KOHINOOR SOAP AND DETERGENTS (PRIVATE) LTD. Versus BASRA SOAP FACTORY

ORDER

1. C.M.A. No.9722 of 1998 is an application filed by the plaintiff under Order 39, rules 1 and 2, C.P.C. read with section 56 of the Copyrights Ordinance, 1962, praying that the defendants be restrained from removing and selling the goods which have been manufactured by them viz. Soap Cakes under brand name of 'Hari' and also praying that an inventory be prepared by the Nazir of such goods. On the other hand C.M.A. No.11299 of 1998 has been filed on behalf of the defendants under Order 39, rule 4, C.P.C. praying that injunction order dated 3‑11‑1998 which was subsequently confirmed on 11‑11‑1998 be recalled which was passed in C.M.A. No.9538 of 1998 restraining the defendants from causing the trade mark/brand name 'Hart' or any other similar name on their Soap Cakes and also from using such brand name on the cartons in which these Soap Cakes are packed.

2. The brief facts of the matter as set out in the plaint are that the plaintiff being private limited company are engaged in the business of soap manufacturing and marketing since its incorporation in the year 1973 and in addition to other well‑known trade marks also adopted a trade mark/label design called 'Hart' for their products. In pursuance of such manufacturing process the plaintiff applied to the Registrar of Trade Marks for registration of the said trade marks vide application dated 8‑11‑1988 which was allotted No.100387 in Class 3. It has been further stated that the said trade marks is in the exclusive use of the plaintiff from the year 1984 and since then large quantities of washing/laundry soap under the trade mark 'Hari' have been manufactured and sold by the plaintiff in Pakistan. Reliance is made on a copy of the application filed with the Registrar of Trade Marks alongwith a copy of the Soap Cake itself on which mark 'Hari' has been embossed which has been filed as Annexures 'B' to 'B/2' to the Plaint. It has further been stated that vide Annexures 'C' to 'C/ 1' to the plaint that the plaintiff has also registered with the Registrar of Copyrights a label depicting the word 'Hari' for their use on 26‑2‑1997. Whereby it is apparent that the said artistic design depicting trade name 'Hari' was registered on 26‑2‑1997 with the Registrar of Copyrights . It has been averred that due to continuous use over the years of the said trade mark/name 'Hari' a handsome reputation and valuable goodwill has accrued to the plaintiffs in Pakistan and as a result the trade mark 'Hari' signifies to the general public as well as to the trade at large a quality washing soap in the country that is associated exclusively with the plaintiff. In support of this contention the plaintiff has relied upon original affidavits sworn by various persons from Karachi, Hyderabad, Mirpur Khas and Nawabshah wherein it has been stated that the trade mark 'Hart' is solely relatable to washing/laundry soap manufactured by the plaintiff. So also from the year 1985 the plaintiffs have submitted that their sales have been in the region of Rs.578,908,871 whereas they have spent Rs.2,448.102 for promoting sales of their products as per the statement of their Auditors, copy of which has been filed as Annexure 'E' to the plaint.

3. It has next been contended by the plaintiff that the defendants malafidely in order to avail of the market leadership and goodwill of the plaintiff as regards their products carrying trade mark/name 'Hari' applied to the Registrar of Trade Marks vide Application No.100387 dated 8‑11‑1988 for registration of their trade marks known as 'Kissan Soap' in English and used the word 'Hari' in Urdu in order to create confusion and deception amongst the trade and purchasing public. A, copy of such label annexed by the defendants with their application has been filed as Annexure 'F' to the plaint. So also the defendants filed two applications with the Registrar of Copyrights both dated 9‑10‑1997 for registration of their label depicting trade mark 'Hart', 'Kissan' and 'Halari' washing soap a copy of which has been filed as Annexures 'G' to G./3' to the plaint to which the plaintiff filed an opposition.

