2018 SCMR 762
(a) Succession Act (XXXIX of 1925)---
----S. 383---Penal Code (XLV of 1860), S. 198---Succession certificate, revocation of---Succession certificate obtained fraudulently---After the demise of propositus of the parties, his son, respondent was successful in getting a succession certificate in his name by claiming himself to be the sole legal heir of the deceased propositus---Subsequently after culmination of the proceedings in his favour, respondent also submitted an undertaking in the court for submission of details of accounts and also held himself liable/responsible to satisfy the claim of any other legal heir of the deceased if any, in case someone came forward---On getting knowledge of the said fraudulent act of respondent 'propositus' daughters/appellants moved an application under S. 383 of the Succession Act, 1925 for revocation of succession certificate, which was allowed by the Trial Court---High Court set aside the order of revocation of succession certificate; held, that when status and relationship of the parties with the propositus was not denied then every legal heir was entitled to get/receive his/her Shari share to the extent of his/her entitlement in the property moveable/ immovable left by the propositus---Respondent alleged that every legal heir was paid his/her due share, thus, it was for the respondent to have proved his stance of payment of respective shares to all the legal heirs but he had miserably failed to do so---Record established that the original succession certificate was obtained by respondent by practicing fraud with the Court and the appellants---Appellants being poor illiterate ladies had no knowledge of the original succession certificate and after getting knowledge of the same filed application for revocation of the same---Trial Court had rightly revoked the succession certificate issued in favour of the respondent---Respondent had verified a false statement, rather concealed the true facts before the Court regarding actual legal heirs of the deceased propositus and thus apparently had committed fraud with the Court and the parties, therefore, Supreme Court directed the Trial Court to proceed against the respondent under S. 198, P.P.C. as required by S. 372(2) of the Succession Act, 1925---Appeal was allowed accordingly with costs to be borne by the respondent for the entire litigation.
(b) Succession Act (XXXIX of 1925)---
----S. 372---Succession certificate---Scope---Inheritance of a person opened the moment he died and all the legal heirs became owners to the extent of their respective shares there and then---Sanction of inheritance mutation, issuance of succession certificate etc. were procedural matters regulated by the procedural laws just to make the records in order and also for fiscal purposes.
(c) Administration of justice---
----Technicalities---Technicalities should not hamper the administration and dispensation of justice---Whenever it was possible to grant relief under the law, then technicalities in the way of administration of justice should be avoided to the (maximum) possible extent by remaining within the domain of law.
(d) Succession Act (XXXIX of 1925)---
----Ss. 372 & 383---Succession certificate, grant/revocation of---Limitation period---No statutory period of limitation was provided for grant of any succession certificate under S. 372 or its revocation under S. 383 of the Succession Act, 1925, but even then it had to be availed within a reasonable time.
(e) Succession Act (XXXIX of 1925)---
----S. 372---Inheritance---Succession certificate, issuance of---Scope---Not necessary for each and every legal heir to be properly represented and appear before the Court to get a succession certificate---Court on receiving such application had to issue/grant succession certificate in favour of all the legal heirs by considering and determining their respective shares by complying with the procedural requirements of law in such regard. [p. 768] H
Raja Saif ur Rehman Advocate Supreme Court and Ahmad Nawaz Ch. Advocate-on-Record (Absent) for Appellants.
Shafqat Jan, Advocate Supreme Court (for Respondent No. 1) and Tariq Aziz, Advocate Supreme Court/Advocate-on-Record (for respondents Nos. 2 - 4).
Ex parte for Respondents Nos. 5 and 6.
Date of hearing: 6th December, 2017.
2018 SCMR 762
[Supreme Court of Pakistan]
Present: Umar Ata Bandial and Mazhar Alam Khan Miankhel, JJ
ZOHRA BIBI and another---Appellants
Versus
Haji SULTAN MAHMOOD and others---Respondents
Civil Appeal No. 288 of 2013, decided on 6th December, 2017.
(On appeal from the judgment dated 28.12.2012 passed by the High Court of Balochistan in C.M.A. No. 01/2011)
JUDGMENT
MAZHAR ALAM KHAN MIANKHEL, J.---This appeal has arisen out of judgment dated 28.12.2012 of Balochistan High Court whereby appeal of Respondent No. 1 against the judgment/order dated 28.02.2011 of the Senior Civil Judge-II, Quetta was allowed and revocation of succession certificate dated 13.11.2006 was set aside by holding that the application for revocation of succession certificate was incompetently filed by present Appellants.
