2003 PLP 429 (SCMR)

4. Subsequently on 25‑5‑2001, the Lyceum, 14‑B, Tufail Road, Lahore, through Mst. Azra Umar as partner, filed suit against the present petitioner, titled "The Lyceum v. Mst. Zeeshan Nadeem", for a decree for permanent injunction in which prayer made was as under:‑‑ "In view of these submissions it is most respectfully prayed that the defendant may kindly be permanently restrained from using plaintiff's name and be directed to stop forthwith using the name 'The Lyceum' of school, at (i) 64‑65 Samanabad, Lahore (ii) 132 Jahanzeb Block, Allama Iqbal Town, Lahore. (iii) 319‑Riwaz Garden, Lahore (iv) 320‑Riwaz Garden, Lahore. The defendant may also be restrained permanently to use plaintiff's name for any other branch of school which she may open in the interest of justice. Costs of the suit may also be awarded."

5. It is also clear from the prayer of the said suit that the present petitioner was sought to be restrained from using the name "The Lyceum" in connection with the school which she was running.

6. The plaintiff in both the suits made application for issuance of temporary injunction. In the suit filed by the present petitioner, an objection was raised that in view of the arbitration clause in the agreement on which reliance was placed by the petitioner in her suit, the same could not proceed. According to learned counsel for the petitioner, the trial Court consolidated both the suits in exercise of inherent powers under section 151, C.P.C. by holding that in both of them, common questions of law and facts were involved.

7. Application moved by Umar Aziz defendant in the suit filed by the petitioner under section 34 of the Arbitration Act was accepted by holding that in view of Arbitration Clause contained in the agreement upon which the present petitioner in her plaint relied, the dispute was covered by the Arbitration Clause therefore, would be referred to the Arbitration. Both the parties were directed to file two names from each side for the appointment of Arbitrator on the next date. As regards disposal of application of temporary injunction, both the parties were allowed to run the schools in the names with which they were running at the date of institution of both the suits till the award was filed into the Court and matter was finally adjudicated upon on the basis of award. It was also assumed that the said arbitration agreement was signed by Umar Aziz as one of the partners of the Lyceum partnership firm therefore, the same was found to be binding not only on him but also on the partnership firm "The Lyceum". It was also observed that the Lyceum having not taken objection against the use of the name "The Lyceum" by the present petitioner in relation to his school for about five months, the said partnership firm in its suit was not entitled to temporary injunction to restrain the present petitioner from using the said name in relation to her school. It was also observed that the Lyceum had started running schools in its own name subsequent to the date of termination of agreement by the present petitioner with Umar Aziz. This was through order dated 24‑7‑2001. Against this order, three appeals were filed before the learned Additional District Judge, Lahore. Civil Appeal No. 197 of 2001 was filed by the petitioner against "The Lyceum", the plaintiff of the other suit. Second appeal bearing No. 196 of 2001 was also filed by the present petitioner against Umar Aziz in her own suit and the third appeal was filed by the Lyceum against the present petitioner arising from its own suit permitting the present petitioner to use the name "The Lyceum", in relation to her school.

8. The petitioner in her appeal objected to the stay of proceedings in her own suit under section 34 of the Arbitration Act. The Lyceum in its appeal objected to the said order so far as it related to permitting the present petitioner to use the name "The Lyceum", in relation to the school being run by her and the third appeal of the petitioner against The Lyceum was directed against the order of the learned Civil Judge holding that it was vested with the jurisdiction to entertain the suit of the Lyceum, it being not a case under Patents and Designs Act as alleged by the present petitioner. The appeals filed by the present petitioner were dismissed by the learned Additional District Judge whereas the one filed by "The Lyceum" i.e., respondent herein was accepted. It was through order dated 3‑11‑2001. As .regards use of the name of "The Lyceum" by the petitioner in relation to school being run by her, it was held as under:‑‑ "Under the given circumstances, Mst. Zeeshan Nadeem had got no legal vested right to use the name of the firm of the respondent under the law and the case of the Lyceum, a registered Partnership firm which admittedly carries business of running schools in the name of 'The Lyceum' in Lahore neither comes within the ambit of Trade Marks Act nor was filed under Patents and Designs Act, thus the learned trial Court has rightly refused to dismiss the suit being barred by law. From the above discussion, I am of the considered view that all three ingredients for grant of injunction relief co‑exist in favour of the Lyceum. "

10. As regard directions of the trial Court that proceedings in both the suits shall remain stayed till the matter was decided by the Arbitrator, it was held that the same would be applicable only to the suit for permanent injunction tiled by the present petitioner and as regards applicability of the same to the suit of the Lyceum/respondent, the order of the trial Court was set aside. As a consequence of this, all the three appeals stood decided in the following terms:‑‑ "Resultantly, the appeals of Mst. Zeeshan Nadeem are hereby dismissed accordingly whereas, appeal of the Lyceum is accepted and the impugned order passed in application for grant of temporary injunction is set aside and the same dismissed accordingly and application for grant of ad‑interim injunction filed by the Lyceum is accepted and as discussed above. There is no order as to costs. File of appeal be consigned to the record room, after its completion and file of trial Court be remitted immediately."

