1986 PLP 1063 (CLC)

14. That the defendant No.l has resorted to a further subterfuge in order to conceal the fact that he is violating the spirit and substance of the injunction order passed by this Hon'ble Court. Originally he was selling taxi‑meters under the name and style of Karachi Taxi Meters Company, which is admittedly a sole proprietary concern owned by him, carrying on business at 7, Commerce House, AM/2/295, Akbar Road, Off Frere Road, Karachi. Now he is selling taxi‑meters under the name of Good times Enterprises. It is, however, highly significant that the address shown on Good times Enterprises' cash memos is exactly the same as that of Karachi Taxi Meter Company. Furthermore, the said cash memos. are signed by one Asif Anwar who is the brother of Asghar Anwar the defendant No.1, and who also signs cash memos. issued by the Karachi Taxi Meters Company. True copies of the cash memos. issued by the Karachi Taxi Meter Company and Good times Enterprises are attached herewith marked as E, F and G, respectively." In Suit No. 637 of 1984 there are 2 applications, which are being disposed of by this order. C. M.A. No. 4964 of 1984 is an application filed by the plaintiff under Order XXXIX, rules 1 and 2, C.P.C. praying that the defendants may be restrained from passing off the meters under the name of "Jibike" or other name which are similar in get‑up, design, point and colour, those of the plaintiff and/or which are not manufactured by the plaintiff. The other application is C.M.A. Nd. 3224 of 1985 which has been filed by the plaintiff under Order XV I , rule 1 read with section 151, C . P. C , praying that this Court may call for the record before the Assistant Director F.I.A. and Collector of Customs Valuation, Shah ra‑e‑Faisal, Karachi. In this application it is stated that defendant No.2 (Fait Sons Taxi Meters) and defendant No.3 (Good times Enterprises) have filed certain affidavit in this case which are contrary to the statements /replies made by them before the Assistant Director F.I.A. and the Collector of Customs Valuation. I have heard at length the arguments of Mr. Khalid Anwar, learned counsel for the plaintiff and Mr. Mansoorul Arfin who appears for the defendants in both the suits and also for the proposed defendant in Suit No. 234 of 1984.

2. In support of the application filed in Suit No. 234 of 1984, learned counsel for the plaintiff referred to the pleadings and to the various affidavits, counter‑affidavits and re‑joinders filed by the parties. According to the learned counsel for the plaintiff, Asghar Anwar and Asif Anwar were carrying on the same business but after the interim injunction had been granted in Suit No. 234 of 1984 on 7‑11‑1984, the two brothers, namely, Asghar Anwar and Asif Anwar resorted to further fraudulent tactics and have taken up the stand that Asif Anwar has nothing to do with Asghar Anwar and the injunction orders, dated 7‑11‑1984 and 23‑12‑1984 and are continuing to sell meters under the name of "Novel" as if the said meters are the meters of the plaintiff company. Learned counsel for the plaintiff made the following submissions in support of the proposition that Asghar Anwar and Asif Anwar are jointly carrying on the same business:‑ (a) Asif Anwar had filed affidavits as brother of Asghar Anwar in Suit 234/84. (b) He had filed written statement as attorney of defendant No.l Asghar Anwar. (c) Cash memos. showing sales of Novel Taxi Meters by Karachi Taxi Meters Co. (defendant No.l) have been signed by Asif Anwar. (d) Asif Anwar and Asghar Anwar have been carrying on the same business in the same shop. (e) After the injunction order, dated 23‑12‑1984, Good times. Enterprises for the first time shows a new address of business. (f) If business of sale of taxi‑meters of Novel Brand was carried on from the same shop by the two brothers, the reasonable inference that can be drawn would be that the two brothers were carrying on one business but under two names. According to the learned counsel, it is difficult to accept that competing business was being carried on by the two brothers in the same shop. It was submitted that the stand taken by Asif Anwar that he had imported from Japan Nishibe Novel Brand Taxi Meters and/or had purchased such meters from other parties, who had imported the same from Japan, and that the said meters are being sold by him under the name of Good Times Enterprises is not supported by the documents on record. It was argued that in fact both Asghar Anwar and Asif Anwar were carrying on business together and were passing off their taxi‑meters as if they were the taxi‑meters of the plaintiff‑company and the injunction order, dated 23‑12‑1984 is applicable, in the circumstances, to Asif Anwar also. The contention was that by selling such taxi‑meters, both Asghar Anwar and Asif Anwar have violated the orders, dated 23‑12‑1984 of this Court. In the alternative, it was argued that in case the Court comes to the conclusion that the injunction order, dated 23‑12‑1984 did not apply to Asif Anwar, he may be impleaded as a defendant in Suit No. 234 of 1984 and an injuhction order may be passed against him on the same terms as was passed by order, dated 23‑12‑1984 against the defendants.