2. Brief facts of the case emerging out of the record would reveal that after the demise of propositus of the parties Haji Gul Hassan Sheikh, his son Haji Sultan Mehmood, Respondent No.1, herein, was successful in getting a succession certificate dated 13.11.2006 in his name by claiming himself to be the sole legal heir of the deceased propositus. After culmination of the proceedings in his favour, he along with his son Hassan Mehmood as guarantor also submitted an undertaking in the Court for submission of details of accounts and also held themselves jointly and individually liable/responsible to satisfy the claim of any other legal heir of the deceased if any, in case someone comes forward. On getting knowledge of the said fraudulent act of Respondent No. 1, present Appellants moved an application under section 383 of the Succession Act, 1925 for revocation of said succession certificate bearing No. 35/2006 dated 13.11.2006, the same was ultimately allowed by the trial Court vide its judgment order dated 28.02.2011. The Respondent No. 1 herein, feeling himself aggrieved of the order of revocation, questioned the same by way of an appeal before the High Court which was accepted and order of revocation of succession certificate dated 28.02.2011 of the trial Court was set aside, hence, the present appeal.
3. Learned counsel for the parties were heard and the record of the case was perused.
4. Perusal of the record would reveal that the fact that the deceased propositus of the parties had two wives, has never been disputed by any one. Present. Appellants, the two daughters were from Mst. Noor Bibi and Respondents Nos. 1 to 4 herein, were from his other wife namely Mst. Hussain Bibi (both the widows died during the pendency of application for revocation of succession certificate).
Status and relationship of the parties inter se before the Court was never disputed even by the Respondent No. 1 rather he alleged in his reply that according to a family settlement, all the legal heirs had received their share of inheritance and for that reason they were deliberately not joined as party in the application for grant of succession certificate. When status and relationship of the parties with the predecessors in interest is not denied then every legal heir is entitled to get/receive his/her Shari share to the extent of his/her entitlement in the property moveable/immovable left by the predecessor. So, all the legal heirs of deceased Haji Gul Hassan have the right to get to the extent of their respective shares. Before proceeding further we may observe that Respondent No.1 in his reply alleged that every legal heir was paid his/her due share. So it was for the Respondent No.1 to have proved his stance of payment of respective shares to all the legal heirs but he has miserably failed to do so. Mere allegations in the pleadings would never be sufficient to establish the fact alleged in the pleadings. So, we without any hesitation observe that all the legal heirs are entitled to get the respective share in the legacy of propositus.
We at present are only concerned with the amounts shown in the application for succession certificate (original and amended). Under the law, the Appellants herein are entitled to get their Shari shares as per their entitlement and the trial Court while revoking the original certificate of succession has very rightly held as under:
"I heard arguments advanced by the parties in support and against the application and I also went through the record of succession certificate No. 35/2006 along with present application. The objection raised by the contesting respondents were just about time limitation of filing of this application. Other objections were about affidavit of applicant that same are not genuine and further allegation raised that the applicants both female having no knowledge and this application has been filed in connivance of husband of one of the applicants. It is alleged that name of deceased has not been mentioned correctly. The whole objections raised having no weight to discard the legal entitlement of the applicants as legal heirs or protect the wrongful act of respondent No. 1. The respondent badly failed to show that on what account he obtained cash amount of deceased without giving the share of other legal heirs. The question relating whether this application is time barred in this regard it is settled principle of law that no time limit will be counted if the action found to be result of fraud of misrepresentation and in such situation or case it is held by the honorable apex courts that time runs from the date of knowledge. So objection about time limitation is discarded. Previous record fully shows that respondent No. 1 Sultan Mehmood committed fraud by concealment of fact not mentioned in his application and in ex parte evidence that the deceased has also other legal heirs. As sufficient evidence available on record that all legal heirs of deceased Haji Gul Hassan Sheikh are entitled for their shares according to Muhammadan law and Islamic Sharia so I have no hesitation to accept this application for revocation of succession certificate. From the record it is also revealed that surety namely Hassan Mahmood son of Sultan, Mahmood and Muhammad Ismail son of Ghulam Dastagir have also taken back (release) their surety after completion of three years still according to their affidavit filed at the time of filing surety they have taken fully responsibility that in case of fraud and misrepresentation they are liable to pay the amount for which they stood surety and on the basis of same undertaking that are under obligation to pay the amount in case the respondent No. 1 failed to pay the amount to the all legal heirs surviving according to Sharia Fithwa. Murasallah be sent to revenue authority/Tehsildar Quetta for report within four-days along with copy of Fard and affidavit of surety available on the record for attachment of property of sureties till recovery of amount or otherwise for recovery of process of sale of attached property according to law. The applicants further directed to file Sharia Fithwa the same must be verified and appear in person while applying for succession certificate. Application disposed off in this manner".