4. Thereafter, the defendants filed Rectification Applications Nos.26 and 27 of 1997 both dated 14‑10‑1997 with the Copyright Board against the registration of the plaintiffs artistic work. In reply it has been alleged by the plaintiff that they are using trade mark 'Hart' since 1991 whereas in their own application they have alleged such use since 1994. Copy of certification applications have been filed as Annexures 'H' to 'H/ 1' to the plaint. Finally the defendants on 1‑12‑1996 submitted Form T.M. 16 before the Registrar of Trade Marks for substituting and replacing the label 'Kissan Soap' with an altogether different label 'Hari Sabun' which closely resembles that of the plaintiffs. As a result thereof it has been contended that the trade and purchasing public would be further confused and misled as to the origin of the goods and/or as to the business connections between the plaintiffs and defendants. This rectification was allowed by the Registrar of Trade Marks on 1‑12‑1996 as per copy of T.M. 16 filed as Annexure 'I' to the plaint.

5. In view of the aforesaid facts and circumstances it has been alleged in the plaint that defendants are passing off their own trade mark and label design for that of the plaintiff to the latter's detriment as confusion has been caused in the mind of the trade and purchasing public alike. It has been further averred that in fact the defendants have attempted to misappropriate the trade mark Registration No.22315 which belonged to another firm of the same name as defendant No.1 viz. Basra Soap Factory and is depicated as 'Hart' and 'Kissan'. The partners of the said firm namely Abdullah Latif, Abdul Ghana Haji Umer, Ghaffar Latif and Haji Ashraf Abdullah have their factory and office at No.6, Chandanmukhi Street, Building No.74, Karachi. It has been further stated that the said trade mark had been abandoned by their previous owners and its registration expired as of July 31, 1991 and in spite of notice issued by the Registrar and subsequent advertisement in Trade Marks Journal No.515 for the month of December 1993 the registration of the said Trade Mark No.22315 had not been renewed for over five years. However. on 16‑9‑1996 Form T.M. 12 and Form T.M. 13 was filed with the Registrar making a request for the restoration of this Trade Mark No.22315 as the owners thereof were out of station. This, per the plaintiff, is totally mala fide since firstly when such trade mark had been abondoned by the previous owners the defendants could not apply for any restoration and secondly the label adopted by the defendants is all together different than that registered under No.22315. Despite this fact the Registrar of Trade Marks renewed Trade Mark No.22315 in total violation of the provisions of rule 49(2) of the Revised Trade Marks Rules, 1963. Reliance has been made upon a copy of a Certificate Extract of the Register in respect of Trade Mark 22315 in Class 3 alongwith its label showing names of the actual purported owners of the mark and copy of the label which recently appeared on the carton of the defendants alongwith the design etc. on Soap Cakes used by the defendants. Which are filed as Annexures 'J' 'K' and 'K‑1' respectively to the plaint. Similarly a copy of label embossed on the defendants soap case 'Halari' is filed as Annexure 'K‑2' to the plaint.

6. It has consequently been averred by the plaintiff that use of the Trade Mark 'Hari' and other similar Trade Marks viz: 'Halari' etc., by the defendants has caused immense damage to the goodwill and market reputation of the plaintiff which have been associated with such Trade Mark since 1984 and consequently damages in the sum of Rs.20 Million have been claimed against the defendants. So also a declaration has been sought against the defendants restraining them from using the Trade Mark 'Hari' on any of their products as well as not to use any artistic work which resembles or is similar to the plaintiffs mark viz. Hari. Similarly a permanent injunction has been sought against the defendants in the foregoing terms and so also it has been prayed that the Nazir of this Court be directed to take accounts of the goods so far manufactured and marketed by the defendants under the name of 'Hari' or 'Halari' etc.

