1. ' The plaintiff, Messrs Asian Food Industries Limited, instituted this suit against the defendant, Messrs Ismail Industries Limited, for permanent injunction, damage's and rendition of accounts. The defendants filed C.M.A. No,6369 of 2002 under Order 2, rule 2, C.P.C. Read with section 151 thereof, praying for dismissal of the suit on the ground that the plaintiffs have intentionally omitted to sue for all the reliefs arising out of the same cause of action and thus cannot be permitted to claim the same or other relief in this suit. The defendants also filed C.M.A. No,6370 of 2002 under Order VII, rule 11, C.P.C. Read with section 151, C.P.C., for rejection of the plaint in the suit on the ground that no fresh cause of action accrued to the plaintiffs and that the law also bars the present suit. The defendants filed yet another application under section 10, C.P.C., being C.M.A. No,6371 of 2002, for stay of proceedings in this suit as issues in this suit are directly and substantially same as in previous Suit No,5 of 2002 between the same parties.
2. ' Brief facts of the case are, that plaintiffs claim to be manufacturers, sellers and suppliers of candies, toffees, bubble gums, and like products since 1968 for which they are using different trademarks including "Mayfair". They spent a huge amount on the promotion of their products. In the year 2001, the plaintiffs introduced "Deposit Candy" with a unique swirl design and get-up under Trade Mark "Creamers". When the plaintiffs came to know that the defendants are also manufacturing a product by using identical and deceptively similar candy design, pattern and the swirl, in a manner likely to infringe the vested rights of the plaintiff, they filed a suit wherein an application under Order XXXIX, rules 1 and 2, C.P.C., for grant of temporary injunction which was disallowed against which an appeal is pending before this Court. This suit was filed on 10-9-2002.
3. For seeking interim relief, the plaintiffs moved C.M.A. No,6173 of 2002, under Order XXXIX, rules 1 and 2, C.P.C., read with section 151, C.P.C.
4. ' The learned counsel submits that "Mayfair" is the house mark of the plaintiffs since 1969 and is registered with Trade Marks Registry, Government of Pakistan as well as Central Copy Right Office, Karachi. They have filed Annexures "B/1 to B/9" to support their claim. In addition to above, according to the counsel for the plaintiffs, 18 applications for trademarks are pending, copies whereof have been filed as Annexures "C/1 to C/18". The plaintiffs, in the year 2001, introduced a candy under its Trade Mark "CREAMERS" in conjunction with the House Mark "MAYFAIR" in different flavours, for which applications were made for registration of trademarks as well as copyright.
5. Through extensive publicity campaign the products of the plaintiff under the trademarks became known and recognized throughout the country to be products of the plaintiff only. The plaintiff, from April, 2001 to August, 2001, spent a huge amount of Rs,711,738 to develop, promote and publicize its product Mayfair Creamer. In addition to this, the plaintiff spent a sum of Rs,14,259,421 on promotional activities on the electronic media with corresponding sales of Rs,290 million since April, 2001 to July, 2002.
6. ' The defendants have filed counter-affidavit to the application under Order XXXIX, rules 1 and 2, C.P.C., filed by the plaintiffs. Learned counsel for the defendants submits that for the first time in Pakistan, the defendants launched a deposit candy by the name of "Candyland Butter Scotch" in 1998. Thereafter, the defendants procured latest machinery/plant to manufacture twin colour candies with swirl/stripes design, prepared a wrapper in December, 1999 and applied for Trade Mark Beri-O on 1-1-2000. This trade mark was accepted by the Trade Marks Registry, copies whereof have been filed as Annexures "A, A-1 and A-2" to the counter-affidavit. The defendants have also filed Sales Tax Invoice showing that Beri-O was on sale in the month of February, 2002 while this suit was presented on 10-9-2002 and the suit before the Additional District Judge was filed on 1-3-2002. It is also submitted that the defendants' outer bag and wrapper are not deceptively similar to the plaintiffs' outer bag and wrapper and are totally different. He also contended that the device of any fruit on the wrapper/label can be used by any trader as it is not restricted. In the same manner, no one can monopolise the use of the swirl design of candy. As such no question of any damage to the goodwill of the plaintiffs arises.
7. ' It is an admitted fact that both the parties to this suit are leading manufacturers of candies, toffees and such other products. A perusal of the two opposing products reveals that the wrappers are absolutely different. It is also not the case that a similar and confusing trade mark is being used by the defendants to deceive unwary buyer. The boxes clearly show that both the parties have mentioned their respective, and distinct, trade, namely, Mayfair and Candyland.
8. ' In support of the application under Order II, rule 2, C.P.C., and the application under Order VII, rule 11, C.P.C., learned counsel for the defendants submitted that the suit is not maintainable as on the same cause of action, the plaintiffs have filed an earlier suit, bearing No,5 of 2002 in the Court of First Additional District Judge, Karachi East wherein the plaintiffs filed an application for stay. The application was dismissed against which an appeal has been filed and is pending. Since the suit before the Additional District Judge, Karachi East was filed in March, 2002, therefore, it cannot be said that suit was for preventive measures as at that very time he objected to product was already available in market. Therefore, all the prayers such as permanent injunction, damages and rendition of accounts should have been made in that suit.
9. ' In view of the above as the claim was omitted by the plaintiffs in their earlier Suit No,5 of 2002, and the interim relief was refused, this suit is filed praying for interim relief again which cannot be made subject-matter in this subsequent suit as it is based on the same cause of action. Splitting of claims arising out of the same cause of action, as stated in the prayer, is not permissible as a party cannot be vexed twice for the same cause of action. Reliance is placed on the cases of M.K. Abbasi v. United Bank Ltd. 1983 CLC 482, Muhammad Khalil Khan and others v. Mahboob Ali Mian and others PLD 1948 PC 131, Abdul Hakim v. Saadullah Khan PLD 1970 SC 63. Accordingly, this suit is hit by provisions of Order II, rule 2. Therefore, C.M.A. No,6369 of 2002 is allowed and this suit is consequently dismissed alongwith the remaining listed application.