5. Perusal of the impugned judgment would reflect that the same instead of dealing with the substantial question of law, is based on mere technicalities. The facts which prevailed with the High Court were (i) the affidavits of Respondent No. 1 and his witnesses, (ii) no response by the Appellants for more than a period of 3-1/2 years inspite of publication in a newspaper of wide circulation (iii) the amount in question was withdrawn by the Respondent No. 1 long before and fourthly the liability of the sureties was also discharged after a lapse of three years and for the above reasons asked the Appellants to approach the civil Court for redressal of their grievances, if any.
The cardinal principle of Mohammadan law is that the inheritance of a person opens the moment he dies and all the legal heirs become owners to the extent of their respective shares there and then by the dint of settled law. Sanction of inheritance mutation, issuance of succession certificate etc. are the procedural matters regulated by the procedural laws just to make the records in order and also for fiscal purposes. Similarly law of limitation provides a specific period to avail a remedy provided wider the law by way of filing suit, preferring appeal and making any application and if the same is filed/preferred or made beyond the prescribed period of time as provided in the schedule, subject to certain provisions of law, has to be dismissed but said dismissal cannot take away the right of that person as was held by this Court in the case of Pervaiz Akhtar and another v. The Additional District Judge, Rawalpindi and 4 others (PLD 1990 SC 681). It is also settled law of the land that technicalities should not hamper the administration and dispensation of justice. Whenever it is possible to grant relief under the law, then technicalities in the way of administration of justice should be avoided to the possible extent by remaining within the domain of law. When we look into the facts and circumstances of the present case before us, it becomes clear that no statutory period of limitation is provided for grant of any succession certificate under section 372 or its revocation under section 383 of the Succession Act, 1925. When no further intricate question of law of inheritance was there to be resolved by any competent Court of law, proceedings under the Succession Act, 1925 were very much competent irrespective of efflux of time.
It is established on the record that the original certificate was obtained by Respondent No. 1 by practicing fraud with the Court and the Appellants on 13.11.2006 and the Appellants asked for revocation of said certificate after a period of more than 3-1/2 years when they got knowledge of the same. As discussed above that no statutory time frame has been provided under Limitation Act, 1908 for asking for issuance of or revocation of succession certificate but even then it has to be availed within a reasonable time. If at all we put any embargo/clog of limitation then at the most that can be dealt with under Article 181 of Limitation Act, 1908 which provides a period of three years to ask for any such relief. Settled law of the land in such like situations is that the period of limitation would start running from the date of knowledge. While looking in this perspective, in absence of any evidence to the contrary, the presumption would be that the Appellants being poor illiterate ladies had no knowledge of the original succession certificate and after getting knowledge of the same filed application for revocation of succession certificate.
6. The application so filed by the Appellants for revocation of the succession certificate was also held to have been incompetently filed as the application was only signed by the counsel and the counsel was also authorized by Appellant No. 1 i.e. Mst. Zohra Bibi only and Mst. Samina Bibi had not signed the power of attorney of the counsel. Again this view of the High Court is based on hyper technicality especially in the facts and circumstances of the case in hand. The established law is that Advocate/Pleader can sign the pleadings on behalf of the party and he is normally authorized by the party while signing the power of attorney in this behalf and the provisions of Order III of the C.P.C. in this regard are very much clear. The record of the proceedings clarifies the fact that the Appellant No. 1 was properly represented as she had signed the power of attorney of the counsel and let's presume for a while that Respondent No. 2 was not properly represented, whether this alone would disentitle her to get her share in the legacy left by her father. Answer to this question would be a simple "No". Under the law it is not necessary that each and every legal heir should be properly represented and appear before the Court to get a succession certificate. The Court on receiving such application has to issue/grant succession certificate in favour of all the legal heirs by considering and determining their respective shares by complying with the procedural requirements of law in this regard. So, the decision of High Court in this regard is sheer violation of the law and cannot be maintained.
