1. ' S. ALI ASLAM JAFRI, J.--The facts giving rise to the filing of this appeal are short and simple. Suit No,855 of 1994 for permanent injunction, Mandatory Injunction, Accounts and Damages was filed by the appellant/plaintiff against respondents/defendants on 21-12-1994. The case of the plaintiff as disclosed in the plaint is that the plaintiff-Company through their predecessor-in-business namely M/ s. Chloride Group PLC London, England and Exide Trade Marks Ltd. Isle of Man are renowned manufacturers and merchants of Batteries of all types and parts thereof for a long time in Pakistan. In order to distinguish their said product from other manufacturers and merchants in the same field, M/s. Chloride Group PLC London had obtained a registration of their trade mark as "Chloride" for Electric Accumulators (Batteries) in 1942 in India and after partition of India they also obtained subsequent registration in Pakistan in the year 1951.
2. ' It is the case of the plaintiff that by virtue of continuous use, huge sale and publicity since 1942, the said registered trade mark "Chloride" has become very popular for Electric Accumulators (Batteries), parts thereof and other goods covered by said Registration No,6847 in the market of Pakistan and have acquired great goodwill and reputation for high standard and quality of their said products. In the year 1989 the plaintiff-Company was again appointed/registered as users of marks "Chloride and Exide". The said change was registerea with the Registrar of Trade Marks, Government of Pakistan, Karachi, and also with Assistant Registrar of Joint Stock Companies, Karachi.' The plaintiff claims to have acquired valuable goodwill and reputation residing in the said popular mark/name.
3. ' Through a publication which appeared in daily Jang", Karachi dated 9-8-1993 and/or through plaintiffs dealers it came to the knowledge of the plaintiff that defendant/respondent No,1 in collusion with respondents/ defendants Nos,2, 3 and 4 have illegally started advertising, manufacturing and selling in the markets of Karachi and other parts of Pakistan, Electric Accumulators (Batteries) bearing trade mark/word "Chloride Volta". Due to close similarity of the said mark of defendant No,1 with that of the plaintiff, lot of confusion and deception is being caused amongst unwary purchases as to source of origin of said counterfeit goods being sold fraudulently and dishonestly by the defendant No,1 as those of plaintiff-Company under its said registered mark "CHLORIDE". The plaintiff, therefore, filed a suit praying therein for Permanent Injunction, Mandatory Injunction, Accounts and damages tentatively assessed at Rs,500,00,000. An application under Order XXXIX, rules 1 and 2 C.P.C. Was also filed alongwith the suit seeking interim injunction A against the defendants/respondents restraining them from manufacturing, selling and advertising electric accumulators (batteries) of all types under the infringing mark "CHLORIDE VOLTA" or from using the word mark/name "chloride" independently or in conjunction with any other word till pending decision of the suit.
4. ' The defendant No,1 filed counter-affidavit controverting the claim of the plaintiff and placed on record certain documents in support of its contention that the plaintiff or its predecessor-in- interest had abandoned the use of the word "Chloride" w,e,f, 18-9-1988. It was further pleaded that the word "Chloride" is mentioned on the cover/carton of the batteries of defendant No,1 to show that the same are manufactured in collaboration with the original company. It has been argued that it has been specifically mentioned on such cartons that batteries are being manufactured in collaboration with "Chloride" IBL England and that it is the usual practice in the market as such there is no question of any infringements of the trade mark of the plaintiff. It was further pleaded that plaintiff is not entitled to grant of injunction as the plaintiff has already assessed the amount of damages and mentioned the same in the plaint. The loss, if any, is therefore ascertainable in terms of money. The relief for grant of temporary injunction was also resisted on the ground that as per its own pleadings the case of the plaintiff suffers from laches. Despite having acquired the knowledge of alleged infringements on 8-9-1993 (para.14 of the plaint) the suit was instituted on 21-12-1994 i,e, about 16 months thereafter hence the plaintiff cannot claim equitable relief of injunction under the circumstances of the case. Other allegations made in the plaint have also been controverted and denied by way of filing affidavit to which the plaintiff has filed affidavit-in- rejoinder.
5. ' After hearing the learned counsel for the parties and examining the material available on record and while placing reliance on the case of Formica Corporation v. Pakistan Formica Ltd. (1989 SCM R 361), the learned Single Judge came to the conclusion that there is no prima facie case in favour of the plaintiff who has failed to show that its case attracts the test laid down in the above-cited case to enforce its rights to a trade mark. The learned Single Judge while applying the said test came to the conclusion that the plaintiff has also failed to show as to whether the defendant No,1 has deceived the public into thinking the products as those of the plaintiff or the public B is likely to believe the same, specially when the plaintiff had given up the user of the said word, and "Chloride"
6. IBL had entered into such agreement with the defendant. Suit was also found to be suffering from laches. The other ground which prevailed with the learned Single Judge for refusing to grant injunction is that the plaintiff has already prayed for damages hence where a party could be compensated monetarily, such loss could not be described to be irreparable. Reliance was placed on the case of M/s. Younus Metal Works v. Younus Electrical Industries Ltd. (1988 CLC 1111).
7. ' We have heard the learned counsel for the parties and with their able assistance examined the record. Mr. Nadeem Akhtar learned counsel for the respondent/ defendant No,1 at the very outset has argued that apart from the weighty reasons advanced by the learned Single Judge declining to grant injunction, this appeal has virtually become infructuous as the impugned order was announced by the learned Single Judge on 4-1-1995 followed by reasons recorded on 24-4-1995.
8. While admitting this appeal on 21-11-1996 no interim relief was granted to the appellant and even after filing of this appeal the defendant/respondent No,1 has been using the said trade mark continuously. According to the learned counsel it shows that the appellant is not seriously interested for the interim relief which is an equitable relief. According to Mr. Nadeem Akhtar if the appellant would have been serious in pursuing its case, the suit would have been decided one way or the other by now, as such, on this spore alone this appeal has lost its importance and is liable to be dismissed having become infructuous.
9. ' Mr. Khalil Kazilbash learned counsel for the appellant has not disputed the fact that at the time of admission of this appeal on 21-11-1996 he had agreed not to press for stay. However, he has argued that it was done in view of the fact that the appeal was likely to proceed at an early date but the other side/respondents/defendants,: went on seeking time and did not proceed with this appeal.
10. We may observe here that no efforts appear to have been taken on the part of appellant either for early disposal of the appeal, objecting to the adjournments or making any other application for grant of interim relief since after 21-11-1996 till today particularly when more than six years have passed and the appeal is at the same stage when it was filed. It' shows no urgency in the matter and no justification for grant of interim relief by way of a restraint order. While granting or refusing of an equitable relief the Court has to take into consideration the conduct of the parties as well. On merits also we do not feel inclined to exercise our discretion at this stage in favour of the appellant/plaintiff as under the circumstances, neither there appears to be a prima facie case in favour of the appellant nor the balance of convenience. As already discussed above no irreparable loss is likely to be caused as the plaintiff has already claimed damages and assessed the alleged loss in terms of money.
11. ' Resultantly, this appeal is dismissed, however, with no orders as to costs. The respondents/defendants should cooperate with appellant/plaintiff for disposal of the suit at the earliest pending before the learned Single Judge. These are the reasons for the short order announced on 17-1-2003.