1. C.M.A. No, 2668 of 1999
1. This is an application under section 10 of the C.P.C. Filed by the defendant praying that as it had on 1st June, 1998 filed a suit before the District Judge, Islamabad against plaintiff No,1 on the same facts and issues as arising out of the present suit, which is latter in time viz., having been filed on 9- 3-1999, this suit be stayed. By consent it has been heard by myself.
2. In support of this application, Mr. Fazle Hussain, learned counsel for the defendant, has firstly submitted that the present suit has been filed by the plaintiffs malafidely and as a counter-blast to the suit already pending between the parties and the Federal Government in the Court of Additional District Judge, Islamabad to whose jurisdiction the plaintiffs have already submitted and have also filed a written statement. However, in the present suit the defendant has not filed any written statement and objections as to the maintainability of the suit have since been filed. In this regard learned counsel has further submitted that the suit in Islamabad is in between the same parties and raises the same issues as the present suit and hence the latter deserves to be stayed.
2. Learned counsel has placed reliance upon Jannana De Malucho Textile Mills Limited v. Waqar A.
3. Chaudhry (PLD 1972 SC 34), S.M. Akil Fikree v. Muhammad Qamruzzaman (PLD 1982 Kar. 745), HBL v.
4. All Mohtarim Naqvi (PLD 1987 Kar.102), Mst. Arifa Begum v. Khutuqe Muhammad Naqvi (PLD 1969 Kar. 193), and Syed All v. Muhammad Mustafa (PLD 1971 Dacca 286).
5. ' In reply Mr. Muneeb Akhtar, learned counsel' for the plaintiffs, has submitted that firstly on the facts of the present suit, section 10 of the C.P.C. Would not apply since the parties are not the same as in the Islamabad case the Federal Government is also a party whereas in this case it is not so. So also, per learned counsel, in the prayer clause of the Islamabad suit it has been prayed that the plaintiff should be declared to be the lawful importer/seller of their drug and the main relief is against the Government of Pakistan, which is not so in the present suit. Additionally, learned counsel has maintained that the subject-matter of the two suits are not the same since in the present suit the reliefs are regarding infringement of the plaintiffs patent whereas in the suit filed by the defendant, there is no such plea. Thus, according to the learned counsel, since the facts in issue in both the ' cases and the parties are different and so also the reliefs claimed are different, therefore, there could be no question of the applicability of section 10 of the C.P.C. Whose main object is to avoid conflicting decisions a test of which is that a decision in the first suit should operate as res judicata in the second suit. In support of his contentions learned counsel has relied upon PICIC v. Modern Embroidery and Textile. Mills Limited (PIED 1976 Kar. 249) and Muhammad Younus v. Nargis Sultana (PLD 1970 Lah. 41).
6. I have heard both the learned counsel. It would be seen that as per settled law three essential conditions are to be considered in an application under section 10 of the C.P.C. Viz. That the matter in dispute in the second suit is directly and substantially in issue in the first suit; secondly, that the parties in both the suits are the same and finally that the Court in which the first suit was instituted is competent to grant the relief claimed in the second suit. The object being to avoid conflict to judicial decision by preventing Courts having concurrent jurisdiction from simultaneously adjudicating upon two or more parallel suits in which the matter in issue is the same as well as the parties. Applying the aforementioned principles of law to the facts of the present matter, it would be seen firstly that the parties in both suits are not the same inasmuch as the Ministry of Health is a party to the Islamabad suit whereas it is not so in the present suit; secondly, the relief claimed in the Islamabad suit is confined to a declaration that the plaintiff (who is the defendant in the present suit) is a lawful importer, manufacturer, marketer and or seller of its drug namely; Sofvasc Tablets (Amlodipine Besylate) as well as a decree for permanent injunction restraining defendant No,1 (plaintiff in present suit) from threatening or causing hindrance to the plaintiff from importing, manufacturing, marketing and/or selling the said drug.
7. On the other hand in the present suit, the prayer is for a permanent injunction against the defendant restraining it from infringing plaintiffs' Patent No,130621 inasmuch as the plaintiff claims to be the bona fide owner of the said patent which for the preparation of Besylate salt of Amlodipine and pharmaceutical composition thereof as certified by the Controller, Patents and Designs, Karachi, vide Certificate dated 28-12-1996, a true copy of which has been filed as Annexure "A" to the plaint. Per the allegations contained in the plaint, said patent is being infringed by the defendant as they are manufacturing their drug Sofvac, which is basically Amlodipine Besylate. In the foregoing circumstances, I am satisfied that two suits are quite different in nature and a decision in the first one viz. The Islamabad suit would not operate res judicata in the present suit.