7. Yet another aspect of the case, as was held by the High Court, would also require our attention that after the lapse of such a long time the better course for the Appellants was to approach the Civil Court. Yes; this approach of the High Court would have been a valid one if there had some dispute regarding status and relationship of the parties inter se. But in this case, there is no such dispute. There are two distinct groups of the legal heirs of the deceased. Appellants being the legal heirs from one wife and the Respondents from the other wife. Their complicity can be adjudged from the fact that Respondents Nos. 2 to 4 the real sisters of Respondent No. 1 have joined hands with Respondent No. 1 by alleging to have received their share by supporting the appeal of Respondent No. 1 before the High Court and the two poor ladies from the other wife of propositus i.e. the Appellants were left without any relief who also happen to be their step sisters. (By keeping in mind the conduct of Respondent No. 1, we also doubt the satisfaction of claim of Respondents Nos. 2 to 4). So, we in the peculiar circumstances of the case cannot send the parties especially the two Appellants for yet another round of litigation for a matter which require no further adjudication except the discharge of liability by Respondent No. 1 as he along with his son had given an undertaking to satisfy the claims of any other legal heir, if came forward. So, we endorse the procedure adopted by the trial court for the recovery of said amount with the direction that the needful be done within a period of two months positively after the receipt of this judgment and a compliance report be also forwarded to the Additional Registrar (Judicial) of this Court.
8. Since it has been established on the record that Respondent No.1 had verified a false statement, rather concealed the true facts before the Court regarding actual legal heirs of the deceased propositus and thus apparently has committed fraud with the Court and the parties so we cannot shut our eyes to this very fact and we, therefore, direct the trial Court to proceed against the Respondent No. 1 under section 198, P.P.C. as required by section 372(2) of the Succession Act, 1925.
9. In view of the above discussion this appeal is allowed in above terms with costs to be borne by Respondent No. 1 of the entire litigation for the reasons mentioned above.
MWA/Z-3/SC Appeal allowed.
[4/3, 9:18 AM] mirzazahidmahmoodadv: 2008 M L D 1416
[Lahore]
Before Kazim Ali Malik, J
MUHAMMAD HANIF---Petitioner
Versus
THE STATE---Respondent
Criminal Miscellaneous No. 1032-M of 2008, heard on 4th June, 2008.
(a) Criminal Procedure Code (V of 1898)---
----S.516-A---Case property-,--Vehicle used by offender---Scope---If a vehicle is used by offender for going to or running from a place where offence was committed by him, the vehicle so used by him cannot be said to have been used for commission of that offence and the vehicle cannot be taken into possession by police as `case property'.
Syed Raza Shah v. The State 1971 PCr.LJ 19; Mst. Khudija Begum v. Sessions Judge, Sahiwal 1986 PCr.LJ 945; Syed Bahwal Shah v. The Crown PLD 1951 Baghdadul Jadeed 57 and Sheraz Elahi v. The State 1994 PCr.LJ 1935 rel.
(b) Penal Code (XLV of 1860)---
----Ss.302/324/148/149/109---Criminal Procedure Code (V of 1898), Ss.516-A & 561-A---Case property---Vehicle used by accused---Petitioner was owner of vehicle in which accused persons reached at place of occurrence and committed the offence---During investigation police took the vehicle in custody as `case property'---Petitioner was the only person who requested for temporary custody of his owned car---Area Magistrate declined request of petitioner without assigning any reason and Lower Appellate Court though accepted claim of petitioner over the disputed car but postponed his request for its Superdari till recording of evidence---Validity---Petitioner was not an accused person .in the case and according to F.I.R. accused persons used the car for reaching place of occurrence, thus there was no legal justification to take into possession the car---No reason was available to allow local police to keep the car in their custody, particularly when it had not been used in commission of any offence---Both the courts below failed to follow the law on the subject laid down by High Court and Supreme Court---High Court in exercise of inherent powers under S.561-A, Cr.P.C., declared orders passed by both the courts below passed without lawful authority and of no legal effect---High Court directed the authorities to hand over the car on superdari to petitioner.
