ZAFAR AHMED RAJPUT, J. By this common order, I intend to dispose of C.M.A. No. 14653/2019, filed by the plaintiff under Section 94, C.P.C. read with Order XXXIX, Rules 1 and 2, C.P.C. read with Section 151, C.P.C., seeking interim injunctive relief restraining the defendants from infringing its proprietary rights in its trademark "HAJMOLA" by using, manufacturing, importing, distributing, marketing, supplying, selling or offering for sale any product bearing the trademark HAJMOLA in any manner whatsoever till the disposal of the suit, and C.M.A. No. 15207/2019, filed on behalf of defendants Nos.
1 and 2, under Order XXXIX, Rule 4, C.P.C. seeking setting aside ad-interim order dated 05.11.2019, whereby the defendants were restrained from manufacturing, distributing, marketing and selling any product with imitated trademark HAJMOLA in any manner whatsoever.
2. The facts necessary and germane for the disposal of the instant C.M.As. are that the plaintiff has filed the instant suit for declaration, permanent injunction, rendition of accounts, surrender/recalling of the goods and damages against infringement of trademark HAJMOLA under the Trade Marks Ordinance, 2001, inter alia alleging therein that it is a duly incorporated company and is engaged in business as manufacturer and merchant of a wide range of sweet, bakery and confectionary products including candies, toffees, chocolates, digestive tablets and other allied products and has adopted house-mark Hilal and launched candies under the trademark HAJMOLA in the year 1985 which are appearing in different types of packaging. It is further alleged that in order to secure its proprietary rights in its trademark HAJMOLA, the plaintiff obtained registration on 04.11.1982 in class 5 which is intact and valid for all intents and purposes till date. Besides, artistic work and getup of the label and designed HAJMOLA are also secured by registration in the Copyright Office, Government of Pakistan. It is case of the plaintiff that owing to exceptional good quality and taste of plaintiffs products under the distinctive- trademark HAJMOLA and the peculiar packaging, the plaintiff's products have always been in great demand throughout Pakistan and other countries; as such, the defendant No.1 illegally, unlawfully and abusing the goodwill of plaintiff's product, in connivance with defendant No.2, has imported infringing goods in bulk under the infringed trademark HAJMOLA and started commencing commercial sale of the same causing damage to plaintiff's right and goodwill. It is also case of the plaintiff that it was not the first attempt of the defendant No.1, but in past it created Asian Consumer Care (Pvt.) Limited ("ACCPL") and then Dabur (Pvt.) Limited and the plaintiff took action against the said companies and succeeded in obtaining restraining orders accordingly, and now the defendant No.1 has once again attempted to infringe the plaintiff exclusive right in trademark HAJMOLA; therefore, it has maintained the instant suit.
3. Ms. Saira Sheikh, learned counsel for the plaintiff, has contended that the use of plaintiff's registered trademark HAJMOLA by the defendants Nos. 1 and 2 is illegal and fraudulent as they knowingly are deceiving the public at large into believing that their products are the products of the plaintiff and this deception on their part is creating a false impression in the minds of the public with regards to the plaintiff's brand and goodwill associated with HAJMOLA, which has established its reputation; as such, the use of HAJMOLA by the defendants Nos. 1 and 2 for their products shall reflect poorly on the brand image associated with the brand name and the trade mark of the plaintiff; that it is apparent that the defendants are using the name HAJMOLA with a dishonest intent of misrepresentation, impersonating the plaintiff and, using the same without its express knowledge, permission or authorization; that the defendants are manufacturing and selling goods falling in a class in which plaintiff's mark is registered and the goods of the plaintiff are also of similar nature and it is of fundamental importance to highlight that the products of the plaintiff and the defendants are similar in nature and sold to similar consumer; that the use of HAJMOLA on its products by the defendants Nos. 1 and 2 is against honest business, industrial and commercial practices and in violation of sections 39 and 40 of the Trade Marks Ordinance, 2001 ("the Ordinance") and appears to be a direct threat amounting to passing on and infringement of plaintiffs trademark and copyrights; that the plaintiff has good prima facie case for the grant of interim relief and balance of convenience also lies in its favour and unless immediately restrained, it apprehends that the defendants Nos. 1 and 2 will continue to cause irreparable harm and damage to its business and reputation; hence, interim restraining relief has been sought by the plaintiff in terms of C.M.A. under reference. In support of her contentions, learned counsel has relied upon the cases of (i) Farooq Ghee and Oils Mills (Pvt.) Ltd. v. Registrar of Trade Marks, Trade Mark Registry and others (2015 SCMR 1230), (ii) Messrs Bengal Waterproof Limited v. Messrs Bombay Waterproof Manufacturing Company and another (AIR 1997 SC 1398), (iii) Muhammad Ashraf and 3 others v. Muhammad Latif (2005 YLR 756), (iv) Muhammad Qasim v. Razia Begum and 5 others (2012 CLC 1118), (v) Bayer AG. through Authorized Signatory v. Bayhealth Care (Private) Limited through Chief Executive Director, Company Secretary and another (2013 CLD 2087), (vi) Messrs Snowhite Dry Cleaners v. Sufiyan Ahmed (2013 CLD 57), (vii) Roznama Hamdard through Chief Editor v. Hamdard National Foundation Pakistan (2010 SCMR 95), (viii)
