Summary: S.42,54 SRA,O.XXXIX,R-1,2 CPC:Ingredients for grant of temporary injunction

Summary: (a) Constitution of Pakistan, 1973 ---- Art. 199; Civil Procedure Code (V of 1908) ---- O. XXXIX, Rr. 1 & 2; O. XLIII, R.1(r) Constitutional petition --- Maintainability --- Interlocutory orders --- Refusal of ad interim injunction --- Scope and bar under constitutional jurisdiction --- Petitioner challenged concurrent orders of civil and appellate courts whereby request for ad interim injunction was declined --- Held, constitutional jurisdiction under Art.199 cannot be invoked to assail interlocutory orders which are not final or conclusive in nature --- Application under O. XXXIX Rr. 1 & 2 CPC for temporary injunction still pending before trial court --- Refusal of ad interim relief does not preclude adjudication on merits --- High Court observed that allowing constitutional petitions against such interim refusals would open floodgates and undermine hierarchy of legal remedies --- Petition dismissed in limine for being premature and not maintainable. Cited Cases: • Rashid Baig v. Muhammad Mansha 2024 SCMR 1385 • Muslim Commercial Bank Ltd. v. Muhammad Anwar Mandokhel 2024 SCMR 298 (b) Constitution of Pakistan, 1973 ---- Art. 199(1)(c) Extraordinary constitutional jurisdiction --- Scope and limitations --- Where alternate efficacious remedy exists or trial is pending, High Court must exercise restraint --- Held, High Court’s power under Art.199 is supervisory and not appellate in nature --- Interim orders passed with lawful discretion by subordinate courts are not to be interfered with unless shown to be passed without jurisdiction or involving gross miscarriage of justice --- Petition failed to establish such infirmities --- Expression “adequate” remedy under Art.199 interpreted in line with dictionary and judicial meanings as legally sufficient and minimally satisfactory --- Petition dismissed accordingly. Cited Cases: • Special Secretary-II (Law & Order) v. Fayyaz Dawar 2023 SCMR 1442 • Govt. of Khyber Pakhtunkhwa v. Intizar Ali 2022 SCMR 472 • Province of Punjab v. Yasir Majeed Sheikh 2021 SCMR 624 • Messrs Fateh Yarn Pvt. Ltd. v. CIR Faisalabad 2021 SCMR 1133 (c) Easements Act (V of 1882); Constitution of Pakistan, 1973 ---- Art. 9 Easement rights v. Ownership rights --- Registered sale deed excluded ownership of rooftop --- Petitioner claimed easement by necessity to prevent construction on rooftop --- Held, no easement rights established; right to easement cannot override ownership rights expressly excluded in sale deed --- Court found petitioner's claim amounted to interference with lawful property rights rather than enforcement of any easement --- Fundamental rights under Art. 9 of Constitution invoked by petitioner (right to quality life) found inapplicable where no legal entitlement to rooftop existed.----- "Invoking the constitutional jurisdiction of this Court cannot be termed to be an "adequate remedy" to challenge grant or refusal of ad interim injunction being not final and conclusive in nature."