11. The net result of this decision was that so far as application made by the present petitioner for issuance of temporary .injunction against defendant, the same was dismissed and the application made by "The Lyceum" was accepted and temporary injunction against petitioner issued, and Arbitration Clause was held to be applicable only in respect of the suit of the present petitioner and not to the suit of the Lyceum.

12. The petitioner did not file any revision petition against the order of the learned Additional District Judge as regards dismissal of her application for temporary injunction tiled in her own suit whereas she filed only one revision petition against the order through which application of the Lyceum for temporary injunction stood accepted and the petitioner was restrained from, using the name of the Lyceum in relation to her school. She was, however, found entitled to run business in any other name. This revision petition has been dismissed through the impugned judgment dated 21‑1‑2002 by the learned Judge in Chamber of the High Court and the petitioner directed to change the said name to some other within a period of one month from the‑ date of the said judgment against which this petition for leave is directed.

13. According to the agreement of franchise, the petitioner was allowed to run and manage school in the name of "The Lahore Lyceum" in Allama Iqbal Town, Lahore on behalf of Umar Aziz defendant in her suit who is party to the said agreement. It is clear from this that the petitioner was granted permission to run the said school in the said name, therefore, it can safely be held for the purpose of issuance of temporary injunction that the said name was in the use of the respondent before that. It was also provided in the said agreement that the petitioner was not allowed to transfer/lend the name of "The Lahore Lyceum" to any other party unless permitted in writing by the other party of the agreement. In Clause 7 of the said agreement, it was provided that as Lahore Lyceum is known for its standard and reputation, the petitioner ensured not only that the standard would be maintained but the same would be improved by sincere efforts and the other party would remain on frequent touch with the petitioner and will pay regular visits to carry out inspection from time to time.

14. Under this agreement, the petitioner was admittedly allowed to run the school in the name of "The Lahore Lyceum" with over all supervision and right of inspection by the other party to the agreement from which it is clear that the said name was being used by the respondent before the said agreement was entered for running the school in the said name.

15. Learned counsel for the petitioner submitted that there was a difference between The. Lahore Lyceum and "The Lyceum", for in the suit tiled by "The Lyceum", the said partnership firm could not object to the running by the petitioner of her school in the name of "The Lahore Lyceum".

16. This argument in our considered view has no force. The fact remains that the real dispute between the parties is about the use of the word "Lyceum" may be that before the said word, the word "The Lahore" has also been added. Since the petitioner herself of her own showing terminated the said contract, therefore, it was the right of the respondent to object to the use of the name "Lyceum" in relation to school run by the petitioner, therefore, the First Appellate Court and the High Court did not commit any illegality in passing order of temporary injunction in favour of "the Lyceum" in its suit, for the said plaintiff had succeeded to satisfy the Courts that all the three ingredients for issuance of temporary injunction as laid down by the superior Courts i.e. existence of prima facie case, balance of convenience and irreparable loss were satisfied.

17. As has been observed above, no revision petition was tiled by the petitioner against the order of dismissal of her application moved by her in her own suit for temporary injunction in appeal by the First Appellate Court, therefore, the said order became final. It may also be .observed that no prayer was made in the suit filed by the petitioner to restrain either Umar Aziz or "The Lyceum" partnership firm in which he was also a partner from using the name of Lyceum in relation to the schools which they were running.

18. For the foregoing reasons, the impugned judgment dated 21‑1‑2002 of the Lahore High Court and judgment dated 3‑11‑2001 of the First Appellate Court do not suffer from any legal infirmity, therefore, this petition has no merits which is accordingly dismissed and leave refused.

19. Learned counsel for the petitioner submitted that the examination of the students are starting from 4‑3‑2002 which shall conclude on 31‑3‑2002 on which date, the results are to be declared, therefore, time allowed by the High Court to the petitioner to change the name of her school may be extended up to the said date.

20. Learned counsel for the respondent submitted that time may be extended subject to the condition that the petitioner shall submit accounts of the income of the school which the said respondent is entitled to recover as the same was being earned by using the name of the Lyceum to which the respondent is entitled.

21. We have gone through the plaint of the suit of the respondent .in which no decree for the recovery of income of the school against the petitioner has been prayed for whereas in paragraph‑11, it has been stated that on account of use of the name "The Lyceum" by the petitioner, the Lyceum plaintiff was suffering damages on account of adverse effect on their goodwill and business and right was reserved of filing suit for damages, therefore, the Lyceum may seek remedy separately if available to them under the law for the recovery of the damages.

22. The time granted by the High Court, to the petitioner to change the name of the school is hereby extended up to 31‑3‑2002. . S. A. K./Z‑107/S Order accordingly.