' MAMOON RASHID SHEIKH, J.---This regular first appeal arises out of the judgment and decree dated 17-5-2002 passed by the learned Additional District Judge, Rawalpindi whereby the plaint in the appellant's "suit for injunction against infringement of trade mark, passing off, damages and account of profit" against the respondent was rejected. The suit had been filed by the appellant against the respondent in respect of the antibiotic cream manufactured by the appellant under the registered trade mark "Fucidin". It was alleged that the respondent is manufacturing an antibiotic cream which it is marketing as "FUDIC" and is not only infringing the appellant's trade mark but is also to trying of pass off its product as the appellant's.
2. The precise question which needs adjudication in this appeal is that whether in the facts and circumstances of the case when the suit of the appellant was fixed for arguments on its application under Order XXXIX, Rules 1 and 2 of the C.P.C. For grant of a temporary injunction the learned trial court was competent to reject the plaint.
3. The learned counsel for the appellant has argued that under the law as laid down by the Hon'ble Supreme Court of Pakistan in the judgment reported as Qazi Muhammad Tariq v. Hasin Jahan and 3 others (1993 SCM R 1949) when a suit is fixed for arguments on an application for grant of a temporary injunction the court should only decide the said application and should not proceed to reject the plaint. At best the learned trial court should have dismissed the application for grant of a temporary injunction, the plaint could not have been rejected. Further contends that the principles for deciding an application for the grant of a temporary injunction are separate and distinct from the principles for rejection of a plaint. Whilst rejecting a plaint a court has to only consider the plaint and if it fails to disclose a cause of action or is barred by/under a law then and only then the plaint can be rejected. The defence of the defendant or any document presented by the defendanf cannot be taken into consideration especially when it is contested by the plaintiff. The learned trial court ignored the facts of the case and these provisions of the law and has erred by rejecting the plaint in the appellant's suit. He, therefore, prays that it is a fit case for remand.
4. The learned counsel for the respondent has controverted the stance of the learned counsel for the appellant. He submits that the products of the parties are medicines. In such like cases when the generic name of the medicine is the same then where only prefix of a trade mark (generic in nature) was similar and suffixes were largely different then the question of confusion does not arise. In the instant case the products of both parties have the same generic prefixes but the suffixes are different, hence, no case of infringement of trademark is made out by the appellant.
Submits that in any event the suit of the appellant is liable to be dismissed and/or the plaint is liable to be rejected. The learned trial court passed the impugned judgment and decree in accordance with the law. Relies on the judgments reported as LIPHA LYONNA ISE INDUSTRIELLE PHARMACEUTIQUE through Authorized Signatortj v. Registrar of Trade Marks and another (2009 CLD 1289) and BAYER A.G. And another v. MACTER INTERNATIONAL (Pvt.) Ltd. (2003 CLD 794). Further contends that even if the case was to be remanded the result would ultimately be the same. Prays for dismissal of the appeal.
5. The learned counsel for the appellant in rebuttal whilst reiterating his earlier arguments contends that the suit of the appellant is not only a suit for infringement of trade mark but is also a suit for passing off which requires recording of evidence as there is dishonest deception by the respondent.
6. I have gone through the record with the able assistance of the learned counsel for the parties who have also taken me through the various principles of law involved in the matter. 1 find that on the fateful day (17-5-2002) the suit of the appellant was indeed fixed for arguments on the appellant's application for grant of a temporary injunction. The learned trial Court, however, proceeded to reject the plaint. In my view the learned trial court erred in law. In having done so. I am fortified in my view on the basis of the judgment passed by the Hon'ble Supreme Court in Qazi Muhammad Tariq's case (supra) cited at the bar by the learned counsel for the appellant. Even otherwise, there is also force in the contention of tr learned counsel for the appellant that the suit of the appellant was not only confined to infringement of trademark but also alleged passing off which necessarily entailed detailed inquiry and recording of evidence. The plaint, therefore, could not have been rejected.
7. In view thereof, the arguments advanced by the learned counsel for the respondent are repelled.
Moreover, the law favours that cases should be decided on merits and technicalities should be avoided. Reliance in this regard is placed on the judgment of the Hon'ble Supreme Court of Pakistan reported as Maulana Atta-ur-Rehman v. Al-Haji Sardar Umar Farooq and others (PLD 2008 SC 663).
8. Under the circumstances, this appeal succeeds and the matter is remanded to the learned trial court for decision afresh in accordance with the law. The parties are directed to appear before the learned District Judge, Rawalpindi, on 22-2-2011 for entrustment of the case to the learned court having jurisdiction in the matter. The office is directed to remit the record.
9. There is no order as to costs. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.