Summary: (a) Trade Marks Ordinance (XIX of 2001)—S. 40—Civil Procedure Code (V of 1908), O. XXXIX, Rr. 1 & 2—Interim injunction—Trademark infringement—Prima facie case—Appellant was registered proprietor of trademark ‘Kohinoor Fabrics’ under Class-35—Respondent operating business under the name ‘Kohinoor Fair Price Shop’—Held, Trial Court dismissed appellant’s injunction application without properly examining provisions of S.40 of Trade Marks Ordinance, 2001—Trial Court relied on precedent under repealed Trade Marks Act, 1940, without considering statutory test for infringement under 2001 Ordinance—Test includes deceptive similarity, use in course of trade, dissimilar goods, and detriment to distinctive character—Mere commonality of generic word ‘Kohinoor’ insufficient to decide claim without complete inquiry—Impugned order set aside—Matter remanded for fresh decision on merits. (b) Trade Marks—Infringement—Statutory test—Principles—Conditions for establishing infringement under S. 40(4), Trade Marks Ordinance, 2001, require: (i) use of mark in course of trade; (ii) deceptive similarity or identity; (iii) goods/services not similar to those covered by registration; (iv) trademark having reputation in Pakistan; (v) use without due cause; and (vi) use taking unfair advantage of or being detrimental to the distinctive character—Held, burden lies on trademark proprietor to establish these elements to justify interim or permanent relief—Trial Court’s failure to apply these standards constituted material irregularity. (c) Trade Marks—Prior user vs. registered proprietor—Scope—Respondent’s claim to be prior user of ‘Kohinoor’ not sufficient to defeat exclusive rights of appellant under registered trademark—Held, prior use of a common word cannot override statutory rights conferred upon a registered proprietor—Reliance placed on Pioneer Cement Ltd. v. Fecto Cement Ltd. 2013 CLD 201 and Messrs Tabaq Restaurant v. Messrs Tabaq Restaurant 1987 SCMR 1090—Doctrine of passing off distinguished from statutory infringement—Registration creates statutory presumption of ownership and exclusivity. (d) Trade Marks—Generic words—Effect—Use of generic or public juris terms such as ‘Kohinoor’—Held, protection may still be available where overall mark or its presentation has distinctiveness or acquired reputation—Phonetic or visual similarity must be assessed with reference to entire mark including logo, layout, and trade dress—Case law reviewed including Novartis AG v. Nabiqasim Industries 2015 CLD 1162, Rupali Polyester Ltd. v. Baba China Builders 2014 CLD 1601—Prima facie similarity or confusion to be evaluated after evidence. Disposition: Appeal allowed; case remanded for decision afresh.

Summary: (a) Specific Relief Act (I of 1877) ----Suit for specific performance—Interim injunction—Agreement to sell disputed—Requirement of prima facie case Petitioner sought interim relief in suit for specific performance based on alleged agreement to sell—Respondents denied execution of agreement and claimed petitioner was a tenant whose cheques for rent were dishonoured—Trial and appellate courts concurrently declined interim relief—Held, where authenticity of agreement is in dispute and execution/payment of consideration is not admitted, petitioner must first establish a strong prima facie case by cogent evidence—Absent such proof, no interim injunction can be granted to protect possession under disputed title. Cited Cases: • Faiz ur Rehman Alvi v. Addl. District Judge 2020 YLR 2143 • Mst. Rasheed Bibi v. Muhammad Arshad 2020 MLD 1875 • Rao Abdul Rehman v. Muhammad Afzal 2023 SCMR 815 (b) Civil Procedure—Injunction—Principles for grant ----Interim relief—Possession without established title—Balance of convenience—Irreparable loss Petitioner, in possession of property, claimed ownership via an agreement to sell—Respondents asserted tenancy relationship supported by a lease document—Petitioner admitted tenancy in related proceedings—Held, mere possession does not entitle a party to interim injunction unless legal title or enforceable right is established—Ingredients of prima facie case, balance of convenience, and irreparable loss must co-exist for interim relief—Absent these, possession cannot be protected by injunction. Cited Cases: • Muhammad Ali v. Mahnga Khan 2004 SCMR 1111 • Muhammad Ajmal Khan v. Mst. Iqbal Mai PLJ 2018 Lahore 907 • Muhammad Ahmad Farooq v. Province of Punjab 2018 MLD 959 (c) Qanun-e-Shahadat Order, 1984 ----Art. 115—Tenant estoppel—Denial of landlord's title Petitioner, previously admitted to be tenant under registered lease, later claimed ownership through sale agreement—Held, under Art.115 of Qanun-e-Shahadat, tenant is estopped from denying landlord’s title or claiming superior right during tenancy—Principle “once a tenant, always a tenant” applicable—Petitioner cannot seek interim relief against landlord while simultaneously denying tenancy and asserting ownership without proof. Cited Cases: • Hakim Khushi Muhammad v. Mst. Talaat Rana 2010 CLC 819 • Naveed Akhtar v. Special Judge (Rent), Sialkot 2021 CLC 952 • Mrs. Azra Riaz v. Addl. District Judge 2021 CLC 623 (d) Civil Procedure Code (V of 1908) ----S. 94 & O. XXXIX Rr. 1 & 2—Interim injunction—Effect of lis pendens Petitioner’s apprehension of alienation of property during suit—Court held that even if property is transferred, rights of petitioner would remain protected under doctrine of lis pendens—Hence, mere fear of alienation without established legal right does not justify grant of injunction—Held, refusal of temporary injunction was proper exercise of discretion. Disposition: Writ petition dismissed. Observations made are tentative and shall not affect the merits of the pending civil suit.------- ''Where to establish a claim, evidence is required to be recorded, prima facie case cannot be assumed in favour of petitioner especially when he is yet to establish his right to hold possession of suit property or be transferred its ownership, which already vests in respondents, who are owners of the property, instead of petitioner, who is stated to be a tenant of respondents and his claim is based on mere agreement to sell which has been denied by the other side. Agreement to sell does not create any title but gives only a right to petitioner to claim specific performance of contract, if he can prove the said agreement as valid by refuting the claim of respondents that it was a forged and fabricated document. Besides, balance of convenience tilts in favour of respondents, owners of the property and not the petitioner, holder of disputed agreement to sell, as by grant of interim relief the respondents are likely to suffer more than what the petitioner would suffer if interim relief is refused.''

