2004 PLP 875 (CLD)

It is in fact Olanzapine then defendants will have no objection if the suit is decreed except for relief of damages. Learned I counsel for the plaintiffs in the case stated that the said statement has been understood and he has no objection if the suit is decreed in accordance with the same. The suit regarding the relief of damages is withdrawn. It was further stated that medicines against Patent No.132683, formula whereof has been stated by the learned counsel for the defendants is' Olanzapine. The suit was accordingly decreed except for relief of damages regarding which the suit was dismissed as withdrawn. A decree sheet was drawn up on 11‑4‑2001 stating the relief as follows:‑‑

2. On 29‑9‑2001 an execution petition was filed by the respondents before the learned trial Court against the said judgment‑debtors i.e. petitioner No.1 as well as its Directors, Chief Executive and Principal Officers. It was alleged that in violation of the said decree the judgment‑debtor has launched its Olanzapine containing products under the trademark "Schezonil" as detailed in para.5 of the application. The prayer was made for attachment of movable and immovable assets, receivable and other properties of the judgment‑debtor including those in the name of its Chief Executives, Directors, Partners and Principal Officers. The particulars of petitioners Nos.2 to 6 were provided. The sale of the said properties and assets was also prayed for. The prayer was also made for detention of petitioners Nos.2 to 5 in civil prison. The petitioners filed a reply. The plea taken was that the products patented under Patent No.132683 is not actual chemical compound known as Olanzpine; that chemical formula of the products claimed by the decree‑holders is different from that of the products of the judgment‑debtors; that the said Schezonil tablets contained a different chemical compound with a different chemical formula as compared to decree‑holders patent products and that the judgment‑debtor has not disobeyed the decree. The learned executing Court heard the petitioners that they did not intend to manufacture any product containing 'Olanzapine'‑‑‑Relief of injunction was granted by the Trial Court, but the damages were denied, resulting in the withdrawal of suit in that regard‑‑‑Respondents subsequently filed an execution petition against the petitioners praying for attachment of their properties and their detention as they had violated the said decree by launching 'Olanzapine' ‑containing products under the trade mark 'Schezonil'‑‑‑Executing Court accepted the petition of the respondents, and ordered the detention of the petitioners, attachment of their properties and confiscation of their products in the name of 'Schezonil'‑‑‑Revision petition was filed by the petitioners‑‑‑Contention of the petitioners was that the executing arguments and vide order dated 27‑5‑2003 proceeded to hold that the decree of the Court has been disobeyed by the petitioners and proceeded to order the detention in jail of the: petitioners as also attachment of movable and immovable properties. It was further directed that the drugs manufactured by the judgment‑debtors i.e. "Schezonil" launched by them in the market for sale be confiscated. Directions were issued to the District Magistrate and S.S.P. Islamabad to arrest the petitioners and to produce them before the Court. The Revenue Authorities were directed to attach the properties of the judgment‑debtors.

3. Syed Najam‑ul‑Hassan Kazmi, learned counsel for the petitioners contends that the learned executing Court has proceeded to pass the impugned order imposing harsh penalties upon the petitioners without holding trial and recording evidence as to whether or not the decree has been disobeyed. He relies on the cases of Hatim v. Shah Din PLD 1952 Lahore 77 affirmed in the case of Raja Talat Mahmood v. Ismat Ehtishamul Haq 1999 SCMR 2215.

4. Mr. Farrukh Irfan, learned counsel for the respondents, on the other hand refers to the case of Mst. Naseem Akhtar and 4 others v. Shalimar General Insurance Company Ltd. and 2 others 1994 SCMR 22 to urge that the relief prayed for in the form of injunction in the suit having been granted by means of a decree, the same is to be executed as it is and the executing Court cannot go behind the same. According to the learned counsel it can be and in fact was demonstrated before the learned executing Court, without necessity to record evidence, that the decree has been disobeyed. According to the learned counsel drug Olanzapine stands patented in favour of his clients and is result of investment of millions of dollars and hard work put in research over a period of several years and the petitioners cannot be allowed to violate the same. According to the learned counsel the dispute as to the formula of chemical compound is illusory and in fact the petitioners are manufacturing/selling the same Olanzapine regarding which the injunctive decree has been passed.

