KHALID PAUL KHAWAJA, J.- This is first appeal against order dated 6-6- 1992 whereby the learned District Judge, Lahore dismissed the appellants' application for temporary injunction in a suit for permanent injunction.
2. The relevant facts, in brief, are that on 28-4-1992 Ms Riaz Electric Co.(Pvt.) Ltd., hereinafter called the appellants, instituted a suit for permanent injunction against Ms Cool Industries (Pvt.) Ltd., hereinafter referred to as the respondents, for a permanent injunction to restrain them from infringing the registered design of the appellants and passing of their goods as goods of the appellants. The suit was also for rendition of accounts and for an action under section 53 of the Patents and Designs Act, 1911 against piracy of registered design. Both the parties who have their registered offices in Lahore are engaged in business of manufacture, production, distribution, marketing and selling Refrigerators-cu/Ji-Freezers. Name of the product marketed by the appellants is "Candy" while the product of the respondents bears the name of "Waves". The appellants asserted that they had created an original and novel design of Freezer- cum- Refrigerator by merging them in one unit. The base unit is divided into two parts with two lids opening on the top. One lid opens to the Freezer while the other opens to Refrigerator. This unit is being marketed under the name of "Candy Twin" and has acquired immense popularity all over Pakistan. It was alleged that the respondents had imitated the said design and thus by pirating the good will of the appellants were causing immense pecuniary loss to them.
2. Alongwith the suit the appellants moved an application under Order XXXVII, rules 1 & 2 CPC for a temporary injunction to restrain the respondents from marketing their product, namely, "Waves Freezer-cunt-Refrigerator" during the pendency of the suit.
3. The respondents resisted the suit as well as the application for temporary injunction.
4. After hearing the parties on the aforementioned application for temporary injunction the learned District Judge declined to grant the temporary injunction prayed for and vide the impugned order dismissed the appellant's application.
5. Feeling aggrieved the appellants have come up in appeal.
6. I have heard the parties' learned counsel and have also gone through the record.
7. Learned counsel for the appellants has contended that the learned court below had not correctly applied the law pertaining to the issuance of temporary injunctions to the present case. He maintained that the appellants had a strong prima fade case, balance of convenience was in their favour and they would! Suffer irreparable loss if injunction as prayed for was not issued. He asserted that under the law the appellants were entitled to the grant of temporary injunction which had been wrongly denied to them.
8. On the other hand learned counsel for the respondents has opposed the appeal and defended the impugned order. He maintained that the appellants had neither prima facie case nor balance of convenience was in their favour nor would they suffer any irreparable loss if the temporary injunction was not issued in their favour. He relied upon a number of judgments of superior courts to assert that in such cases temporary injunctions were not issued.
9. Learned counsel for the appellants has maintained that his clients had innovated Candy Twin in 1991 and on 23.1.1992 had applied for the registration of design and finally on 11.4.1992 the design was duly registered. He maintained that under section 45 of the Patent and Design Act it would be considered that the design was registered on the day when the application was made i.e. On 23.1.1992. He submitted that the respondents had imitated that design and had started marketing a Refrigerator-unit-Freezer unit after the Registration of the appellants' design. In this connection he has referred to R.T-I (Revenue Tax:I) which shows that manufacturing of "Candy Twin" had started in December, 1991 when only two units were manufactured. However, in April the said number increased to 1877. Learned counsel further maintained that the respondents had started marketing the pirated design much after the registration of the appellants' design.
10. Learned counsel for the respondents maintained that the respondents were selling the item in question even prior to the registration of the appellants' item and as there was no novelty in design, both items being geometrical in shape, therefore, no-one could claim monopoly over it, that the items in question were so well known to the consumers that they were being sold on account of their trade names and not on account of their designs and that the respondents were the original designers of the item in question and were pioneers in that trade.
11. Both the parties have referred to documents to show that the item in question was manufactured and marketed by them prior to the item of the other party. They have also referred to various advertisements which they gave in newspapers and periodicals to show that the items in question were introduced by them much before the registration. I am of the view that at this stage it is very difficult to hold as to when a party had introduced its item in market. This would also be improper because it would amount to pre-judging the case. Further, any opinion by this court at this stage would prejudice the case of either party. I therefore, refrain from giving any finding to the effect as to which of the party had first introduced and marketed the items in question. This controversy would be resolved by the learned trial court after recording evidence.
12. Temporary injunction is grafted to a party who succeeds in proving that he had a prima facie case, that balance of convenience was- in his favour and that he would suffer irriparable loss if temporary injunction was not issued. If any of the aforesaid three ingredients is missing, temporary injunction would not be granted. In the present case if it is assumed for the sake of argument that the appellants have a prima facia case and that balance of convenience is also in their favour even then, I am of the opinion, they are not entitled to the grant of temporary injunction because they would not suffer and irreparable loss if the temporary injunction prayed for is not issued. It is established from the documents on record and it is a common ground between the parties that every item manufactured by the respondents is entered in the R-T-I and from that record it can very easily be ascertained as to how many units had been manufactured and sold by them. In these circumstances if ultimately the suit is decided in favour of the appellants it would not be very difficult to assess as to how much the respondents had earned from the items in question and what the quantum of loss suffered by the appellants. So, the loss suffered by the appellants in the present case would be measurable in terms of money and such a loss has never been considered to be an irriparable loss. I therefore, hold that the temporary injunction prayed for was rightly refused by the learned lower court. The impugned order does not call for any interference by this court in appeal. The appeal consequently, is dismissed with no order as to costs.
13. The record shall be sent back to the learned District Judge, Lahore immediately. The parties are directed to appear before the learned District Judge, Lahore on 2.5.1994. The suit shall be decided by the 14th of July, 1994. No un necessary adjournment shall be granted to any party and if need be the case shall be heard on day to day basis.
14. Meanwhile the respondents shall supply to the learned trial court the inventories showing the number of items manufactured\marketed by them during the pendency of the suit.