2005 PLP 1414 (CLD)

MIAN HAMID FAROOQ, J.

Present: first appeal proceeds against judgment dated 3-7-1998 and decree dated 6-7-1998, whereby the learned District Judge rejected the plaint in appellant's suit for grant of permanent injunction, and order dated 6-7-1998, through which application for the grant of temporary injunction, filed by the appellants in the aforesaid suit, was dismissed.

2. Precisely stated the facts relevant for the decision of the present appeal are that the appellants filed the suit for the grant of permanent injunction and damages, in the Court of learned District Judge, alleging violation and infringement, by the respondent No.1, to their proprietary trade marks etc., together with an application for the grant of temporary injunction under Order XXXIX, rules 1 and 2, C.P.C. Respondent No.1 resisted the suit as well as the aforenoted application through filing the written statement and reply to the said application. Ultimately the learned District Judge dismissed the said application, vide detailed order dated 6-7-1998 and also rejected the plaint vide judgment dated 3-7-1998 and decree dated 6-7-1998, hence the present appeal.

3. Learned counsel for the appellants, while referring to the impugned order dated 6-7-1998 and judgment dated 3-7-1998, has contended that it is beyond human's comprehension that firstly the appellant's plaint was rejected on 3-7-1998 and thereafter the application for the grant of interim relief was dismissed on 6-7-1998. Conversely, the learned counsel for respondent No.1 has submitted that in fact both the order/ judgment were passed on 6-7-1998 and it was due to typographical mistake that judgment bears the earlier date i.e. 3-7-1998.

4. After arguing the matter at considerable length, the learned counsel for respondent No.1 states that he has no objection for setting aside the judgment dated 3-7-1998 and decree dated 6-7-1998 and for the remand of the case to the learned District Judge for fresh decision of appellant's suit. The learned counsel for the appellants, while approving the aforesaid course of action, submits that the injunctive order passed by this Court may be allowed to be remained operative till the decision of the suit. Mr. Ali Zafar, Advocate has taken strong exceptions to this.

5. In the above perspective, as both the learned counsel have consented ,to setting aside of the aforesaid judgment and decree, therefore, we see no legal impediment in acceding to the said request and are inclined to set them aside. However, as regards the interim relief, the learned trial Court rejected appellant's application for the grant of interim relief, vide order dated 6-7-1998, and upon filing the present appeal, this Court, vide order dated 11-8-1998, restrained the respondent No.1 from exporting the footballs. As, in view of the statements of both the learned counsel, we are inclined to remand the case and the appellants have enjoyed the benefits of the said injunctive order uptill now, therefore, we are of the view that in case the said injunctive order is allowed to remain operative for a period of one month, no serious prejudice would be caused to the respondents, rather it would be in interest of justice.

6. Upshot of the above discussion is that the present appeal is allowed and the judgment dated 3-7-1998 and decree dated 6-7-1998 are set aside with no order as to costs. As regards order dated 6-7-1998, whereby appellant's application was dismissed, the same shall hold the field, however, injunctive order, passed by this Court viz. "Respondents are c restrained from exporting footballs" shall remain operative for a period of one month from today. Resultantly appellant's suit shall be deemed to be pending before the learned District Judge, Sialkot, who shall himself decide the same, afresh, within a period of one month from today, after hearing the parties and of course in accordance with law within a period of one month. During the said period of one month, aforenoted injunctive order shall remain operative. S.A.K./A-371/L?????????????????????????????????????????????????????????????????????????????????? Appeal accepted.