7. In the written statement filed by the defendants it has been submitted firstly that the defendants Nos.2 to 5 are the present partners of the firm known as Basra Soap Factory which was duly registered in 1956 with the Registrar of Firms. Karachi, and also they are registered proprietors of Trade Marks 'Hari' and Kissan' meaning peasant in Sindhi and Urdu language respectively. A copy of the Registration Certificate showing original partners of defendant No.1 firm as Abdullah Abdul Latif and Haji Abdullah Ashraf as Annexure 'A/ 1' to the affidavit filed with C.M.A. No.11290 of 1999 has been relied upon. Thereafter. as per Annexure 'A/2' to the said affidavit the firm was reconstituted on the death of Abdullah Abdul Latif when Haji Rafique son of late Haji Abdullah and Mst. Zaitoon d/o late Haji Abdullah joined the firm on 16‑11‑1973 as per Annexure A/4 to the said affidavit which is also a certificate obtained from the Registrar of Firms. Again Arif son of Haji Abdullah and Mst. Zaitoon retired on 31‑12‑1986 and Muhammad Altaf son of Haji Ashraf and Mrs. Najma Rafiq wife of Haji Rafiq both joined on 1‑1‑1987. Various partnership deeds have been placed on the record to show the changes in the partnership.

8. The defendants have also relied upon certain documents filed alongwith the written statement viz. Annexures X/4, X/5, X/6, X/7 and X/8. which are the notices renewals of their Trade Mark No.22315, which is the bone of contention in the matter. So also affidavits of some Customers of defendant No. l Firm have been filed alongwith the written statement whereby the deponents thereof have sworn that they have been purchasing Hart Soap as well as Halari Soap from defendant No. l for the last so many years. Similarly, receipts and invoices have been filed alongwith the written statement depicting the sales of Hari Soap to various customers which have been filed an Annexures B/ 1 to B/66. As per Annexure A/ 12 to the affidavit, the Registrar had served a notice to the defendant No.1's Firm to the effect that their trade mark had been removed from the Register for non‑payment of renewal fee on 15‑11‑1995 to which Form T.M. 13 was filed by defendant No. l on 9‑9‑1996 whereafter the trade mark was restored on the Register which was renewed for a period of 15 years from 13‑7‑1991. Annexure A/ 14 is the Certificate from the Trade Mark Registry depicting that the Trade Mark No.22315 dated 31‑7‑1954 in Class 3 has been renewed for a period of 15 years with effect from 31‑7‑1991: The said Certificate is dated 7‑10‑1996. Consequently, it has been submitted by the defendants that in the face of the existing trade mark duly registered with the Registrar, it is in fact the plaintiffs who have malafidely used the defendant No.1's mark and it is they who were causing loss to the defendants and in such circumstances the interim stay granted to the plaintiffs should be vacated and C.M.A. 9722 of 1998 be dismissed in favour of the defendants.