8. For the foregoing reasons this application is dismissed.
2. C.M.A. 2667 of 1999 is an application filed by the defendant under Order 7, rule 10, C.P.C. Praying that the plaint in the 'suit be returned to the plaintiff with a direction to present the same before the Court having territorial jurisdiction in the matter. I have also heard this application with the consent of both the learned counsel. In support of this application Mr. Fazl-e-Hussain, learned counsel for the defendant, has firstly submitted that as per section 20(c) of the C.P.C., no cause of action has arisen to the plaintiff within the territorial jurisdiction of this Court and neither does the defendant reside therein and hence the plaint is fit to be returned to the plaintiff as prayed. Additionally, he has submitted that under section 36 of the Patents and Designs Act proceedings in respect of Patents and Designs must be filed before a District. Court having jurisdiction to try the suit and hence this Court to that extent also does not have any jurisdiction to entertain the suit.
9. ' In support of his submission learned counsel has relied upon Mst. Faizan v. Pakistan (PLD 1970 Kar.
10. 362), In re: Office Reference (PLD 1981 Kar. 210), Bawany Violin Textile Mills Limited v. Firdous Calico Printing Mills (PLD 1959 (W.P.) Lah. 522).
11. ' On the other hand, learned counsel for the plaintiff Mr. Muneeb Akhtar has submitted that the cause of action has very much arisen to the plaintiffs in Karachi since the defendant is selling its drug all over Pakistan including Karachi. Secondly, as per learned counsel, the present application under Order VII, rule 10 is not maintainable in view of the application under section 10 of the C.P.C., which has also been filed by the defendant since the former presupposes lack of jurisdiction whereas the latter does entirely the opposite.
12. I have heard both the learned counsel. As regards the issue of cause of action, it would be seen that this term has not been defined anywhere in C.P.C. But has been held in a number of cases that it consists of every fact, which if traversed should be necessary for the plaintiff to prove in order to support his right to judgment and if not proved gives the defendant a right to judgment. In the present case, the allegation levelled by the plaintiffs against the defendant is basically that the defendant is infringing its patent, which has been registered in Pakistan and this has been squarely traversed by the defendant whose stand is that it uses a process entirely different from that of the plaintiff and hence there is no question of any infringement of the plaintiffs' patent, which is only for a particular process of manufacturing its drug. Consequently, in my opinion, this Court has jurisdiction in terms of section 20(c) of the C.P.C. As the cause of action has also arisen to the plaintiffs in Karachi. Reliance in this regard can be made on I.T.O. Mardan v. Sanaullah Khan (PLD 1976 SC 790) and Lahore Development Authority v. Senbear Corporation (PLD 1984 Lahore 430).
13. As to the other objections raised by the learned counsel regarding jurisdiction in terms of section 36 of the Patents and Designs Act, it would be seen that this Court is the principal Court of original civil jurisdiction within the civil jurisdiction of District Karachi in respect of money matters valued at Rs,5,00,000 and above. Hence all suits valued at Rs,5 lacs and above are to be filed in this Court the cause of action of which arises within the District of Karachi. For this proposition Mst. Faizan v.
14. Pakistan (supra) can be relied upon. Consequently, the present suit in which the prayer is not only confined to a declaration and injunction as regards the plaintiffs patent but also for damages in the sum of Rs,30 million can only be filed in this Court as it exceeds the pecuniary jurisdiction of the District Court, which is confined to civil suits involving recovery for damages/compensation only up to Rs,5,00,000 only. As regards the case of Bawany Violin Textile Mills Limited v. Firdous Calico Printing Mills (supra), in my view the, same is distinguishable as the Courts in Punjab have unlimited pecuniary jurisdiction and hence it was held correctly in that case that the District Judge would have jurisdiction for any suit filed under sections 36 and 54 of the Patents and Designs Act.
15. For the foregoing reasons this application is also dismissed.
3. C.M.A. 2038 of 1999 is an application under sections 29 and 31 of the Patents and Designs Act whereby the plaintiff has prayed that the defendant, its employees, agents, etc. May be restrained from infringing the plaintiffs Patent No,130621 and from manufacturing, importing and/or selling any drugs containing the compound Amlodipine Besylate or any variation thereof in any form or in any other name.
