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J. Miscellaneous Application No. 2 of 1983, decided on 9th April, 1983.
-- O. XXXIX, r. 4 read with Contract Act (IX of 1872), Ss. 5 & 6 and Evidence Act (I of 1872), S. 115-Stay of pending suit -Direction to file monthly statements of account during such stay Order of stay of pending suit for infringement of trade mark not incorporating applicants' offer to file monthly statements of account in Court-Respondents praying inter alia for issuance of direction to applicants to file monthly statements of income-Held, such direction could be given while ordering stay of pending suit for infringement of trade mark-field further, applicants trying to take advantage of omission to incorporate such direction in stay order and they cannot be permitted to resile from their own offer.
A. R. Ganga Dhara & Co., Nirmal and another v. Firm of Police, Mullahar, Rajeshwar & Co. and others A I R 1962 Andh. Pra. 510 ref.
A. A. Zari for Petitioner.
Sohail Muzaffar for Respondent.
Date of hearing : 6th April, 1983.
The respondent has moved an application under Order XXXIX, rules 1 and 2, C. P. C. (C. M. A. No. 780 of 1983 praying therein for issuance of injunction to restrain the applicant from advertising, marketing, selling and manufacturing their goods in the name of "Brits Sun" on the plea that the applicants are taking undue advant age of the order of this Court passed on 13th February, 1983. It has been further prayed that applicants be also restrained from using the said order as a licence to start unfair competition and pass off their goods in the market using the name of the respondent.
2. The respondent has also moved an application under Order XXXIX rule 4, C. P. C. (C. M. A. No. 781/83) praying therein to vary the order passed on 13th February. 1983 to the extent that the applicants be restrained from selling, marketing, advertising and manufacturing the products under the name "Brits Sun" pending the decision on the main application and further for appointment of a receiver and for direction to the applicants to file monthly statements of income.
3. I have heard the learned counsel for the parties at length and considered the arguments advanced by them. I however find that it is not necessary to deal with all the questions which were raised at the time of hearing of these two applications in view of the statement made by Mr. Sohail Muzaffar, learned counsel for the respondent that he 'would not press these applications in case the applicants are directed to file monthly statements of account of their income with the Nazir of this Court. Mr. Zari, learned counsel for the applicants, however, opposed this request made by the Advocate for the respondents.
4. After considering the various aspects of the case which pursuaded me to pass the order on 13th February, 1983,1 find that the proposal made by the learned counsel for the respondent is reasonable. In fact when pointed out to Mr. Zari, the learned counsel for the applicants, that during the arguments on C. M. A. 181/83 it was he who had made the offer that the applicants were prepared to file monthly statements of account in Court so that the interest of the respondents be protected if ultimately they succeed, he .was unable to give any cogent reason why such a direction be not given now. Indeed I find that such direction could be given by the Court while passing the order on an interlocutary application for the stay of pending suit for infringement until the disposal of the petition for rectification of the Registrar of Trade Marks. Reference, if required, be made to the case of A. R. Gangs Dhara & Ca., Nirmal and another v. Firm of Police, Mullahar, Rajeshwar & Co., and others (A I R 1962 Andh. Pra. 510). Mr. Zari the learned Advocate, however, submitted that the offer was made by him during the arguments on the earlier application and that at this stage the respondents cannot claim any such direction from the Court.
In my opinion the petitioners are trying to take advantage of an, omission in incorporating the direction in the order dated 13th February, 1983 in accordance with their own offer and that in equity and interest of justice, they cannot be permitted to resile from the tame.
5. I accordingly direct the applicants to submit monthly statements of account of the transaction in respect of goods sold by the applicants under the mark "Brits Sun" with the Nazir of this Court till the final disposal of this petition.
5. The applications were disposed of by short order passed on 6th April, 1983. The above are the reasons for the same.
K. M. A. Direction issued.
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