Imtiaz Hussain Khan for Petitioner.
Ch. Shahbaz Ahmad Dhillon, A.A.-G for Respondent.
Date of hearing: 4th June, 2008.
JUDGMENT
KAZIM ALI MALIK, J.---One Khuda Bakhsh got registered a case F.I.R. No.360 of 2007, dated 5-12-2007 under sections 302/324/ 148/149/109, P.P.C., at Police Station Barana, District Jhang with an allegation that the accused persons nominated in the F.I.R. reached the spot in a car No.IDH No.7005 and committed the crime.
2. The Investigator seized the above said car. Muhammad Hanif, petitioner herein, made an application before the Area Magistrate for temporary custody of the car claiming to be its owner, which was dismissed vide few worded order, dated 15-1-2008 with an observation that the car was a piece of evidence in a case exclusively triable by the Court of Session. The petitioner called in question legality and correctness of the above said order of the Area Magistrate through Revision petition, which was made over to a learned Additional Sessions Judge, Chaninot, who allowed the request for Superdari of the car subject to furnishing a bond in the sum of Rs.5,00,000 with one surety in the like amount to the satisfaction of Trial Court after recording of prosecution evidence. Feeling aggrieved the petitioner has invoked the inherent jurisdiction of this Court and called in question the validity of the order of learned Additional Sessions Judge, whereby he postponed the request for temporary custody of the seized car till recording of prosecution evidence.
3. The learned Law Officer present on Court's call attempted to argue that the learned Additional Sessions Judge rightly refused to hand over the vehicle to its owner as an offence of murder and attempted murder had been committed in respect of the vehicle.
4. I have heard the learned counsel for petitioner and have gone through the record.
5. I am unable to agree with the contention of learned Law Officer for the simple reason that no offence, whatsoever, had been committed with regard to the vehicle seized by the police. The only allegation set up in the F.I.R. was that the accused persons reached the spot at the relevant time in the said car. The petitioner is owner of the vehicle. There is/was no rival claimant of the car. The petitioner established and proved his ownership over the car by producing its Registration Book in his name. The learned Additional Sessions Judge also observed after examining the original Registration Book of the car that it stood registered in the name of Muhammad Hanif, petitioner. To the hard luck of the petitioner the car undisputedly owned by him is still with the local police. At the cost of repetition it is note worthy that the prosecution case set up in the F.I.R. of murder case, in brief, was that the accused persons used the car for reaching the place of occurrence. It is an established principle of law that if a vehicle is used by an offender for going to or running from a place where the offence is committed by him the vehicle so used by him; cannot be said to have been used for the commission of that offence and the vehicle cannot be taken into possession by the police as case property. This view is supported by case law laid down in Syed Raza Shah v. The State (1971 PCr.LJ 19), Mst. Khudija Begum v. Sessions Judge, Sahiwal (1986 PCr.LJ 945), Syed Bahwal Shah v. The Crown (PLD 1951 Baghdadul Jadeed 57) and Sheraz Elahi v. The State (1994 PCr.LJ 1935).
6. Undisputedly, the petitioner is not an accused in the above said murder case. It was alleged in the said F.I.R. that the accused persons named therein had used the car for reaching the place of occurrence. I am, therefore, of the considered view that there was no legal justification to take into possession the car in the above said murder case.
7. The petitioner was the only person, who requested for temporary custody of his owned car. The Area Magistrate declined his request without assigning cogent reasons. The learned Additional Sessions Judge accepted the claim of petitioner over the 'disputed car, but postponed his request for its Superdari till recording of evidence without taking into consideration the case-law, referred to above. In the circumstances I see no reason to allow the local police to keep the car in their custody, particularly when it had not been used in commission of any offence. I, therefore, feel no difficulty in concluding that the Courts below failed to follow the law on the subject laid down by this Court and the apex Court.
8. For what has been stated above, the impugned orders passed by the Area Magistrate and the Additional Sessions Judge are declared to have been passed without lawful authority and of no legal effect. Consequently, this petition is allowed. The impugned orders are set aside with a direction to the Area Magistrate to ensure Superdari of the car to the petitioner subject to furnishing of a bond in the sum of Rs.1,00,000 to his satisfaction.