Summary: (a) Civil Procedure Code (V of 1908): ----S. 115 Revisional jurisdiction—Scope and limitations—Petitioners challenged the selection process for the Balochistan cricket team, alleging mala fide inclusion of ineligible players—Trial Court granted interim relief by restraining certain defendants from participating but refused to halt the entire tournament—Appellate Court upheld the order—Petitioners sought revision under Section 115, C.P.C.—Held, revisional jurisdiction is primarily meant to correct jurisdictional errors, not discretionary decisions of subordinate courts unless exercised arbitrarily or fancifully—Findings of the lower courts were based on sound legal principles and factual considerations—No jurisdictional defect was found warranting interference—Reliance placed on PLD 1970 SC 139. (b) Civil Procedure Code (V of 1908): ----O. XXXIX, Rr. 1 & 2 Grant of interim injunction—Balance of convenience—Irreparable loss—Plaintiffs sought an injunction to suspend matches of the Balochistan team in the Quaid-e-Azam Trophy until the final decision of the suit—Held, an injunction affecting the entire tournament, involving multiple teams nationwide, would cause greater inconvenience—Trial Court rightly restrained only the allegedly ineligible players (defendants Nos. 2 to 7) from participation while allowing the rest of the team to proceed—Balance of convenience and irreparable loss considerations were properly evaluated—Orders of the lower courts were just and appropriate in the circumstances. (c) Civil Procedure Code (V of 1908): ----O. VII, R. 7 Relief not specifically claimed—Power of court to grant just relief—Respondents contended that the relief granted (restraining certain players) was not explicitly sought in the application—Held, courts have the authority under Order VII, Rule 7, C.P.C. to grant relief not specifically prayed for if it aligns with the justice of the case—The Supreme Court in PLD 1968 SC 1 affirmed that courts may grant consequential relief necessary to resolve the dispute—Lower courts properly exercised discretion in modifying the injunction while ensuring fair play in selection. (d) Disposition: Revisions dismissed in limine—Held, trial and appellate courts exercised jurisdiction appropriately—Findings were not arbitrary or fanciful—No interference warranted in revisional jurisdiction.

