Civil Procdure Code(v of 1908)
0.XXV,R.1 Sindh Chief Court Rules(o.s) security for costs required from plaintiff Defender claimed that plaintiff s suit was false, frivolous, vicious and not maintainable, that plaintiff had no property in Pakistan, therefore, he be directed to deposit specified amount towards costs to be incurred by defendants, in case plaintiff suit failed plaintiff s mark sony was registered in 1961 and mark Dynamicr on was registered in 1987 defendant had not claimed any right on such two mark in joint written statement No rectified proceeding had been filed against plaintiff To say conclusively, at initial stage of suit that plaintiff suit was mala fide, frivolous and baseless and baseless and thus was liable to be dismissed, would amount to prejudging and baseless case before recording of evidence which was not permissible in law previous of O.XXV,R.1,cpc.,however, provided that if plaintiff was foreigner and had no property in Pakistan , then court could require plaintiff to furnish security as cost provisions of Sindh Chief court Rules(o.s), provide that defendant would be entitled for such amountwhich was paid as counsel s fee defendants would not, thus, be entitled for any other cost in case of dismissed of suit with cost plaintiff was directed to execute Bank guarantee or any security in specified amount to the satisfaction of Nazir of court withintwo months.
Atlantic steamers supply co.(taxes) inc. v. m. v. Titisee and others (suit no 1of 1987); semco salvage pvt. ltd, Singapore v. m v. Kaptan Yousuf Kalkawan and other Admiralty AppealNo1 of1993; Messers Gardener smith pvt. ltd.v. Darbar Soap Work Ltd. Suit No 846of1987; Arumugam chettiar and others v.k.r.s. sevugan chettiar and another AIR 1950 mad 779; Mangial sitaram Agarwal v. Smt Durgabai w/o shantiprasad jain AIR 1947 Nag 124 and cellular clothing co Ltd.v. sen Abdul &co. AIR 1939 cal. 154 ref.
Abdul Hameed Iqbal with Hassan Irfan for plaintiff
Zahid Alvi for defendants.
SONY KABUSHIKI KAISHA VS ARIF MUHAMMAD GONDAL1997 CLC 227[Karachi]Before Rasheed Ahmed Razvi, JSony Kabushiki Kaisha PlaintiffVersusArif Muhammad Gondal and 2 other .DefenderCivil Miscellaneous Application No.1272 of 1994 in suit No.505 of1992 decide on 4th August,1996.
0.XXV,R.1 Sindh Chief Court Rules(o.s) security for costs required from plaintiff Defender claimed that plaintiff s suit was false, frivolous, vicious and not maintainable, that plaintiff had no property in Pakistan, therefore, he be directed to deposit specified amount towards costs to be incurred by defendants, in case plaintiff suit failed plaintiff s mark sony was registered in 1961 and mark Dynamicr on was registered in 1987 defendant had not claimed any right on such two mark in joint written statement No rectified proceeding had been filed against plaintiff To say conclusively, at initial stage of suit that plaintiff suit was mala fide, frivolous and baseless and baseless and thus was liable to be dismissed, would amount to prejudging and baseless case before recording of evidence which was not permissible in law previous of O.XXV,R.1,cpc.,however, provided that if plaintiff was foreigner and had no property in Pakistan , then court could require plaintiff to furnish security as cost provisions of Sindh Chief court Rules(o.s), provide that defendant would be entitled for such amountwhich was paid as counsel s fee defendants would not, thus, be entitled for any other cost in case of dismissed of suit with cost plaintiff was directed to execute Bank guarantee or any security in specified amount to the satisfaction of Nazir of court withintwo months.
Atlantic steamers supply co.(taxes) inc. v. m. v. Titisee and others (suit no 1of 1987); semco salvage pvt. ltd, Singapore v. m v. Kaptan Yousuf Kalkawan and other Admiralty AppealNo1 of1993; Messers Gardener smith pvt. ltd.v. Darbar Soap Work Ltd. Suit No 846of1987; Arumugam chettiar and others v.k.r.s. sevugan chettiar and another AIR 1950 mad 779; Mangial sitaram Agarwal v. Smt Durgabai w/o shantiprasad jain AIR 1947 Nag 124 and cellular clothing co Ltd.v. sen Abdul &co. AIR 1939 cal. 154 ref.