M.H./M-187/L Petition allowed.
[4/3, 9:18 AM] mirzazahidmahmoodadv: 2021 C L D 107
[Lahore]
Before Amin-ud-Din Khan, J
FAMOUS BRANDS (PRIVATE) LIMITED---Appellant
Versus
SAMSONITE IP HOLDINGS S.a.r.l. and others---Respondents
F.A. O. No. 17802 of 2019, decided on 28th March, 2019.
Trade Marks Ordinance (XIX of 2001)---
----S. 86---Civil Procedure Code (V of 1908), O. XXXIX, Rr. 1 & 2---Use of trademark---Interim injunction, sought to restrain use and advertisement of trademarks---Appellant/plaintiff assailed the dismissal of its application for grant of temporary injunction by the Presiding Officer, Intellectual Property Tribunal---Held, that the Appellant did not deny that the trade mark in question was the brand of respondents---Appellant could contest and press all its rights before the High Court where the suit filed by respondent against the present appellant was pending adjudication---Appellant had failed to make out a case for grant of temporary injunction while showing the necessary ingredients i.e. prima facie arguable case, balance of convenience and irreparable loss in its favour---No reason existed to disagree with the findings recorded by the Presiding Officer, Intellectual Property Tribunal---Appeal was dismissed.
Italfarmaco S.P.A. v. Himont Pharmaceuticals (Pvt.) Ltd. and another 2017 CLD 1382; Nawaman Ahmed v. Adjudicating Officer and 2 others 2012 CLD 1893; Messrs Shaukat Soap and Ghee Industries (Pvt.) Ltd. v. Messrs Shaukat Brothers Soap Manufacturers (Pvt.) Ltd. 2016 CLD 1036; Kamran Taj v. Muhammad Shahzad Jamil and 2 others 2015 CLD 2015; Pioneer Cement Limited through Company Secretary v. FECTO Cement Limited through Chief Executive Officer and 3 others 2013 CLD 201 and Messrs H&B General Trading Company through Director v. Messrs International Marketing Company through Proprietor and 2 others 2009 CLD 1028 ref.
Muhammad Shahzad Shaukat and Ali Mohsin Qazalbash for Appellant.
Ms. Asma Hamid assisted by Ch. Faisal Nawaz and Wajahat Ali Mian for Respondents.
ORDER
AMIN-UD-DIN KHAN, J.---Through this appeal filed under Order XLII, Rule 1(r) of the C.P.C. the appellant; who is plaintiff, has challenged the order dated 16.01.2019 passed by the learned Presiding Officer, Intellectual Property Tribunal, Lahore, whereby an application for grant of temporary injunction, under Order XXXIX, Rules 1 and 2 of the C.P.C. was dismissed.
2. Yesterday, when the case was fixed for preliminary hearing, the learned counsel for the appellant was not available. The learned counsel for the respondents appeared with the permission of the Court at preliminary hearing stage, filed power of attorney and raised two objections that the appeal is barred by time and that the notice sent to the respondents in compliance with the Order XLIII, Rule 3 of the C.P.C. does not contain the copy of grounds of appeal, therefore, notice was defective one.
3. Mr. Ali Mohsin Qazalbash Advocate appeared along with Muhammad Shahzad Shaukat Advocate and stated that he is signatory of the notice sent to the respondents under Order XLIII, Rule 3 of the C.P.C. and the said notice mentioning the memo of appeal is attached and he confirms that memo of appeal was attached with the notice.
4. So far as the objection of learned counsel for the respondents with regard to the limitation is concerned; she stated that as order is dated 16.01.2019 and the respondents applied for issuance of certified copy, which were provided within a week, therefore, she has the impression that the appeal is barred by time when it was filed in this court on 26.03.2019.
5. The record was checked in the presence of learned counsel for the parties. As per certified copy of the impugned order attached with this appeal, the appellant moved an application for issuance of certified copy of the impugned order on 17.01.2019, which was prepared and delivered on 27.02.2019 and the appeal was filed on 26.03.2019. Therefore, it is within the prescribed period of limitation. Learned counsel for the respondents states that in this eventuality she will not press the point of limitation and further when the statement made by the learned counsel for the appellant that the grounds of appeal were attached with the notice, she will also not press the other objection.
