This suit was filed by the plaintiff who is the registered proprietor in Pakistan of Letters Patent No. 118454 dated 30th November, 1966 in respect of an invention entitled -Improvement in or relating to methods of and apparatus for manufacturing ornamented and or mufti-coloured glass beads or marbles". According to the plaintiff-defendant No. 1 infringed and continues to infringe the said letters patent of the plaintiff. Defendant No. 2 was joined as a distributor of defendant No. 1. The following reliefs have been claimed by the plaintiff in the present suit:-
(i) A permanent injunction restraining the defendants Nos. 1 and 2, their servants agents, representatives and assigns from infringing the said letters patent in any manner.
(ii) An .Inquiry as to the damages sustained by the plaintiff' by reason of such infringement and payment by the defendants to the plaintiff of the sum found due on such inquiry or account of profits.
(i.e) An order for delivery ' up or destruction upon oath of all articles and machinery in the possession, power or control of the defendants made in infringement of the said letters patent together with 9% interest per annum from the date of suit till payment."
2. Defendant No. 1, in his written statement, denied the allega--tions made in the plaint. Defendant No. 2 adding that they were only one of the distributors for the sale of products of defendant No. 1 and not being the manufacturers of the coloured glass marbles and accord--ingly they were not concerned with the alleged infringement of the plaintiff's letters patent. The following consent, issues suggested by learned counsel for the parties were adopted by this Court :- "(1) Whether the plaintiff is the first or the true inventor of an in--vention entitled. "Improvement in or relating to the methods .Of an apparatus for manufacturing ornamented and/or multi --coloured glass-beads or marbles?" .
(2) Whether the Letters Patent No. 118454 dated 30th November, 1966, was obtained by the plaintiff by misrepresentation and fraud ?
(3) Whether the said Patent is valid and subsisting in Pakistan ?
(4) Whether the process and apparatus for manufacturing ornament--ed multicoloured glass, beads and marbles was of common knowledge to the glass manufacturing industry much prior to the period when the plaintiff obtained the letters patent in his favour ?
(5) Whether the alleged invention was a new manner of manufacture or the improvement at the date of patent ?
(6) Whether the defendant No. 1, has infringed and/or continues to infringe the said Letters Patent No. 118454 dated 30th November, 1966, by using the invention without the plaintiffs consent/ licence and is manufacturing glass marbles to the prejudice of the plaintiff, and is distributing them through the defendant No. 2 as alleged ?
(7) Whether the plaintiff is entitled to the relief or injunction restraining the defendant/their servants/agents from manufacturing/ selling distributing enabling others, to distribute/sell the multicoloured glass marbles?
(8) Whether the plaintiff's patent was registered and confirmed only for East Pakistan and is not valid for West Pakistan as well ?
(9) Whether the Letters Patent No. 118454 dated 30th November, 1966 in the plaintiff's favour is liable to be revoked ? '
(10) Whether the plaintiff is entitled to damage and accounts from the defendant as claimed in the suit ?
(11) Whether the suit is maintainable
(12) What should the decree be?"
3. This case was fixed for regular hearing on 18th February, 1982, when Mr. Mohsin Tayebaly stated no instructions on behalf of defendant No. 1, and Mr. Sohail Muzaffar, learned counsel for the plaintiff stated that he was not pressing the suit as against defendant No. 2. Plaintiff only examined himself (Exh. 6). He was not cross-examined, as Mr. Mohsin Tayebaly had stated no instructions on behalf of defendant No. 1 Counsel for the plaintiff closed his side after the evidence of the plaintiff had been recorded. As none appeared on behalf of defendant No. 1, his side was closed. As Mr: Sohail Muzaffar did not press the suit against defendant No. 2, this suit is dismissed as against defendant No. 2. 1 heard the arguments of Mr. Sohail Muzaffar.
4. (a) On issue No. 1, there is the evidence of the plaintiff that he has beep in business of manufacturing marbles and that ho invented a machine for making glass and get the patent registered in respect thereof. He produced the certificate dated 24th August, 1972 (Exh. 6/1) issued by the Controller of Patent and Designs annexing true copies of the specification and drawings in respect of Patent No. 118454 dated 30th November, 1966, granted to the plaintiff for the invention in question. Evidence of the plaintiff stands uncontroverted and issue No. 1 is accordingly decided in the affirmative in favour of the plaintiff.
(b) Burden of issue No. 2 was on the defendants and as neither any evidence has been led on behalf of the defendants nor the burden dis--charged, issue No. 2 is decided in the negative.
(c) On issue No. 3, plaintiff's evidence, which has not been challeng--ed, supported by Exh. 611, establishes that the said patent is valid and subsisting in Pakistan. Issue No. 3 is decided in the affirmative accordingly.
(d) In view of the plaintiff being the registered proprietor of the said letters patent as evidenced by Exh. 6/l, burden of issue No. 4 was on the defendants and as no evidence has been adduced on their behalf and the burden not discharged, issue No. 4 is decided in the negatived.