Summary: (a) Civil Procedure Code (V of 1908) – O. XXXIX, Rr. 1 & 2 – Specific Relief Act (I of 1877) – Ss. 21 & 56(f): Interim injunction – Contract for sale of goods – Irrevocable letter of credit – Non-payment by buyer – Effect – Plaintiff entered into a contract for purchase of 500 Metric Tons of Palm Kernel Acid Oil from defendant No. 1 on 01.02.2002, with payment to be made through a 100% confirmed irrevocable letter of credit (L/C) at sight – Plaintiff failed to make payment in terms of the L/C, leading to cancellation of the contract – Defendant No. 1 subsequently sold the consignment to defendant No. 4, who made full payment and obtained original bills of lading – Plaintiff sought an interim injunction to restrain defendants from delivering the consignment to defendant No. 4 and claimed entitlement to delivery based on the original contract – Held, plaintiff had no prima facie case as they failed to pay the contractual price and did not possess original bills of lading, which are essential documents of title – Mere filing of Into Bond Bills of Entry on the basis of photocopies did not confer ownership rights – Contract for sale of goods is not routinely capable of specific performance under S. 21 of the Specific Relief Act – Where permanent injunction is barred under S. 56(f), an interim injunction cannot be granted – Plaintiff had already quantified damages in monetary terms, making compensation an adequate remedy – Balance of convenience lay in favor of defendant No. 4, who had lawfully acquired the consignment – Application for injunction dismissed, earlier restraint order vacated. ----Cited Cases: • Oil & Gas Development Corporation v. Shujjahuddin (Pvt.) Ltd. PLD 1970 Karachi 332 • V.N. Lakhani & Co. v. Government of Pakistan PLD 1975 Karachi 781 • Sahaf Corporation (Pvt.) Ltd. v. K.P.T 1989 MLD 616 • Petro Commodities v. Rice Export Corporation of Pakistan PLD 1998 Karachi 1 • Al Farooq Shipping Company (Pvt.) Ltd. v. Vasa Shipping Ltd. 1980 CLC 1228 • Misbahul Hasan v. Director General of Supplies 1994 CLC 1129 • Dada Steel Ltd. v. Metal Exports 1985 CLC 1814 ----Disposition: Injunction application dismissed; previous restraint order vacated.

Summary: (a) Civil Procedure Code (V of 1908): ----O. XXXIX, Rr. 1, 3 & 4 read with O. XLIII, R. 1(r) Appeal against injunction order---Maintainability---Scope of Rule 4, Order XXXIX, C.P.C.---District Judge issued an ad interim injunction restraining the Government from ejecting the plaintiffs and subsequently confirmed the injunction after hearing both parties---Contention raised by the respondents that an appeal was not competent as the confirmation of the injunction order was neither under Rule 1 nor under Rule 4 of Order XXXIX, C.P.C.---Held, that an order confirming an injunction after notice to the opposite party falls under Rule 1 or 2, rather than Rule 4, and is therefore appealable under Order XLIII, Rule 1(r) of the Code of Civil Procedure---Rules 1 and 3 or Rules 2 and 3 of Order XXXIX, C.P.C. are to be read together, whereby an injunction granted without notice must be confirmed or set aside after hearing the adverse party, making such confirmation an appealable order---Appeal held maintainable. ----Cited Cases: PLD 1957 Lah. 523 AIR 1929 Mad. 803 AIR 1940 Nag. 45 (b) Civil Procedure Code (V of 1908): ----Ouster of Civil Court Jurisdiction---Section 9, Azad Jammu & Kashmir Grant of Khalsa Waste Lands Act, 1966 Jurisdiction of Civil Courts---Issuance of injunction in matters concerning state land---Government contended that the jurisdiction of civil courts was ousted under Section 9 of the Azad Jammu & Kashmir Grant of Khalsa Waste Lands Act, 1966, and that no injunction could be issued by the District Court---Held, that civil courts generally have jurisdiction over all civil matters unless expressly barred by statute---Statutory provisions ousting jurisdiction must be strictly construed, especially where the Government seeks such exclusion for its own benefit---As the District Judge had left the question of jurisdiction undecided, it was appropriate for the trial court to decide the issue first before any appellate determination. (c) Civil Procedure Code (V of 1908): ----Principles governing grant of injunction---Balance of convenience Grant of injunction---Plaintiffs were in possession of the disputed land, having cultivated it and built structures upon it---Balance of convenience weighed in favor of the plaintiffs---Held, that since the plaintiffs’ possession was admitted and ejectment proceedings had been initiated after fourteen years of mutation approval, the trial court was justified in granting the injunction to prevent irreparable loss to the plaintiffs pending final adjudication---Appeal dismissed. ----Disposition: Appeal dismissed.