Wrangler Apparel Corporation v. Axfor Garments through Proprietor/Manager/Partners (2008 CLD 70), (ix) Vifor (International) Inc. through Authorized Signatory v. MeMon Pharmaceutical through Sole Proprietor (2013 CLD 1531), (x) Pioneer Cement Limited through Company Secretary v. Fecto Cement Limited through Chief Executive Officer and 3 others (PLD 2013 Lahore 110), (xi)
Seven Up Company v. Kohinoor Thread Ball Factory and 3 others (PLD 1990 SC 313), (xii) ARC International through Authorized Signatory v. Ahmer Mansoor and 2 others (2012 CLD 226), (xiii)
Messrs Tabaq Restaurant v. Messrs Tabaq Restaurant (1987 SCMR 1090),(xiv) JN. Nichols (Vimto) PIC A Company incorporated in the United Kingdom v. Mehran Bottlers (Private)
Limited, Karachi (PLD 2000 SC 192), (xv) M Sikandar Sultan v. Masih Ahmed Shaikh (2003 CLD 26), (xvi) Maaza International Company L.L.C. v. Popular Food Industries Ltd. and another (2004 CLD 171), (xvii) Tapal Tea (Private) Limited v. Shahi Tea Company (2002 CLD 1113), (xviii) Pakistan Drug House (Pvt.) Limited v. Rio Chemical Company and another (2003 CLD 1531), (xix) Ch. Zafarullah Khan and 6 others v. Pakistan through Secretary, Ministry of Defence, Government of Pakistan, Islamabad and 5 others (PLD 1975 SC 15) and (xx) Sahib Khan v. Muhammad Ramzan and another (2000 MLD 729).
4. Conversely, Mr. Omar Memon, learned counsel for defendants Nos.1 and 2, has maintained that the defendant No. 1 is a public limited company incorporated under the laws of India and it is the owner of the well-known mark of 'Dabur Hajmola' which is protected under the Paris Convention and Section 86 of the Ordinance while, the defendant No. 2 is a private limited company incorporated under the relevant laws in Pakistan since 2015 and a licensee of the defendant No. 1 through License Agreement, dated 23-11-2015, whereby the defendant No. 2 has been authorized to use defendant No. 1's trademark 'Hajmola' in Pakistan and to manufacture and sell the products owned by the defendant No. 1 with effect from 01-10-2015; that Dabur Hajmola, the product of the defendant No. 1, is a globally recognized ayurvedic digestive tablet, and to protect its intellectual property rights, the defendant No. 1 has obtained registration of its mark 'Hajmola in various countries which are party to the Paris Convention and include, inter alia, India and the United Kingdom; that for decades, the defendant No. 1 was carrying out the business operations of 'Dabur Hajmola' through distributors; subsequently, in 2006, ACCPL was incorporated to carry out the functions of the defendant No. 1 in Pakistan, later the License Agreement, dated 23.11.2015, was executed between the defendants Nos. 1 and 2 whereby the defendant No, 2 was authorized to use the trademark "Hajmola" in Pakistan; that both the plaintiff and the defendant No. 1 have been involved in litigation for decades and these matters are still sub judice before the Courts in Pakistan and the Plaintiff has chosen not to disclose the pending litigation and the relevant orders passed therein, which goes to the root of the matter and shows the extent of the mala fides of the plaintiff and the lengths the plaintiff is willing to go to in order to mislead this Court and obtain the ad-interim Order dated 05.11-2019; that the Suit is barred by the doctrine of res judicata, constructive res judicata and res sub-judice enshrined in sections 10 and 11, C.P.C.; that the plaintiff has failed to make out prima facie case for the grant of interim injunction and no irreparable harm has been caused to it and in fact it is the defendants Nos. 1 and 2 who shall suffer irreparable loss in case C.M.A. No. 16453 of 2019 filed by the plaintiff is allowed; therefore, the same may be dismissed and interim order passed in favour of the plaintiff may be recalled. In support of his contentions, learned counsel has placed his reliance on the cases of (i) The Stillman's Company (Pvt.) Ltd. through Chief Executive Officer v. S.M. Anees and another (2019 YLR 815), (ii) University of Health Sciences and others v. Mumtaz Ahmad (2010 SCMR 767), (iii) Clifton Block-7 Residents'
Association through V.P. Amir and 6 others v. Zubair Ahmed and 5 others (2015 CLC 1090), (iv)
Zulfiqar Ahmed Bhutta and 15 others. v. Federation of Pakistan through Secretary Ministry of Law, Justice and Parliamentary Affairs and others (PLD 2018 SC 370), (v) Mumtaz Baig and others v. Jamal Din through legal heirs (2009 SCMR 1364), (vi) Muhammad Ibrahim through Attorney v. Province of Sindh through Chief Secretary, Government of Sindh, Sindh Secretariat, Karachi and 6 others (2018 MLD 1099), (vii) Messrs H & B General Trading Company through Director v. Messrs International Marketing Company through Proprietor and 2 others (2009 CLD 318), (viii) Italfarmaco S.P.A. v. Himont Pharmaceuticals (Pvt.) Ltd. and another (2017 CLD 1382), (ix) Gulistan Textile Mills Ltd. and another v. Soneri Bank Ltd. and another (2018 CLC 203), (x) Messrs Beecham Group Ltd. v. Registrar of Trade Marks and another (1968 SCMR 626), (xi) Khushi Muhammad and 2 others v. The Province of Punjab through Secretary Government of Punjab and 2 others (1999 SCMR 1633), (xii) State Bank of Pakistan through Governor and another v. Imtiaz Ali Khan (2012 SCMR 280), (xiii) Abdul Hakim and 2 others v.