9. On the basis of the above pleadings Mr. Kahlil Kizilbash, Advocate for the defendants has submitted firstly that the firm name viz. Basra Soap Factory has remained unchanged since the year 1954 when the Firm was first registered and also that its registered trade mark viz. 'Hari Kissan' bearing No.22315 still exists as of today. In this connection he has referred to Annexures 'A/ 1 to A/4' filed alongwith the affidavit to C.M.A. No. 11299 of 1998 which are the record from the Registrar of Firms depicting the original partners of the firm and various changes thereto up to the present time. He has also referred to Annexures 'A/6 and A/7' which are the partnership deeds reflecting the changes in the partnership firm and which can be co‑related to the record of the Registrar of Firms. In this connection he has also referred to Annexure 'A/5' to the affidavit which is a partnership agreement between Abdullah Abdul Latif, Abdullah Haji Latif. Abdul Ghani Latif and Haji Ashraf Abdullah dated 9‑4‑1954. Thereafter, Annexure 'A/7' is a deed of dissolution of partnership between the foregoing persons which is dated 1‑8‑1955 and correspondingly Annexure 'A'/8' dated 17‑9‑1955 is another partnership deed between Adamjee Latif Godal and Abdullah Abdul Latif pursuant to the purchase by Abdullah Abdul Latif, of the goodwill and undertaking of the partnership from Abdullah Abdul Latif, Abdul Ghani, Haji Umar, Adamjee Latif Godal and Haji Ashraf Abdullah dated 1‑8‑1955. As per learned counsel the partnership between Adamjee Latif Godal and Abdullah Abdul Latif was dissolved vide deed of Dissolution Annexure A/9 dated 30‑3‑1956 which left Abdullah Abdul Latif as sole proprietor of the partnership including the goodwill, stock‑in‑trade, machinery, goods trade mark, trade names, furnitures, fixtures and tenancy rights whereafter on 1‑5‑1956 Abdullah Abdul Latif again entered into a partnership agreement with Haji Ashraf Abdullah per Annexure A/10 to the affidavit and per Annexure A/11 they took another partner Arif Haji Abdullah vide partnership deed dated 2‑4‑1958. Similarly per Annexure A/ 11(a), dated 16‑11‑1973 Mst. Zaitoon daughter of late Haji Abdullah and Haji Rafiq son of Haji Abdullah were taken on as partners upon the death of Abdullah Abdul Latif on 15‑11‑1973. Finally Annexure A/ 11 (b) to the affidavit is a deed of retirement whereby Arif Haji Abdullah and Mst. Zaitoon retired from the partnership on 1‑1‑1987 and on the same day Altaf son of Haji Ashraf and Mst. Najma wife of Haji Rafiq entered into a partnership agreement alongwith remaining partners Haji Ashraf and Haji Rafiq copy of which has been filed as Annexure 'A/ 11(c).

10. Consequently in view of the foregoing documentation on the record learned counsel has submitted that defendant No. l partnership is continuing right from its inception in 1954 and that the present partners are in fact the proprietors of the good‑will, stock- in‑trade, machinery, factory, fittings and fixtures, trade marks and trade name which belonged to the original partnership and in this respect has invited my attention to Annexure 'A/6' which is an agreement entered into between Abdullah Abdul Latif, Abdul Ghani Haji Umar, Adamjee Latif Godal dated 1‑8‑1955 whereby Adamjee Latif Godal had purchased the partnership. goodwill, fixtures, fittings, machinery and all other rights attached to Basra Soap Factory (excluding stock‑in‑trade) for a lump sum of Rs.40,000. Consequently learned counsel has submitted that vide such purchase including purchase of trade mark and trade names etc. the present partners are the owners of registered Trade Mark No.22315 viz. 'Kissan Hari Soap'. The said trade mark was registered on 2‑7‑1960 vide Annexure X‑4 to the plaint. Learned counsel further referred to Annexures X‑5, X‑6, X‑7 and X‑8 to the plaint which are the applications for the renewal of the trade mark right up to the year 1991. Thereafter, per the learned counsel a notice was received from the Trade Mark Registry dated 2‑8‑1996 informing the defendants that the Trade Mark No.22315 in class 33 has been struck off from the Register for non‑payment of renewal fee with effect from 15‑11‑1995. In response Form T.M.13 dated 9‑9‑1996 was filed by the defendants through their counsel M/s. Ali & Associates requesting for restoration of the trade mark which was allowed vide letter 10‑10‑1996 received from the Registrar of per Annexure A/ 13 to the affidavit. He has also referred to Annexure A/ 14 to the affidavit, which is Form T. M . R.3 whereby the trade mark was renewed for a period of 15 years from 31‑7‑1991. He has also referred to Annexure A/ 15, which is a Certificate of Renewal of the Trade Mark in the name of Basra Soap Factory. In support of his contentions learned counsel has relied upon: M/s. Kissan Industries v. M/s. Punjab Food Corporation (AIR 1983 Delhi 387), Abinash Chandra v. Madhusundan (AIR 1952 Cal. 673), Muhammad Zaman Sahib v. Fatimunnisa (AIR 1960 Mad. 60), Calmic Ltd. v. Registrar of Trade Mark (1985 CLC 2063). Blighty Industries Association Ltd. v. The Scottish Home Industries Association (44 RPC 269), Abdullah Saeed v. Cannon Rubber Ltd. (1987 MLD 2583), Hindustan Lever Ltd. v. Bombay Soda Factory (AIR 1963 Mysoor 173) and Ihlee v. Henshaw (3 RPC 15).