3. The applications have been opposed by the defendants and also by Asif Anwar, the proposed defendants. Mr. Mansoorul Arfin, who appears for them, submitted that the pleadings clearly show that Asghar Anwar is the sole proprietor of defendant No.1 in Suit No. 234 of 1984 that is Karachi Taxi Meter Co. It was pointed out that the third brother Tahir Anwar died in 1981 and he had imported taxi‑meters and on his death, Asghar Anwar took over the business of Tahir Anwar and has been selling the meters which are genuine Nishibe meters imported from Japan. It was argued that in the affidavits filed on behalf of the plaintiff, there has been no denial that Asghar Anwar is the sole proprietor of defendant No.l, Karachi Taxi Meter Co. Referring to the documents relied upon by the learned counsel for the plaintiff in which Tahir Anwar has signed as owner of Karachi Taxi Meter Co., Mr. Mansoorul Arfin pointed out that in fact Tahir Anwar was the Manager and was not the owner or proprietor of Karachi Taxi Meter Co. he referred to Annexures 'A', 'D' and 'E' to the affidavit dated 3‑10‑1984 filed on behalf of the plaintiff in which documents Tahir Anwar has signed as Manager and not as owner. He also referred to Constitutional Petition No.978/81 in which Asghar Anwar is shown as the sole proprietor of Karachi Taxi Meter Co. Mr. Mansoorul Arfin relied upon heavily on the averments made in the affidavit dated 2‑12‑1984 of Asif Anwar which was filed prior to the passing of the injunction order, dated 23‑12‑1984. According to the learned counsel, in this further affidavit of Asif Anwar, he had mentioned that he was also selling taxi‑meters under the name of Nishibe but the plaintiff did not choose to join Asif Anwar as a party. It was emphasised by the learned counsel for the defendants that Asif Anwar and Asghar Anwar were carrying on separate businesses and there is no prohibition that same business cannot be carried on separately by the two brothers in the same premises. It was pointed out that in all the affidavits on behalf of the defendants a clear stand has been taken that Asghar Anwar is the sole proprietor of Karachi Taxi Meter Co. It was also submitted that the consistent stand of the plaintiff, prior to the filing of C.M.A. No. 2915 of 1985 in Suit No. 234 of 1984 by the plaintiff, was that Asghar Anwar as selling Nishibe Taxi Meters and no allegation had been trade against Asif Anwar. According to the learned counsel, Asif Anwar is a whole seller and Asghar Anwar is a retailer and there has been no competition between the two brothers in this trade. It was pointed out that the injunction order, dated 23‑12‑1984 was against Asghar Anwar and how can Asghar Anwar include Asif Anwar specially in view of the previous stand of the plaintiff, and if there is no injunction against Asif Anwar, no question arises of any contempt having been committed by Asif Anwar.