6. I have heard the learned counsel for the parties at length.
7. As the respondents appeared to contest the appeal at preliminary stage, therefore, both the parties were heard at some length. Learned counsel for the appellant argues that there is no denial that Samsonite is the brand of respondents.
8. It will be appropriate that the prayer of suit as well as prayer of the application moved under Order XXXIX, Rules 1 and 2 of the C.P.C. be reproduced. The prayer of the suit is as fellows:-
"It is respectfully prayed that this honourable Court may be pleased to pass a decree against the Defendants and and/or their chief executives, directors, secretaries, principal officer's, managers, shareholders, employees, servants, distributors, men, agents, stockists, retailers or dealers (hereinafter jointly referred to as the Defendants) in the following terms:-
a) pass a decree for declaration that the Plaintiff is the Proprietor and prior user in its own right of the trademark SAMSONITE, and AMERICAN TOURISTER, used for retail stores on account of prior adoption and actual prior use of SAMSONITE for retail stores in class 35 for luggage, bags, suit cases, accessories etc., in Pakistan since year 2005 and AMERICAN TOURISTER thereafter for past 10 years, and that the Plaintiff is entitled under law to conduct its business of running retail stores for luggage, bags, suit cases, accessories etc., using SAMSONITE, and AMERICAN TOURISTER;
b) pass a decree for permanent injunction restraining the Defendants perpetually from using and advertising in any manner and in any media, SAMSONITE, alone or as house of Samsonite and AMERICAN TOURISTER for retail stores for luggage, bags, suit cases, accessories etc., stores within stores or retail display sections within stores, shopping malls, either themselves in Pakistan or through a franchise or distributor or licensee, agent in relation to luggage, bags, suit cases, accessories etc, of all types and related products or any limitation of Plaintiff's proprietary trademarks SAMSONITE and AMERICAN TOURISTER in Pakistan, such as house of Samsonite and from committing acts of Unfair Competition in terms of section 67 of the Trade Marks Ordinance, 2001 and from passing off Defendants retail stores, services and business by using SAMSONITE and AMERICAN TOURISTER as and for that of the Plaintiff.
c) pass a decree permanently restraining the Defendants from operating any Shops/Stores Outlets under the name and style of SAMSONITE or house of Samsonite and AMERICAN TOURISTER in Pakistan;
d) a further decree of permanent injunction restraining the Defendants from causing any damage or injury to the reputation and goodwill enjoyed by the Plaintiff in its trademarks SAMSONITE and AMERICAN TOURISTER for retail stores in any manner whatsoever;
e) a further decree of permanent injunction restraining the Defendants from communicating to public through any electronic, social, print, audio or visual media any notices, remarks or statements regarding use of trademark, SAMSONITE and AMERICAN TOURISTER by the Plaintiff for retail stores in Pakistan;
f) a further money decree against the Defendants for payment of Rs.500,000,000/- (Rupees five hundred million only) to Plaintiffs as damages on account of partial compensation for the loss and damage to the goodwill and reputation of the Plaintiffs;
h) costs of the suit may also be awarded; and
i) grant any other relief that this honourable Court may deem appropriate."
The prayer made in the application under Order XXXIX, Rules 1 and 2 of the C.P.C. is as follows:
"It is therefore, respectfully prayed that during the pendency of the titled suit, this honourable Court may be pleased to issue a temporary injunction restraining the Defendants from using in any manner trademark SAMSONITE alone or as House of Samsonite, and AMERICAN TOURISTER, for retail stores for luggage, bags, suit cases, accessories etc., or for store within stores or retail display sections within stores, shopping malls and restrained from advertising trademarks SAMSONITE and AMERICAN TOURISTER in Pakistan in any manner in any media for retail stores.
The Plaintiff also prays for an ad-interim injunction till the disposal of this application."
9. In the Court it was admitted that the brand of Samsonite is of the respondents and appellant is the sole distributor and the appellant set up independent Samsonite Stores, therefore, the suit was filed that the exclusive store is the idea of the plaintiff/appellant. States that for a long time they after set up the independent Samsonite Stores have a right that the injunctive order be granted on the basis of acquiescence on the part of respondents. Argues that the learned trial court fell in error while refusing the grant of temporary injunction on the ground that the damages have been claimed by the appellant, therefore, no case of grant of temporary injunction.