11. Learned counsel has further submitted that the suit in itself is not maintainable inasmuch as it is based upon a mere application for registration of the plaintiffs trade mark vide Annexure 'B' to the plaint which is subject- matter of opposition No.203 of 1998 filed as Annexure 'A/20' to the affidavit accompanying the defendants application C.M.A. No.9722 of 1998. He has further pointed that the order dated 3‑11‑1998 whereby interim stay was confirmed in this matter and it was observed that Annexure 'B' is a copy of Certificate regarding plaintiffs registered trade mark in fact is a wrong observation and consequently the injunction granted on a wrong assumption should be vacated and as much is readily apparent from the perusal of Annexure 'B' to the plaint which is a copy of application and Annexure 'J' to the plaint which is the defendant's Certificate referred to in para. 15 of the plaint. He has further submitted that the plaintiffs trade mark appearing in Annexure 'B/ 1' to the plaint and defendants trade mark per Annexure 'J' are poles apart. Learned counsel has referred to section 21 of the Trade Marks Act which empowers a person to exclusively use its trade mark and section 20 which bars a suit by an unregistered proprietor of a trade mark. Learned counsel has further referred to section 25 of the Trade Marks Act which provides for evidence etc. as regards a registered trade mark and in this connection Annexure 'A/22' to the affidavit is conclusive since this is an extract from the Register of Trade Mark evidencing Haji Abdullah Latif, Haji Rafiq, Mst. Najma Begum as the owners of their trade mark w.e.f. 12‑12‑1992. This position is also recorded in Annexures 'A/ 1 to A/4' to the affidavit, which are the Certificates issued by the Registrar of Firms. In support of this submission learned counsel has relied upon the following case‑law: J.N. Nicholas (Vimto) PLC v. Mehran Bottlers (Pvt.) Ltd. (1996 MLD 1203), Azra Jawed v. Jamshed Alam Khan (1996 MLD 1203), Coopers Inc. v. Pakistan General Stores (1981 SCMR 1039), Prince Rubber Ind. v. K.S. Rubber Industries (1983 PTC 83), Cartrer & Parker Ltd. v. Scotia Wools Ltd. (1960 RPC 206), In the Matter of the Magenta Time Co. Ltd. Trade Mark (44 RPC 169). Prem Singh v. Ceem Auto Industries (AIR 1990 Delhi 233), Societe de Fabrication et de Distribution de Perfumenie v. Deputy Registrar of Trade Marks (PLD 1979 Karachi 83), Hawtin (E.V.) Ltd. v. Hawtin (John F) & Coy Ltd. (1960 RPC 95), Dolphin Laboratories Ltd. v. Kaptab Pharmaceuticals Ltd. (AIR 1981 Cal. 76), Shri Swaran Singh v. M/s. Usha Industries (AIR 1986 Delhi 343), P.M. Dissels (Pvt.) Ltd. v. Thukral Mechanical Works (AIR 1988 Delhi 282), G.T.C. Industries v. I.T.C. Ltd. (AIR 1992 Mad. 252), George Balantyne Ltd. v. Balantyne Stewart (1959 RPC 273).

12. Learned counsel has further submitted that apart from the trade mark "hari" the defendant has also been using "hla ri" since 1955 but the application for the same was moved in 1992 for registration of the said trade mark which is still in process as per copy filed as Annexure A/ 19 to the affidavit.