(e) Issue No. 5 is decided in the affirmative in favour of the plaintiff on the basis of his evidence supported by Exh. 6/1, and in view of their being no evidence in rebuttal.
(f) Issue No. 6 relates to infringement of the letters patent of the plaintiff by defendant No 1.
Plaintiff's evidence on the point is clear and that is that initially defendant No. I was a customer of the plaintiff and used to purchase from the plaintiff' glass marbles manufactured by the plaintiff through the machine in respect whereof he got y the letters patent registered ; defendant No. 1 made several approached to the plaintiff for grant of agency but the plaintiff did not agree; when defendant No. 1 was not successful in obtaining the agency, he won over a mistri of plaintiff's factory and with the of an engineer, he made a machine which was an imitation of plaintiff's machine and started pro--duction of similar goods; that the infringing machine was instilled by de 1 fondant No. 1 on plot No F-2); A, S.I.T.E.. Karachi; that when the plaintiff came to know of the infringement. He served a notice on defendant No. 1 in November, 1971, but no reply was received from defendant No. 1. Evidence of the plaintiff his remained unchallenged. Issue No. 6 is decided in the affirmative against defendant No. 1 and I find that defendant No. 1 has infringed and continues to infringe the plaintiff's registered letters patent by using the invention without the plaintiff's consent or licence and is manufacturing glass marbles to the prejudice of plaintiff. As no evidence has been led by the plaintiff against defendant No. 2, against whom suit has not been pressed, it has not been proved that the glass marbles are being distributed through defendant No. 2. t.
(g) In view of my findings on issues Nos. 1 to 6, issue No. 7 is decid--ed in the affirmative and the plaintiff is entitled to the injunction claimed in the suit as against defendant No. 1, his servants and agents.
(h) On issue No. 8 there is Exh. 6/t and the evidence of the c. Plaintiff. No evidence try the contrary is on record, Exh. 6/1 was issued J' on 24th February, 1972, by the Controller of Patents and Designs, Government of Pakistan. This issue is decided in the negative and I find that the plaintiff's letters patent was registered and confirmed entire Pakistan.
(i) Burden of issue No.9 was on the defendants which has not been discharged. This issue is decided in the negative.
(j) From the evidence of the plaintiff supplemented by Exh. 6/1, 1 find that the suit is maintainable.
Nothing has been brought on record to show that the present suit is not maintainable. Issue No. 11 is decided in the affirmative.
(k) I now take up issues Nos. 10 and 12 together. In view of my findings on issues Nos. I to 9 and 11, the plaintiff is entitled the reliefs claimed by him in the present suit as against defendant No. 1.
However, as regards an inquiry as to the damages on account of infringement, I do not find it necessary to pass a preliminary decree for accounts and a final decree for damages can be passed because of the following statement made by the plaintiff in his evidence:- "Pursuant to orders passed by this Court, defendant No. I has filed certain quarterly statements showing the manufacturing of goods, through the infringing machine. According to the normal profit in trade of this kind, there is a margin of 15 to 20% as profits. I would be satisfied at this stage if a decree is granted as regards damages on the basis of the statements already filed by defendant No. 1 at the rate of 15 or 20% profits." .
On 18th December, 1972, on an application filed by the plaintiff in this suit under Order XXXIX, rules 1 and 2 read with section 151, C.P.C. (C. M. A. 1786/72) the following consent order was passed by this Court :-- "By consent let the defendant No. 1 file quarterly statement of accounts of sales of marbles, ornamented and coloured, in Court. In view of this, the plaintiff's application is disposed of."
According to the quarterly statements filed by defendant No. 1, from 1973 to 1.978 the total production of marbles by him was as follows:- Year No. Of cases of marbles Total price at the rate sold by defendant No. 1 1973915 cases.Rs. 60,200.00'.; 19741067 cases.Rs. 1,04,300.00 19751279 cases.Rs. 1,27,900.00 19761074 cases.Rs. 1,18,140.00 1977 No production--factory closed.
1978726 cases.Rs. 83,490.00 Rs 4,94,030.00
5. In view of my findings on the issues framed in this suit, I pass Judgment and decree as follows: -
(i) A permanent injunction is granted restraining defendant No. 1, his servants. Agents, representatives and assigns from infringing the plaintiff's registered letters patent No. 118454 dated 30th November, 1966 ;
(ii) Defendant No. 1 is directed to deliver up or destroy upon oath all the articles and machinery in his possession, power or control made in infringement of plaintiff's registered letters patent No. 118454 dated 30th November, 1966 ; (i.e) A decree in the sum of Rs. 1,20,000 in favour of the plaintiff against defendant No. 1 with interest @ 9% per annum from the date of this Judgment till realization. Additional Court-fee will be paid by the plaintiff.
(iv) Plaintiff shall be entitled to costs as against defendant No. 1. Suit of the plaintiff as against defendant No. 2 is dismissed with no orders as to costs: