ATIR MAHMOOD, J.---This appeal is directed against the order dated 21.03.2015 passed by the learned Additional District Judge, Gujrat whereby the application for temporary injunction filed by the respondent-plaintiff was accepted.
2. The brief facts of the case are that the respondent filed a suit for infringement, permanent injunction, passing off, damages and unfair competition under the Trade Marks Ordinance, 2001 along with an application under Order XXXIX, Rules 1 and 2 of C.P.C. for grant of temporary injunction. The suit was contested by the appellants by filing the written reply. There-after, the learned appellate court fixed the case for the affixation of court-fee by the respondent and after affixation of the court fee case was fixed for the arguments on the application under Order XXXIX, Rules 1 and 2 read with section 151 of C.P.C. The said application was contested by the. appellants by filing the written reply. After hearing the parties, the learned Additional District Judge accepted the application filed by the respondent vide impugned order dated 21.03.2015. Hence this appeal.
3. Learned counsel for the appellants submitted that the impugned order passed by the learned Additional District Judge Gujrat is based on surmises and conjectures; that the impugned order passed by the learned trial court is result of misreading and non-reading, of evidence; that the learned appellate court while passing the impugned order has ignored the written statement filed by the appellants, in which the appellants raised the preliminary objections about the single remedy availd and the two suits cannot be proceeded in a parallel position. He lastly prayed for acceptance of this appeal and the impugned order be set-aside. He has relied upon the cases reported as Muhammad Saleem and another v. Messrs M. Yousaf ADI Saleem and Co. through Muhammad Yousaf Adil and 6 others (2011 YLR 3016) and Muhammad Hussain and 12 others v.
Mst. Arifa Begum and 2 others (2008 YLR 157).
3(sic) On the other hand, learned counsel for the respondent while supporting the impugned order dated 21.03.2015 passed by the learned Additional District Judge, Gujrat submitted that the said order is well reasoned and the learned appellate Court has committed no illegality while passing the same. He submitted that subsequent to the filing of the present suit, the respondent withdrew his earlier suit filed at Nawabshah. He has relied upon the case reported as Ghulam Nabi and others v. Seth Muhammad Yaqub and others (PLD 1983 Supreme Court 344).
4. Arguments heard. Record perused.
5. Learned counsel for the appellants has mainly argued the case on the maintainability of the suit filed at Gujrat. The merits of the case qua the grant of injunction in favour of the respondent were not attacked through any cogent arguments. Admittedly, the respondent while filing the suit in paragraph No,15 of the plaint disclosed about the pendency of an earlier suit at Nawabshah and there was a categorical assertion that the earlier suit will be withdrawn. The argument of the learned counsel for the appellants that the subsequent suit was hit by provisions of section 10 of C.P.C. is misconceived for the reason that the earlier suit filed by the appellants has been withdrawn by the appellants which fact could not be denied by the appellants, therefore, section 10 of the C.P.C. is not attracted as there is no lis pending before another court.
6. As far as the maintainability of the subsequent suit is concerned, there is no bar under the law to file a subsequent suit in the presence of the earlier one and when earlier suit is withdrawn after institution of the subsequent suit, then the provisions of Order XXIII of C.P.C. are also not attracted and fresh suit could not be declared to be barred by law. In this regard, the law laid down by the August Supreme Court in the case reported as Ghulam Nabi and others v. Seth Muhammad Yaqub and others (PLD 1983 Supreme Court 344) is followed. The relevant portion of the said judgment is reproduced as under for ready reference:-- "A fresh suit envisaged in the rule is one filed subsequent to the withdrawal of the earlier suit. On the question whether the rule barred a suit which at the time of the withdrawal of the earlier suit had already been instituted and pending, we find that in Ram Mal v. Upendra Datt (1) relying on P.
Surja Reddi (2), it was held that a second suit will not be barred in the case of withdrawal of a previous suit unless conditions of Order XXIII Rule 1, C.P. C. are fully satisfied and that if the subsequent suit was already pending at the time of the withdrawal of the previous suit, the provision could not be attracted. A Division Bench of the Lahore Court is Mungi Lal v. Radha Moham (3) held that:-- "Order XXIII, rule 1 refers to permission to withdraw a suit with liberty to institute a fresh suit after the first one has been withdrawn. It appears to me that the section cannot be read so as to bar a suit which has already been instituted before the other suit had been abandoned or dismissed". The judgment had been followed in Abdullah v. Bashiran Bibi (4) and it had been held that a fresh suit which had been pending at the time of withdrawal of a previous suit was not barred. The view taken in Mungi Lal's case had also been allowed by this court the commission Income Tax v.
Ashfaq Ahmad (5), wherein it had been held that where one writ petition had been filed during the pendency of a previous writ petition, the withdrawal of the previous writ petition before reaching the stage of hearing on merit would not affect the maintainability of the second petition which could legally proceed in spite of the withdrawal of the previous petition". (Emphasis Provided)
7. As far as the merits of the case are concerned, there is no denial to the fact that the trademark of the respondent is 'already registered vide No,189205 dated 15.10.2003 whereas the appellants have submitted their case for registration under trademark No,279226 dated 25.02.2010. The learned trial court has minutely considered the respective contentions of both the parties and the conclusion arrived at did not suffer from any misreading or non-reading of the record.