13. Finally learned counsel has also submitted that the defendants were entitled to file C.M.A. No. 11299 of 1998 under Order 39, rule 4, C.P.C., for recall for the ex parte injunction order since the said order was based on an incorrect appreciation of facts viz. that the plaintiff was the registered owner of trade mark 'Hari', whereas actually only an application had been filed with the Registrar. So also per learned counsel, the fact that an appeal against the ex parte order was time‑barred is no reason to hold that the subject application was not maintainable. In support of this proposition, learned counsel has relied upon Shahnawaz Ltd. v. Khawaja Auto Cars Ltd. (PLD 1979 Kar. 387), Muhammad Yusuf v. Sabira A. Muhammad (1990 C LC 1 127), Nirmala Kanta v. Mulk Raj Kohli (AIR 1977 All 145), Amina Begum v. Ghulam Dastagir (PLD 1978 SC 220), Magnum Films Ltd.. v. Golcha Properties Ltd. (AIR 1983 Delhi 392), Meenakashi Amal v. Rama Ayyar (AIR 1928 Mad. 610), Amin v. Haji Abdul Sattar (1992 CLC 1428) and (PLD 1981 SC 108).

14. In reply Mr. Munawa, Ghani, learned counsel for the plaintiff has submitted that para. 3 of the plaintiff is very clear on the issue of status of the plaintiffs trade mark viz. plaintiffs have only filed an application for registration of the trade mark "Hari". Consequently learned counsel has submitted perhaps the order, dated 3‑11‑1998 inadvertently mentions that the plaintiffs are the registered owners of the trade mark in question.

15. As regards the trade mark in question which the defendants alleged belong to them viz. No.22318, the same was in the name of Abdullah Abdul Latif, Abdul Ghani Haji Umar, Abdul Ghaffar Latif and Haji Ashraf Abdullah and not in the partnership name viz. Basra Soap Factory. As per Annexure 'A/6' which is an agreement dated 1‑8‑1955 between Abdullah Abdul Latif. Abdul Ghani, Haji Umar. Ghaffar Latif Godal, Haji Ashraf and Adamjee Latif Godal the trade mark owned by the partners of Basra Soap Factory viz. the First four abovementioned persons was never sold to Abdullah Latif Godal and no deed of assignment of the trade mark was ever executed between the parties as contemplated under section 35 of the Trade Marks Act. Consequently per learned counsel the said trade mark never became the property of the Firm and as such cannot be claimed by the present partners viz. defendants Nos.2 to 5. In this regard learned counsel has referred to section 14 of the Partnership Act which defines the term property of a partnership firm to include all property and rights and interest in the stock of the firm or acquired by purchase or otherwise, by or from the firm, or for the purposes and in the case of the business of the firm, and includes also the good‑will of the business. He has relied upon Attaur Rehman v. Adam Ali (1981 CLC 1747). Khuda Bux v. S. Badrul Hasan (PLD 1981 Kar. 657) and Muhammad Ishaque v. Eros Theatre (PLD 1973 Kar. 522). Learned counsel has further contended that if all along the defendants claimed ownership in the trade mark in question than they should have long ago filed a suit against the plaintiffs for infringement. So also per learned counsel Annexure J to the plaint which is a certified copy of the Trade Mark No.22315 and issued to the plaintiff on 11‑11‑1997 still shows the original partners as the certified owners. Whereas in the latest Application No.118013 filed by the defendants for registration of the mark "Kissan (Hari)". present partners of the firm have been shown which does to show that the two entities which existed in 1954 and today are different concerns.

16. Next learned counsel has contended that Trade Mark No.22315 was not renewed by the owners after 1991 despite notice issued by the Registrar and as a result the said' trade mark was removed by the Registrar as of 31st July, 1991. Thereafter, a restoration application was moved of Form T.M. 13 on 16‑9‑1996 by the present partners /defendants which was unlawfully granted by the registrar in violation of rule 49(2) of the Revised Trade Marks Rules which only empowers him to condone the delay within one year of the expiration of the last registration subject to his satisfaction. For this proposition he has relied upon Karim Industries v. Nahan Foundry (1984 CLC 648).