Abdul Hameed Iqbal with Hassan Irfan for plaintiff
Zahid Alvi for defendants.
ORDER
This is an application under Order XXV, Rule 1, C.P.C. filed by the defendants praying that the plaintiff be directed to deposit an amount of Rs.2 lacs towards the cost to be incurred by the defendants, in case if the suit of the plaintiff fails. It is averred in the application that the plaintiff's suit is false frivolous, vicious and riot maintainable. That the plaintiff has no property in Pakistan and, therefore, a sum of Rs.2 lacs be deposited towards security.
Order XXV, Rule 1, C.P.C. is analogous to the provisions of Order XLI, Rule 10, C.P.C. with a mark of difference i.e. sub‑rule (2) to rule 10 of Order XLI provides that where security is not furnished within the time as prescribed by the Court, the Court shall reject the appeal. The requirements of rule 1 to Order XXV, C.P.C. are that in the case of a sole plaintiff or more than one plaintiff who are residing out of Pakistan and that such plaintiff or plaintiffs does not possess sufficient immovable property within Pakistan other than the property in suit then the Court can order the plaintiff or plaintiffs within a specified time to give security for all cost incurred or likely to be incurred by any of the defendants. This provision can be invoked either by the Court on its own motion or on the application of any defendant.
It is argued by Mr. Zahid Alvi, Advocate for defendants that admittedly the plaintiff is a foreign company permanently based in Tokyo, Japan and does not have any immovable property in Pakistan. It is further alleged that the plaintiff's suit being frivolous and baseless is likely to be dismissed and that in case of any cost the defendants would not be able to recover the same from the plaintiff. Mr. Abdul Hameed Iqbal, Advocate for plaintiff has denied these allegations but was not able to show that the plaintiff has any immovable property in Pakistan. He has also argued that admittedly the defendants have infringed the registered mark of Sony and Sonic Cassette. Mr. Zahid Alvi has referred to the unreported cases of Balochistan High Court. The first case is of Atlantic Steamers Supply C. (Texas) Inc. v. m.v. Titisee and others (Suit No.l/1987) which is an interim order passed by a learned Single Judge of Balochistan High Court who imposed a condition on the plaintiff to furnish a bank guarantee in the sum of Rs.50,000 to the satisfaction of the Registrar of Balochistan High Court within two weeks and issued notices to the plaintiff for hearing of the application. Mr. Zahid Alvi was not able to show that what final order was passed on the said application. This order being interim in nature has no persuasive value. In the case of Semco Salvage Pvt. Ltd., Singapore v. m.v. Kaptan Yousuf Kalkawan and others (Admiralty Appeal No.l/1993) a learned Division Bench of Balochistan High Court by consent of the parties vide order dated 21‑12‑1993 allowed continuation of the bank guarantees furnished by the appellant till disposal of the main appeal. One of the bank guarantee filed was for Rs. 4 lacs as security for the cost of the respondent in admiralty suit. Therefore, this case is of no help to Mr. Zahid Alvi. In another unreported case M/s. Gardener Smith Pvt. Ltd. v. Darbar Soap Works Ltd. (Suit No.846/1987) a learned single Judge of this Court Mr. Mukhtar Junejo, J. (as his lordship then was) on 18‑12‑1988 directed the plaintiff to furnish bank guarantee in the sum of Rs.20,000 within a period of one month.