4. Opposing the application for joinder of Asif Anwar as a party in Suit No. 234 of 1984, it was pointed out by Mr. Mansoorul Arfin that what was being sought was a change in the nature of suit. As regards the request for grant of injunction against Asif Anwar, it was argued by Mr. Mansoorul Arfin that no material had been produced that Asif Anwar was selling fake meters and that there was no restriction on the import of Novel meters by the Government. Reference was made to Annexure D‑32 to the counter‑affidavit, dated 2‑12‑1984 of Asif Anwar, which, according to the learned counsel, shows import of 200 Novel meters from Makino Trading Corporation of Japan. It was submitted that there is no allegation that Makino Trading Corporation is a fake company or that 200 meters, which were imported by Asif Anwar, are fake. The case of Asif Anwar is that he imports Novel taxi‑meters from Makino Company of Japan without accessories and he buys accessories from the local market and after fixing them and adjusting tarrif, the meters are sold. According to the learned counsel, the machinery of the imported meters is not changed. According to the learned counsel for the defendant, the meters sold by Asif Anwar are genuine or else these would not have been cleared by the customs. Mr. Arfin also relied upon the cases of National Bank of Pakistan v. Muzammal Hussain P L D 1965 Kar. 633 and Jans Caterers v. Islamic Republic of Pakistan P L D 1972 Lah. 169 in support of his contention that Asif Anwar is neither a necessary nor a proper party to Suit No.234/84.

5. Reference has already been made to the order, dated 23‑12‑1984 which disposed of the temporary injunction application previously filed by the plaintiff in Suit No.234/84 C.M.A.No.1370/84. At that time Asif Anwar was not a party to Suit No.234/84. Even at present the two defendants are Karachi Taxi Meter Co. and Faiz Sons Taxi Meter Co. Before the order, dated 23‑12‑1984 had been passed, a stand had been taken by the defendants as well as Asff Anwar in his affidavits that Asghar Anwar is the sole proprietor of Karachi Taxi Meter Co. Technically, therefore, the injunction orders, dated 7‑11‑1984 and 23‑12‑1984 did not extend to Asif Anwar in spite of the injunctions having been granted as prayed in C.M.A.1370/84 and even if Asghar Anwar and Asif Anwar were carrying on the same kind of business from the same office. The benefit must go to the alleged contemner. No material has been placed on record to show prima facie that Asghar Anwar has sold any taxi‑meters under the name of Novel since the injunction orders were passed in Suit No.234/84. As violation of the orders passed by this Court has not been established, no action is called for against Asif Anwar or Asghar Anwar under Order XXXIX, rule 2(3), C.P.C. 6.. Before dealing with the prayer in C.M.A.No.2915/85 for a fresh order of injunction against Asif Anwar, it is considered proper to decide the other application, namely C.M.A.No.2916/85 for joinder of Good Times Enterprises with Asif Anwar as sole proprietor as a defendant in Suit 234/84. There cannot be two opinions about the right of the plaintiff to file another suit against Asif Anwar seeking the same reliefs as are claimed in Suit 234/84. The question, however, is whether he can be joined as a defendant in Suit 234/84. In my view, a case has been made out for joinder of Asif Anwar, Proprietor of Good Times Enterprises, as a defendant in Suit 234/84. This suit is a pass action and relates to sale of Novel taxi‑meters. The case of the plaintiff is that defendants are passing off imitation taxi‑meters as Novel taxi‑meters of the plaintiff whereas the defence of the defendants is that they import Novel meters from Japan and after adding some accessories sell‑ the meters in the market. In the affidavits of Asif Anwar specifically affidavit, dated 2‑12‑1984 filed on behalf of Asghar Anwar, details about imports of Novel taxi‑meters by the three brothers namely dsghar Anwar, Asif Anwar and late Tahir Anwar were given in defence of the case of the defendants. Sales by As if Anwar and Tahir Anwar are also shown in such affidavit. It is an admitted fact that Asq' Anwar and Asghar An war have been carrying on business of sale of taxi‑meters from the same shop till the order of injunction was passed. A point which would require determination in the main suit is whether the two brothers we carrying on one business jointly or the are in the same type of business but carrying on business separately. After the injunction order passed in suit 234184, Asif Anwar has started selling taxi‑meter in the market under the name of Good Times Enterprises. Apparently for considering the defence of Asghar Anwar, the case of import of taxi‑meters by Asif Anwar will call for scrutiny. Now the allegation is that Asif Anwar is also passing off taxi‑meters as that of the plaintiff. In these circumstances Asif Anwar is at least a proper party, if not a necessary party, to be impleaded as a defendant in Suit 234184 as his presence before the Court is for effectually and completely adjudicating upon and settling necessary all the questions involved in this suit. By adding Asif Anwar as a defendant multiplicity of proceedings is also being avoided i.e. filing of a second suit by the plaintiff . C.M.A. No. 2916 of 1985 is, in these facts and circumstances, and Asif Anwar, Sole Proprietor, Good Times Enterprises is grant defendant No.3 in Suit No.234184. Amended plaint will be joined as filed within 3 weeks, and written statement by defendant No‑,3 and amended written statements by defendants Nos. 1 and 2 will be filed within 3 weeks of supply of copy of amended plaint to the learned counsel for the defendants. Thereafter, Suit No. 234 of 1984 may be fixed for settlement of issues. 7 . Coming back to the prayer made in C . M . A . 2915 of 1985 for rant of temporary injunction against Asif Anwar, reference is again g made to the order, dated 23‑12‑1984 allowing the previous temporary injunction application (C.M.A. 1370 of 1984) in Suit No.234/84. From a l perusal of the said order, dated 23‑12‑1984, it is found that the further P affidavit, dated 2‑12‑1984 of Asif Anwar, in which details of import of Novel meters by the three brothers including Asif Anwar are given, had also been taken into consideration and then it was observed:‑ "The total acquisition of ".Novel" taxi‑meters by defendants through import or otherwise as per disclosure made in the further affidavit of Asif Anwar, dated 2‑12‑1984 is far less than the number of taxi‑meter allegedly, sold by defendant No.l (i.e. Asghar Anwar) as per list Annexure 'F' which is filed alongwith sub‑rejoinder of the plaintiff". It prima facie appears that in his further affidavit, dated 2-12‑1984, Asif Anwar wanted to give the impression that the business of the three brothers was interconnected and that the benefit of Novel taxi‑meters alleged to have been imported by Asif Anwar be extended to Asghar Anwar, and it may be observed, that such benefit was given for the purposes of the disposal of the temporary injunction application as is evident from the order, dated 23‑12‑1984. At this stage, therefore, Asif Anwar cannot be allowed another concession that is that benefit of the imports of Novel meters by Asif Anwar shown in his further affidavit be now given to him. Apart from the Novel taxi‑meters shown to have been imported by him in his further affidavit, dated 2‑12‑1984, Asif Anwar has not filed any other document thereafter to show any other imports. Great reliance was placed by Mr. Mansoorul Arfin Advocate on 200 Novel taxi=meters alleged to have been imported by Asif Anwar in June, 1984. According to the case of Asif Anwar, he has been selling these taxi‑meters. Firstly, as observed earlier, these 200 meters are specifically mentioned in the further affidavit, dated 2‑12‑1984 of Asif Anwar and all imports of meters mentioned in this further affidavit had been taken into consideration by order, dated 23‑12‑1984 while considering the case of Asghar Anwar and as such Asif Anwar at this interim stage cannot take advantage of these 200 taxi‑meters for his case. And secondly over 11 years has passed since the import of the said meters. In the ordinary course of business, these must have been sold long before these applications were filed in September 1985. On a question from the Court, Mr. Mansoorul Arfin, on instructions of Asif Anwar who was present in Court, had stated that about one meter is sold by Asif Anwar every day. The 200 meters were imported in June, 1984. Long before September, 1985, when these applications were moved by the plaintiff, as observed earlier, even these 200 meters would have been sold. Prima facie, therefore, it appears that Asif Anwar has been selling imitation taxi‑meters and passing them off as "Novel" taxi‑meters of the plaintiff company. A case for grant of temporary injunction against Asif Anwar has been made out by the plaintiff. A temporary injunction is granted restraining Asif Anwar, defendant No.3 in Suit No.234 of 1984, from selling any taxi‑meters under the name of Novel, till the disposal of the Suit C.M.A. No. 2915 of 1985 stands disposed of.