5. I have examined the trial Court as well as executing Court records with the assistance of the learned counsel for the parties. Now so far as the proceedings in the suit are concerned, as stated by me above these were brought to rather an abrupt close vide the proceedings of the learned trial Court crated 11‑4‑2001, reproduced in some detail by me above. The decree was passed accordingly. Be that as it may, an examination of the written statement available in the file of the learned trial Court does go to show that the stance taken by the petitioners was that they do not intend to manufacture any product containing Olanzapine which has been allegedly patented vide Patent No.132683.

6. Now the suit was disposed of on the basis of statement got recorded by the learned counsel for the parties respectively and decree does refer to the said statement as noted by me above. To my mind, the examination of the said statement which find reference in the decree itself would not be tantamount to be going behind the same.

7. Now before the learned executing Court the parties took specific pleas, the decree‑holders alleging that the decree has been disobeyed and the judgment‑debtors denying the said facts. Now coming to the impugned order dated 27‑5‑2003 of the learned executing Court, there is a reproduction of the relieves claimed by the respondents in the suit. Thereafter the said statements have been reproduced and the factum of decretal of the suit except relief of the damages. Now I find that after noting the contentions of the parties the learned executing Court has proceeded as if a trial has been conducted. He has observed that several facts have either been established or proved on record. Then the learned Judge refers to certain reference books which apparently go to support the plea of the petitioners that the formula of products being manufactured by them is different. He has brushed aside the same holding that the contents of the books are wrong. As to how the learned Judge has arrived at the said conclusion is anybody's guess, particularly when learned executing Court has itself observed that it is a formula and not the generic name which is patented.

8. To my mind, the impugned order borders on conjectures and surmises and these should not have been resorted to for imposing the punishment imposed by the learned executing Court upon the petitioners vide the impugned order.

9. In the said case of "Raja Talat Mehmood" Honourable Supreme Court quoted with approval the following observations of this Court in the said case of "Hatim":‑‑ "It is true that the present case lies in the civil jurisdiction, but penalties involved are clearly of a criminal nature, and, notwithstanding that no precise procedure has been laid down, it is expected that any Court which feels called upon to impose these penalties should proceed as nearly as possible in the same manner as a criminal Court would proceed; in other words, that at the earliest opportunity, when it has formed the opinion that facts exist which may require the imposition of the penalties, the Court shall put the person at fault on his guard by framing a question or an issue which should embody all the elements of a charge under the criminal jurisdiction. The facts should be briefly stated, as they are alleged to stand against the defaulter, and there should be a precise reference to the law under which the Court proposes to punish him, unless he shows cause against such punishment. In the absence of any such procedure, it is not possible to uphold the order of imprisonment and attachment made by the original Court."

10. Mr. Farrukh Irfan, learned counsel for the respondents refers to the case of Bakhtawar etc. v. Amin etc. 1980 SCMR

89. However, in the said case the facts were that the plaintiff on whose application status quo order was passed himself violated the same and proceeded to demolish the "Khal" which very much existed according to his own plaint.

11. For all that has been discussed above, this civil revision is allowed. The impugned order dated 27‑5‑2003 of the learned executing Court is set aside. The parties shall appear before the learned executing Court to whom the records will be remitted back immediately. The allegations made in the execution application and reply filed by the petitioners/judgment‑debtors shall be considered and issue arising therefrom shall be framed. Thereafter such evidence as the parties wish to produce be recorded and the matter be decided accordingly. In view of the nature of the proceedings learned executing Court shall take all steps to expedite the proceedings so as to conclude the same before the commencement of summer vacation, 2004. No order as to costs. M.A.W./W‑9/L Case remanded.