1984 PLP 208 (MLD)

AJMAL MIAN, J.--This is an appeal against the orders dated 16-2-1984 and 26-3-1984 passed by a learned Single Judge of this Court in Suit No.85/84. The brief facts leading to the filing of the above appeal are that the respondent/ plaintiff filed the aforesaid suit for permanent injunction and damages, on the basis of the averments that they enjoy exclusive copy right in the design in respect of nozzle device by virtue of registration bearing No.6837 under the Design Act, 1911 granted on 25th January, 1983 for their product Toothpaste. It was also averred that the appellant /defendant have been infringing the above registered design by using the same device for their product toothpaste. Alongwith the plaint an application under Order XXXIX, rules 1 and 2, C.P.C~ was filed, which was placed before the learned Single Judge on 14-2-1984 for chamber order, an ex parte ad interim injunction was granted. It seems that the bailiff of this Court on 15-2-1984 went to serve the summon of the suit and the notice of the injunction application at the appellant /defendant's registered office. The persons available in the appellant/ defendant's office declined to accept the summon and the notice. According to the bailiff's report he left the summon and the notice at the appellant /defendant's office. It further seems that on 16-2-1984 the above ex parte ad interim order was confirmed by the learned Single Judge in the absence of the appellant /defendant. The appellant /defendant filed an application for recalling the above order of granting injunction, but the same was declined by the learned Single Judge by his order dated 26-3-1984. After that the appellant/ defendant have filed the present appeal. 2. (a) In support of the above appeal Mr.Khalid M.Ishaque, learned counsel for the appellant/defendant has urged as follows:

(i) That there was no valid service of the summon/notice on the appellant/defendant in terms of Order XXIX, rule 2, C.P.C. (ii) That even otherwise no injunction could have been granted on the basis of the averments contained in plaint. (b) On the other hand Mr. Kamal Azfar, learned counsel for the respondent plaintiff has contended as follows:- (i) That the service of the summon/notice was legally held good by the learned Single Judge. (ii) That the respondent/ plaintiff had made out prima facie case for an ad interim injunction.

3. It seems that at the time when the bailiff of this Court went to serve the summon/notice, the only persons available in the appellant/ defendant's office were one Telephone Operator and one Peon. It may be observed that under Order XXIX, rule 2, C.P.C. the mode of service of the summon/notice on a corporation has been provided, which Provides that subject to any statutory provision relating to service of process against the corporation, the summon may be served on the Secretary or on any director or on other principal officer of the corporation or by leaving it or sending it by post addressed to the corporation at the registered office and when there is no registered office then leaving at the place where the corporation carries on business. We are inclined to hold that in order to effect a valid service, the service should be on any of the persons named in clause (a) of rule 2 of Order XXIX, C.P.C., but in case the summon or notice is to be left at the registered office or at the place where corporation carries on business, it should be done during the office hours of the corporation concerned. In the present case the summon/notice were left by the bailiff at the time when the appellant /defendant's office was not working as all the members of the staff had left except a Telephone Operator and a Peon. In this view of the matter, it will be just and proper to remand the case to the learned Single Judge for rehearing of the stay application for confirmation of the ad interim injunction from the stage at which it was on 16-2-1984. Order accordingly. The appellant/ defendant as well as respondent/ plaintiff will have the right to file counter affidavit, rejoinder and further material in respect of their respective contentions for and against the injunction application. The appeal stands disposed of in the above terms with no order as to costs. M. A. K. Case remanded.