10. On the other hand, learned counsel for the respondents argues that no agreement in writing or distributorship has been provided. That the appellant was seller of the products of the respondents. That under Clause 18 of the Trade Mark Classification of Goods and Services the respondents are registered and under Clause 35 of the Trade Mark Classification of Goods and Services the proceedings are pending, which are being resisted by the appellant. That under sections 86(c) and 76 of the Trade Mark Ordinance, 2001 protection of use is with the respondents and the respondents Nos.1 and 2 appointed the respondent No.3 as distributor in the year 2016, therefore, the suit was filed by the appellant in the Sindh High Court and a suit bearing No.2040 of 2017 was flied by the respondents before the High Court of Sindh at Karachi and the application for grant of temporary injunction was allowed vide order dated 24.07.2018. States that the suit for declaration was filed in the civil court by the present appellant at Lahore, the suit was dismissed and the appeal there against was also dismissed. A suit for damages was also filed by the appellant, which was dismissed for non-prosecution. Now it has been restored. States that the instant suit was filed on 08.02.2018. While relying upon "Italfarmaco S.P.A. v. Himont Pharmaceuticals (Pvt.) Ltd. and another" (2017 CLD 1382) states that this suit is not competent here, it be sera to the High Court of Sindh at Karachi. States that if an injunctive order is granted, the respondents will suffer an irreparable loss and damages, as prima facie no case has been made out by the appellant. Further states that on the basis of their distributions and claim lodged through the suit as well as the application is not maintainable. While relying upon "Nawaman Ahmed v. Adjudicating Officer and 2 others" (2012 CLD 1893), "Messrs Shaukat Soap and Ghee Industries (Pvt.) Ltd. v. Messrs Shaukat Brothers Soap Manufacturers (Pvt.) Ltd." (2016 CLD 1036), "Kamran Taj v. Muhammad Shahzad Jamil and 2 others" (2015 CLD 2015), "Pioneer Cement Limited through Company Secretary v. FECTO Cement Limited through Chief Executive Officer and 3 others" (2013 CLD 201) and "Messrs H&B General Trading Company through Director v. Messrs International Marketing Company through Proprietor and 2 others" (2009 CLD 1028) prays the dismissal of the appeal.
11. I have noticed that there is an order passed by the court of competent jurisdiction i.e. High Court of Sindh at Karachi, the operative part of the order dated 24.07.2018 is as under:-
"I have come to the conclusion that the Plaintiffs have already made out a prima facie case of infringement under section 86 of the Trade Marks Ordinance, 2001, as the defendant even after submitting an undertaking before the Court is still using the identical signage in the name of "Samsonite" for which there is not consent of the owner/proprietor of the trademark/trade name, in relation to goods and services falling within Class 18 and 35 of the Fourth Schedule of Trade Mark Rules, 2004, read with Rules, 11, 71 and 88 thereof, the injunction application bearing C.M.A. No. 12935/2017 is granted and the defendant and its officers, servants and agents are restrained from infringing the Samsonite Mark and or other marks of the plaintiffs and while allowing injunction application, I direct the Defendant to immediately remove the signage being used by them in their outlets within 30 days from the date of this order and shall file a proper affidavit to that effect in the office duly executed by any of the Directors and or owners of the Defendant company."
The suit was filed in the High Court of Sindh in the year 2017 and the present appellant was contenting the said suit being defendant in that suit. The filing of suit subject matter of this appeal on 08.02.2018. shows that after filing of suit before the High-Court of Sindh at Karachi by the respondents and further the injunctive order is passed in favour of the respondents, the instant suit was filed by the present appellant. The appellant can contest and press all its right's before the said Court and while deciding the instant application learned Presiding Officer, Intellectual Property Tribunal, Lahore has passed the order in accordance with law. When the plaintiff/appellant failed to make out a case for grant of temporary injunction while showing the necessary ingredients i.e. prima facie arguable case, balance of convenience and irreparable loss in its favour, this Court has no reason to disagree with the findings recorded by the learned Presiding Officer, Intellectual Property, Lahore in the light of case law referred to by the learned counsel for the respondents. Consequently, this appeal having no substance stands dismissed in limine.
SA/F-18/L Appeal dismisse.
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