Summary: (a) Civil Procedure Code (V of 1908) ----Order XXXIX, Rules 1 & 2----Interim Injunction----Prima facie case----Balance of convenience----Irreparable loss----Scope and principles for granting interim relief. In a suit for declaration filed by the petitioner, who claimed ownership of 32-kanals of land based on a gift deed executed on 28.10.2009, interim relief was sought to restrain dispossession and further transfer of the property. The courts below dismissed the application for interim injunction on the grounds that: (i) The petitioner failed to produce evidence to establish the validity of the gift deed. (ii) The property had been transferred to respondent No.2 via mutation No.1536 dated 17.03.2018. (iii) Prima facie case could not be presumed as the petitioner's claim relied on an unregistered document requiring evidence for authenticity. (iv) Balance of convenience favored the respondents, given the documented mutation in favor of respondent No.2. (v) The petitioner failed to demonstrate any irreparable loss in the absence of an injunction. The principle of lis pendens was held sufficient to protect the petitioner’s rights during litigation. (b) Doctrine of Lis Pendens ----Protection of rights during litigation----No interim injunction required where rights are safeguarded by the principle of lis pendens. The court observed that the petitioner’s rights were adequately safeguarded under the principle of lis pendens, and the grant of interim relief was unnecessary. (c) Constitutional Jurisdiction of High Court ----Scope of interference in interim relief orders----No misreading or non-reading of evidence. The High Court reiterated that it does not interfere in the findings of lower courts on interim injunctions unless misreading, non-reading, or illegality in the appreciation of evidence is established. No such error was found in the judgments of the courts below, which were held to be well-founded and justified. Disposition: Petition dismissed. Trial court directed to decide the main case on its merits, uninfluenced by observations made in the interim injunction orders. Cited Laws: Civil Procedure Code, 1908 (Order XXXIX, Rules 1 & 2). ----- ''Third wife on the basis of unregistered gift deed in her favour challenged the transfer of property by husband in favour of second wife through gift mutation in her favour, as third wife was required to prove unregistered gift in her favour to dislodge transfer in favour of second wife recorded in revenue record, prima facie case could not be assumed in her favour.''

Summary: [Civil Procedure Code CPC (O.XXXIX, Rule.1 & 2 Interim Injunction)] in the absenceof any challenge to the declaration of gift executed by deceased himselfduring his life time along with signed transfer deeds, it is a futileattempt to grant any such injunction of the nature as argued, and noteven prayed. No doubt the application itself has prayed for an order thatthe defendants be restrained from selling, transferring, disposing off orgifting in any manner, way or form the property, undertakings and assetsof the company other than in accordance with law, which do not call fororders as prayed for on the strength of the shareholding of the company,which has not been disputed in the application.

Summary: In view of the above, the applicant / accused Abrar Ahmed Siddiqi has made out a case for the grant of bail. Accordingly, the interim pre-arrest bail granted to him vide order dated 23.06.2021 is hereby confirmed on the same terms and conditions. It is clarified that the observations made herein are tentative in nature which shall not prejudice the case of either party nor shall they influence the learned trial Court in any manner in deciding the case strictly on merits in accordance with law. This bail application is allowed in the above terms.