Application for grant of mandatory injunction--Allowed--Ex-party proceedings-

PLJ 2021 Karachi 56

Intellectual Property Organization of Pakistan Act, 2012 ( of 2012)--

----S. 19--Civil Procedure Code, (V of 1908), O.XLIII--Application for grant of mandatory injunction--Allowed--Ex-parte proceedings--Similar packing of two products--Opportunity of hearing--Administration of justice--Deprivation of rights of appellant--Challenge to--Normally mandatory injunction can’t be granted without hearing of other side because same surely operates against certain legal rights or obligations--It may well be added that such like mandatory injunction be not granted without allowing opportunity of hearing which, otherwise, is integral part of every proceedings within meaning of Article 10-A of Constitution, particularly when decision of such like proceedings is likely to effect upon rights or obligations--A departure, however, may be made only if such right is being used to delay/frustrate proceedings or exceptional circumstances so justifies which (exceptional circumstance must include irreparable loss--Status of both marks as registered is not disputed as well marketing thereof, therefore, it is always demand of safe administration of justice to provide an opportunity of hearing even while granting a mandatory injunction which (injunction) has been assailed to have deprived appellant of its rights which, too, without hearing--Appeal was disposed of.

                                                                                      [Pp. 57] A & B

M/s. Sultan Ahmed Shaikh and Salman Ahmed Shaikh, Advocates for Appellant.

Mirza Mehmood Baig, Advocate for Respondents.

Date for Haring: 25.11.2019.

PLJ 2021 Karachi 56
Present: Salahuddin Panhwar, J.
TREND INTERNATIONAL through Proprietor--Appellant
versus
MUSTAFA REHMAN and another--Respondents
M.A. No 70 and C.M.A No. 9360 of 2018, decided on 25.11.2019.

Order

Admittedly, parties are not at dispute with regard to trademark registration, however, issue relates to the alike (similar) packing of two products. Order dated 04.10.2018 passed by Presiding Officer, Intellectual Property Tribunal reflects that same is ex-parte, as only Respondents were heard and after hearing them, the appellant was restrained from marketing of its products on the issue of resemblance in packing. It seems that through interim order the appellant has been deprived of marketing its products, which is duly registered; without there being any justification in this behalf and the said order merely rests on the arguments and prim a facie is without adjudication of such issue, which normally is the core issue in such like matters. Needless to mention that normally mandatory injunction can’t be granted without hearing of other side because same surely operates against certain legal rights or obligations. It may well be added that such like mandatory injunction be not granted without allowing opportunity of hearing which, otherwise, is integral part of every proceedings within meaning of Article 10-A of Constitution, particularly when the decision of such like proceedings is likely to effect upon rights or obligations. A departure, however, may be made only if such right is being used to delay/frustrate the proceedings or exceptional circumstances so justifies which (exceptional circumstances must include irreparable loss. Reliance in this regard may be made to the decision given by the Hon’ble Supreme Court of Pakistan in the case of Cantonment Board, Rawalpindi and another Vs. Muhammad Yaqoob and 49 others (1994 SCMR 2024), relevant paragraph whereof is reproduced as under:

“Be that as it may, the learned High Court appears to have acted in, has in the issuance of ad interim mandatory injunction without hearing the opposite side and considering the legal aspect of the case. The impugned order is; therefore, not sustainable. We accordingly, convert this petition into appeal and by allowing the same, set aside the impugned order of the High Court. However, it is directed that the main revision petition may be disposed of as early as possible preferably within one month.”

2. In the instant matter status of both marks as registered is not disputed as well marketing thereof, therefore, it is always demand of safe administration of justice to provide an opportunity of hearing even while granting a mandatory injunction which (injunction) has been assailed to have deprived appellant of its rights which, too, without hearing. Accordingly, impugned order is found to be unjustified and ab-initio void, same is set aside and application for injunction be deemed to be pending which, the tribunal shall decide afresh within one month after hearing the parties. The parties shall ensure their presences before tribunal. The instant appeal stands disposed of alongwith listed application.

(Y.A.)  Appeal disposed of