The view of the Indian High Courts on the provisions of rule 1 to Order XXV, C.P.C. is that it is a discretionary power for the Courts and that such discretion should be exercised with utmost care and sparingly. In the case of Arumugam Chettiar (minor) and another v. K.R.S. Sevugan Chettiar and another AIR (37) 1950 Madras 779, it was held by a learned Single Judge of Madras High Court that the mere fact that a suit if found not to be bona fide at its initial stage could provide good ground to hold that plaintiff is liable to furnish security for cost and that such security for cost can be asked only in exceptional circumstances. In the case of Matigilal Sitaram Agarwal v. Mt. Durgabai w/o Shantiprasad Jain (AIR (34) 1947 Nagpur 124) a learned Single Judge of Nagpur High Court went up to the extent of saying that for obtaining an order under Order XXV, Rule 1, C.P.C. it is necessary that the main relief in the suit must be for payment of money and that other relief is merely incidental thereto. It was further held that when the main relief is not for payment of money then it would not be sufficient to characterise the suit for payment of money. The Calcutta High Court also held in the case of Cellular Clothing Co. Ltd. v. Sen Abdul &‑Co. (AIR 1939 Calcutta 154) that the word 'may' used in Order XXV, Rule 1, C.P.C. reflects that such power of the Court is discretionary and that unless it is shown that the exercise of power is necessary for the reasonable protection of the defendant, the Court ought not to interfere.
The present suit is filed by the owner of the trade mark‑ Sony and Dynamicron for perpetual injunction, damages and accounts of property etc. It is an admitted position that the mark Sony was registered as far back as in the year 1961 and the mark Dynamicron was registered in the year 1987 in favour of the plaintiffs. The defendants have not claimed any rights on these two marks in their joint written statement. No rectification proceedings have been filed against the plaintiff. In these circumstances, to say conclusively at this stage that the plaintiffs' suit is mala fide and being frivolous and baseless and that it is liable to be dismissed would amount to prejudging a case before recording of evidence which is not permissible in law. However, rule 1 to Order XXV, C.P.C. provides that if a plaintiff is a foreigner and has no property in Pakistan then the Court may ask the plaintiff to furnish security as cost. According to the provisions of the Sindh Chief Court Rules (O.S.) the defendants would be entitled for such amount which was paid as advocate's fee. Therefore, in my view the defendants would not be entitled for any other cost in the event of dismissal of suit with cost.
I, therefore, direct the plaintiff to execute a bank guarantee or any security in the sum of Rs.50,000 to the satisfaction of Nazir of this Court within two months.Accordingly C.M.A. 1272/94stands granted up to the extent as mentioned hereinabove.
AA/S-52-KOrder accordingly
This is an application under Order XXV, Rule 1, C.P.C. filed by the defendants praying that the plaintiff be directed to deposit an amount of Rs.2 lacs towards the cost to be incurred by the defendants, in case if the suit of the plaintiff fails. It is averred in the application that the plaintiff's suit is false frivolous, vicious and riot maintainable. That the plaintiff has no property in Pakistan and, therefore, a sum of Rs.2 lacs be deposited towards security.
Order XXV, Rule 1, C.P.C. is analogous to the provisions of Order XLI, Rule 10, C.P.C. with a mark of difference i.e. sub‑rule (2) to rule 10 of Order XLI provides that where security is not furnished within the time as prescribed by the Court, the Court shall reject the appeal. The requirements of rule 1 to Order XXV, C.P.C. are that in the case of a sole plaintiff or more than one plaintiff who are residing out of Pakistan and that such plaintiff or plaintiffs does not possess sufficient immovable property within Pakistan other than the property in suit then the Court can order the plaintiff or plaintiffs within a specified time to give security for all cost incurred or likely to be incurred by any of the defendants. This provision can be invoked either by the Court on its own motion or on the application of any defendant.