8. I now propose to deal with the two pending applications in Suit 637/84. The case of the plaintiff is that the defendants in this suit are passing off taxi‑meters under the name of "Jibiki" which are similar in size, design, get‑up and colour of the plaintiffs' "Novel" taxi‑meters. In their submissions, learned counsel had also referred to some decided cases. Mr. Khalid Anwar cited the following judgments:‑ Ram Kumar Jalan v. R.J. Wood and Co. A I R 1941 Lah. 262; Jamal Noor Muhammad Sait & Co. v. Abdul Karim a Co. A I R 1934 Mad. 211; Burney's Industrial and Commercial Co. Ltd. v. Rehman Match Works P L D 1983 Kar. 357 and Jamia Industries Ltd. v . Caltex Oil (Pak) Limited P L D 1984 S C

8. Mr. Mansoorul Arfin learned counsel for the defendants placed. reliance on the following reported cases for advancing the contention that the two meters are not similar in appearance and no deception will be caused in so far as the purchasers are concerned i.e. the taxi drivers:‑ Schweppes Ld. v. Gibbens (1905) 22 R P C 601; J.B. Williams Company v. H.Bronnley and Co. Ltd. (1909) 26 R P C 765; Coleman and Co. Ld. v. Stephen Smith and Co. (1912) 29 RPC 81; Adcock‑Ingram Products Ltd. v. Beecham b.a. tor.,Y.(1978) 7 R P C 232; M. Saper Ld. v. Specter's Ld. and Boxes Ld. (1953) 70 R P C 173 and W. Edge and Sons, Limited v. W.Niccolls & Sons, Limited (1911) 1 Ch.

5. It was further argued by Mr. Mansoorul Arfin, learned counsel for the defendants, that in the instant case the concerned purchaser is not an ordinary unwary purchaser but belongs to a special class of persons namely taxi‑drivers and the test to be applied is whether taxi‑drivers would be deceived by the "Jibiki" taxi‑.meters being that of plaintiff's Novel meters. It was contended that the judgments cited by the learned counsel for the plaintiff and the test about the deception of an ordinary unwary purchaser are not relevant. It was also contended that a taxi‑driver purchasing a taxi‑meter would go by the name and would not be influenced by similarities, if any, between the meters of different companies.

9. In passing off actions and in cases of infringement of trade‑marks the test to be applied is whether the unwary purchaser is likely to be deceived into purchasing the goods of a person infringing the mark as the goods of the owner of the mark and in Jamia Industries case P L D C 1984 S C 8 Supreme Court of Pakistan has observed that while comparing the two marks emphasis is to be laid on the leading features and characteristics of the two marks and the two marks should be seen to ascertain whether they are similar to each other or distinctive from each other.

10. The Novel taxi‑meters and "Jibiki" taxi‑meters sold by the defendants in Suit No.637 of 1984 were shown to me during the course of arguments by the two learned counsel. There are some dis-similarities in the two meters but prima facie the leading features and characteristics of the two types of meters appear to be similar. The size and shape of the two types of meters appear to be almost similar. The plate, which is affixed on the face of the meters, has also apparently very striking similarity. No doubt, the names of the two meters are different; the name of the plaintiff's meter is "Novel" and the name of the defendant's meter is "Jibiki" , but these are written in English and as correctly stated by Mr. Mansoorul Arfin, the purchaser of the taxi‑meters in Pakistan generally are the taxi‑drivers, and it can also be safely presumed at this stage that the taxi‑drivers are not literate at least in so far as English language is concerned. My tentative view at this stage is that looking at the two taxi‑meters in their totality a purchaser of the taxi‑meter is likely to be deceived. No material has so far been placed on record by the defendants to show that any other taxi‑meters of the same shape, size and leading features are also available for sale in Pakistan. It is also an admitted position that Novel taxi‑meters of the plaintiff are being sold and marketed in Pakistan for over ten years, whereas Jibiki taxi‑meters had been introduced by the defendants during the pendency of Suit No.234 of 1984 after interim injunction had been granted in that suit. C.M.A. No. 4964 of 1984 is, in the circumstances, granted as prayed.

11. The other pending application in Suit No.637 of 1984 is C.M.A. No.3224 of 1985 filed by the plaintiff under Order XVI, rule 1 read with section 151, C.P. C . I am not inclined to grant the application in So far as the record of the F.I.A. is concerned but in so far as the and is stands A. A. Orders accordingly.