16. ' In support of this application Mr. Muneeb Akhter, learned counsel for the plaintiff, has firstly submitted that the plaintiff is the proprietor of Patent No, 1306210 which has been granted by the Controller of Patents and Designs vide certificate dated 28-12-1996 being the process for preparing besylate salt of amlodipine and pharmaceutical composition thereof and the name of the drug so prepared is Narvasc. The said drug is used for various ailments viz. Hypertension, angina, etc., as stated in para.6 of the plaint. Learned counsel has further invited my attention to the leaflet contained in the carton, a true copy of which has been filed as Annexure "B/2" to the plaint, which is quite identical to the leaflet found inside the defendant carton, a true copy of which is filed as Annexure C/2. Most items are common viz. Actions, indications, adverse reactions, etc. Similarly, learned counsel has referred to Annexures F/1 and F/2, which are the copies of the affidavits of world renowned experts whereby they have stated that the process of preparation of the plaintiffs' drug is identical to that of the defendant drug because the preparation of a salt requires the reaction of a base and an acid (amlodipine base with benzenesulfonic acid), which is the reaction precisely claimed by the plaintiff vide their Pakistan Patent No,130621. Hence, per learned counsel, this is a clear-cut case of infringement by the defendant of the plaintiffs' Patent as admittedly the defendant is manufacturing and selling amlodipine besylate under the name of Sofvasc. In support of his contentions learned counsel has relied upon: Glaxo Group v. Evron (Pvt.) Ltd. (1992 CLC 2382), Glaxo Group Ltd. v. Pakistan Pharmaceutical Products (Pvt.) Ltd. (1991 MLD 85) and Sandoz Limited v. Pakistan Pharmaceutical Product (Pvt.) Ltd. (1987 CLC 1571).
17. ' In reply Mr. Fazl-e-Hussain, learned counsel for the defendant, has submitted that admittedly the defendant is an importer of amlodipine besylate, which is the raw material from which the defendant manufactures its own medicine viz. Sofvasc the process of manufacture being entirely different from that of the plaintiff. Consequently, per learned counsel, since the Patent of the plaintiff is only for the process of manufacturing the abovesaid salt there can be no question of any violation of the plaintiffs patent. In support of this submission he has relied upon: Glaxo Group Ltd. v. Evron (Pvt.) Ltd. (PLD 1991 Karachi 252).
18. ' Learned counsel has further submitted that the defendant has been given a licence by the Government of Pakistan for manufacturing of drugs and consequently the defendant is well within its right to import the raw material viz. Amlodipine besylate from which it manufactures its drug known as Sofvasc and hence there cannot be any question of any violation of the plaintiffs patent.
19. Finally, learned counsel has stated that on a moral plane, the patent given to the plaintiff effectively grants monopoly power for exploitation of ailing patients and is an abuse of public interest inasmuch as the patent holder is at liberty to charge whatever price it wants for its drug.
20. The defendant, on the other hand, is offering the same drug through its own manufacturing process at a lesser price and hence it is in the larger interest of the public that no stay should be granted against the defendant.
21. I have heard both the learned counsel. Admittedly, the plaintiffs patent is for a process for preparing desolate salt of amlodipine and pharmaceutical compositions thereof as per Annexure "A" to the plaint. This process is the reaction of amlodipine base with a solution of benzenesulfonic acid in an insert dilatants.
22. It is the plaintiffs case that it discovered this process of preparing the drug in question after spending millions of pounds in research and development etc. And hence their patent is a very valuable one, since it is only through the reaction of amlodipine base with a solution of benzenesulfonic acid that besylate salt of amlodipine can be obtained, which is then marketed by the plaintiff as Norvasc. The plaintiff has supported its claim by the expert opinions of two Doctors one from the United States and the other from the United Kingdom. On the other hand, the defendant contends that they have imported amlodipine besylate as a raw material from which it manufactures its own drug known as Sofvasc through a process which is entirely different from the plaintiffs.
23. ' A bare perusal of the defendants leaflet contained in its carton would belie the above contention since it is no uncertain terms stated therein that each tablet of the defendants drug known as Sofvasc contains amlodipine besylate. So also it would be seen that the said leaflet more or less copies the leaflet contained in the plaintiffs carton as to description, indication, adverse reaction etc. It would also be seen that according to the expert's opinion, the process used for manufacturing amlodipine besylate, which admittedly the defendants are marketing in Pakistan can only be as developed by the plaintiffs. The defendant has not been able to show, on the other hand, as to how its process of manufacture differs from that of the plaintiff. Prima facie, therefore, I am of the view that the plaintiffs have made out a case for the grant of a temporary injunction as the balance of convenience also favour the plaintiffs who have perhaps spent huge amounts in research and development of their drug. Finally, I am of the view that mere registration of the defendant with the Government of Pakistan as a licensed importer of drugs would not entitle it to manufacture and market any drug where it appears that this is an infringement of an existing patent owned by another person/company. Consequently, for the foregoing reason, in my view, it appears at this stage that the defendants drug known as Sofvasc containing amlodipine besylate has been manufactured through the process patented by the plaintiff and as such is an infringement of such process. Consequently, this application is allowed and the defendant is restrained from manufacturing, importing, marketing and 'selling their drug known as Sofvasc containing amlodipine besylate or any composition thereof till the decision of the suit.