel went on to sad. that the learned trial Court has also gone beyond its role in, attributing mala fides although such remarks were uncalled for and which are reflected in paragraph No.7. He prays for expunction of those remarks.

6. It may be pointed out that trade mark disputes ought to be decided after hearing all sides as the infringement of such rights creates problems for the commercial world who are the backbone of the economy. Even otherwise, one absence could have been overlooked and case restored.

7. This Court, therefore, sets aside the impugned order and this includes the remarks given therein, and remands the case to the learned trial Court where the parties should appear on the 2nd of May, 2003, so that the trial Court may proceed further with the matter on merits. S. M. B. / N-304 / L Case remanded.