Saadullah Khan and 2 others (PLD 1970 SC 63), (xiv) Aziz Ahmed and others v. Mst. Hajran Bibi and another (1987 SCMR 527) and Messrs Coca Cola Beverages Pakistan Ltd through Company Secretary v. Messrs Echo West International (Pvt.) Ltd: through Chief Executive Officer and another (2016 MLD 1077).
5. Heard the learned counsel for the parties and perused the material available on record.
6. It appears that earlier to this Suit, the defendant No.1 filed Suit No. 14 of 1995 against the plaintiff wherein vide Order dated 21.05.1999 (Reported as PLD 2000 Karachi 139), the plaintiff was restrained from passing off and infringing the defendant No. 1's trademark Hajmola and copyrights in respect of its wrappers and the said suit is still pending adjudication before this Court. The plaintiff preferred H.C.A. No. 275 of 1999 against the said Order before a Division Bench of this Court.
Through Order dated 11.04.2000, the Division Bench permitted both the plaintiff and the defendant No. 1 to use the trademark "Hajmola" as an interim arrangement. However, the Order dated 11.04.2000 has been concealed by the plaintiff in the present Suit even though the said Order is still in field and said H.C.A. is still pending adjudication. Besides, prior to said H.C.A., the defendant No.1 has filed J.M. No. 58 of 1997 to cancel/remove the registration of the plaintiffs trademark HAJMOLA before this Court and vide Order dated 16.02.2016, this Court restrained the Registrar of Trade Marks/respondent No. 7 in the J.M to maintain status quo till further orders. The J.M. is still pending adjudication before this Court. The plaintiff filed Civil Suit No. 167 of 2015 for permanent injunction, infringement, passing off, unfair competition, rendition of accounts and damages against the defendant No. 1 before the Intellectual Property Tribunal Lahore, wherein the Tribunal passed an Order on 07.04.2015 restraining the defendant No. 1 from passing off goods by using the offending trademark. Subsequently, the Tribunal passed another Order on 15.07.2015 observing that the injunctive Order passed earlier would have no effect because of the Order dated 11.04.2000 passed in H.C.A. No. 275 of 1999 (supra) Thereafter, the Tribunal passed an Order on 11.06.2016 and adjourned the said Civil Suit sine die till adjudication of H.C.A. No. 275 of 1999. The plaintiff has not disclosed filing and pending adjudication of the aforementioned cases in its pleadings; especially the Order dated 11.04.2000 passed in H.C.A. No. 275 of 1999, whereby the defendant No. 1 has been permitted to use the trademark Hajmola on its products.
7. It may be observed that concealment of the factum as to the earlier litigation between the same parties, in the subsequent suit, is a conduct which disentitles a party to the grant of the discretionary relief of an injunction. It may further be observed that complete disclosure, about previous connected, related or relevant proceedings and orders is essential when a litigant approaches a Court and unless such non-disclosure can be satisfactorily explained, the claimant should not, as a matter of general principle, be granted interim relief. It is settled principle of law that he who comes to equity must come with clean hands. In the instant case, it is evident from the conduct of the plaintiff concealing the pending litigation between the parties and the Order dated 11-04-2000 prior to obtaining ad-interim Order dated 05-11-2019 that it has acted inequitably and has not approached this Court with clean hands.
8. Since the Order dated 11-04-2000 passed in H.C.A. No. 275 of 1999 is binding upon this Court, as the same was passed by a Division Bench of this Court and continues to hold the field, I am the view that the plaintiff has failed to make out prima facie good arguable case for the grant of interim injunctive relief as prayed for. The case-law cited by the learned counsel for the plaintiff being on different footings are not helpful to advance the case of the plaintiff for the grant of interim injunctive relief.
9. For the foregoing facts and reasons, C.M.A. No. 14653/2019 is dismissed being devoid of merit, while C.M.A. No. 15207/2019 is dismissed on becoming infructuous, with no order as to cost.