It is argued by Mr. Zahid Alvi, Advocate for defendants that admittedly the plaintiff is a foreign company permanently based in Tokyo, Japan and does not have any immovable property in Pakistan. It is further alleged that the plaintiff's suit being frivolous and baseless is likely to be dismissed and that in case of any cost the defendants would not be able to recover the same from the plaintiff. Mr. Abdul Hameed Iqbal, Advocate for plaintiff has denied these allegations but was not able to show that the plaintiff has any immovable property in Pakistan. He has also argued that admittedly the defendants have infringed the registered mark of Sony and Sonic Cassette. Mr. Zahid Alvi has referred to the unreported cases of Balochistan High Court. The first case is of Atlantic Steamers Supply C. (Texas) Inc. v. m.v. Titisee and others (Suit No.l/1987) which is an interim order passed by a learned Single Judge of Balochistan High Court who imposed a condition on the plaintiff to furnish a bank guarantee in the sum of Rs.50,000 to the satisfaction of the Registrar of Balochistan High Court within two weeks and issued notices to the plaintiff for hearing of the application. Mr. Zahid Alvi was not able to show that what final order was passed on the said application. This order being interim in nature has no persuasive value. In the case of Semco Salvage Pvt. Ltd., Singapore v. m.v. Kaptan Yousuf Kalkawan and others (Admiralty Appeal No.l/1993) a learned Division Bench of Balochistan High Court by consent of the parties vide order dated 21‑12‑1993 allowed continuation of the bank guarantees furnished by the appellant till disposal of the main appeal. One of the bank guarantee filed was for Rs. 4 lacs as security for the cost of the respondent in admiralty suit. Therefore, this case is of no help to Mr. Zahid Alvi. In another unreported case M/s. Gardener Smith Pvt. Ltd. v. Darbar Soap Works Ltd. (Suit No.846/1987) a learned single Judge of this Court Mr. Mukhtar Junejo, J. (as his lordship then was) on 18‑12‑1988 directed the plaintiff to furnish bank guarantee in the sum of Rs.20,000 within a period of one month.
The view of the Indian High Courts on the provisions of rule 1 to Order XXV, C.P.C. is that it is a discretionary power for the Courts and that such discretion should be exercised with utmost care and sparingly. In the case of Arumugam Chettiar (minor) and another v. K.R.S. Sevugan Chettiar and another AIR (37) 1950 Madras 779, it was held by a learned Single Judge of Madras High Court that the mere fact that a suit if found not to be bona fide at its initial stage could provide good ground to hold that plaintiff is liable to furnish security for cost and that such security for cost can be asked only in exceptional circumstances. In the case of Matigilal Sitaram Agarwal v. Mt. Durgabai w/o Shantiprasad Jain (AIR (34) 1947 Nagpur 124) a learned Single Judge of Nagpur High Court went up to the extent of saying that for obtaining an order under Order XXV, Rule 1, C.P.C. it is necessary that the main relief in the suit must be for payment of money and that other relief is merely incidental thereto. It was further held that when the main relief is not for payment of money then it would not be sufficient to characterise the suit for payment of money. The Calcutta High Court also held in the case of Cellular Clothing Co. Ltd. v. Sen Abdul &‑Co. (AIR 1939 Calcutta 154) that the word 'may' used in Order XXV, Rule 1, C.P.C. reflects that such power of the Court is discretionary and that unless it is shown that the exercise of power is necessary for the reasonable protection of the defendant, the Court ought not to interfere.
The present suit is filed by the owner of the trade mark‑ Sony and Dynamicron for perpetual injunction, damages and accounts of property etc. It is an admitted position that the mark Sony was registered as far back as in the year 1961 and the mark Dynamicron was registered in the year 1987 in favour of the plaintiffs. The defendants have not claimed any rights on these two marks in their joint written statement. No rectification proceedings have been filed against the plaintiff. In these circumstances, to say conclusively at this stage that the plaintiffs' suit is mala fide and being frivolous and baseless and that it is liable to be dismissed would amount to prejudging a case before recording of evidence which is not permissible in law. However, rule 1 to Order XXV, C.P.C. provides that if a plaintiff is a foreigner and has no property in Pakistan then the Court may ask the plaintiff to furnish security as cost. According to the provisions of the Sindh Chief Court Rules (O.S.) the defendants would be entitled for such amount which was paid as advocate's fee. Therefore, in my view the defendants would not be entitled for any other cost in the event of dismissal of suit with cost.
I, therefore, direct the plaintiff to execute a bank guarantee or any security in the sum of Rs.50,000 to the satisfaction of Nazir of this Court within two months.Accordingly C.M.A. 1272/94stands granted up to the extent as mentioned hereinabove.
AA/S-52-KOrder accordingly
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