' MIAN SAQIB NISAR, J.---The appellants, filed a suit against the respondent for the infringement of their trade mark and for passing off action.
2. The respondent contested the matter by filing a written statement and, inter alia, took up the plea, that the suit has not been filed by an authorized person. However, the learned trial Court while considering the application for the grant of temporary injunction, dismissed the suit as well as holding that the same has not been instituted by an authorized person.
3. The learned counsel for the appellants contends that according to the record, the power of attorney of appellant No,1 in the name of appellant No,2, duly authorizing him to file the suit, was available on the record and this vital document has been glaringly overlooked by the learned trial Court. Lie also submits that the question of authority was a question of act, which should have been determined after framing of proper issues and enabling the appellants to prove the same, but the learned trial Court has proceeded with the matter injudiciously and with undue haste, which has resulted into miscarriage of justice.
4. The respondent has already been proceeded ex parte vide order dated 16-5-2005, therefore, ex parte arguments have been heard.
5. Obviously, the question about the valid authority qua the institution of the suit is that of fact, has illegal implication, but such fact could only be determined by the learned trial Court after framing of the issues and recording of the evidence, in the absence of which, the impugned judgment undoubtedly is illegal and cannot sustain.
' In the light of above, the appeal is accepted, the impugned judgment and decree is set aside and the case is remanded to the learned trial Court for decision afresh in accordance with law.