17. Next learned counsel has argued that after the interim injunctions was confirmed vide order, dated 11‑11‑1998, the only remedy available to the defendants was to file an appeal against the said order and hence C.M.A. No.11299 of 1998 filed under Order 39, rule 4, C.P.C. for vacation of the order abovementioned was misconceived. In this connection he has submitted that per settled law, except in the event of changed circumstances a Court cannot sit in review of its own orders. He has relied upon the following cases in support of this proposition, Sindh Madarsatul Islam Board v. Shamim (1982 CLC 2242), Muhammad Yousuf v. Sabira A. Muhammad (1990 CLC 1127) and Engineering Products Ltd. v. S.I.T.E. (PLD 1997 Kar. 258).

18. Finally learned counsel has contended that the defendants were misconceived in arguing that the plaintiff had copied the latter trade mark. On the other hand the defendants had done so and consequently the plaintiffs were well within their rights to file the present suit for passing off. In support he has relied upon Unilever PLC v. R.B . Oil Industries (Pvt.) Ltd. (1999 MLD 1447), Rexona Proporietary Ltd. v. Majid Soap Works (PLD 1956 Sindh 1), General Sales and Trading v. Abdul Razzak (NLR 1961 UC 425), Abdul Jabbar v. Ahmad Jan (PLD 1973 Kar. 289) and Telephone Soap v. Lever Brothers (1994 CLC 2135).

19. In the circumstances learned counsel has prayed that C.M.As. Nos.9722 of 1998 be allowed and 11299 of 1998 be dismissed.

20. In reply Mr. Khalil Kizilbash has again reiterated as earlier argued that this suit cannot be filed merely on an application for registration of a trade mark since admittedly the plaintiff is not the registered user of the trade mark in question. The interim order obtained on such basis is patently defective and hence fit to be vacated in favor of the defendants. He has relied upon Meenakashi Amal v. Ram Aiyar for this proposition. Further, learned counsel has submitted that the validity of a trade mark cannot be challenged in an interim proceeding for which he has cited G.T.C. Industries v. I.T.C. Ltd. (supra) (AIR 1992 Mad. 253). Thirdly learned counsel has submitted where the two persons are proprietors of identifical trade marks none can be restrained from using the said trade mark and has relied upon P.M. Dissels (Pvt.) Ltd. v. Thukral Mechanical Works (supra). Finally learned counsel has produced certified copies of certain correspondence between the defendant, No.1 and the Registrar to establish that in fact all along the latter has treated the former as the proprietor of the trade mark in question.

21. As to the issue regarding vesting of the trade mark in Abdullah Latif Godal per Annexure 'A/6' to the affidavit accompanying C.M.A. No.9722 of 1999 learned counsel has relied upon section 14 of the Partnership Act which provides that all assets of the partnership are the joint property of the firm. Consequently learned counsel has submitted that vide Annexure 'A/6 which clearly provides that the running business of Basra Soap Factory alongwith machinery, good‑will, furniture, telephone and all other rights attached thereto (excluding stock in trade) was sold to the purchasers who later on formed a fresh partnership on the same day with the other person include the trade mark of the previous firm which is in continuous existence till today. He has again referred to various documents filed alongwith C.M.A. No.9722 of 1999 which would confirm that the partnership is existing right from its very inception and consequently the good‑will of the partnership which includes the trade mark etc., are intact which gives the defendants the right to use the trade mark in question exclusively.

22. Consequently learned counsel has prayed that C.M.A. No.9722 be dismissed whereas defendants application viz. C.M.A. No. 11299 of 1998 be allowed.

23. I have heard both the learned ‑ counsel and my conclusions are as follows:

24. The main controversy between the parties is whether the Trade Mark No.22315, which was registered in the names of Abdullah Latif, Abdul Ghani, Haji Umer. Ghaffar Latif and Haji Ashraf Abdullah, trading as Basra Soap Factory, Karachi. is the property of the defendants. An off shoot of this controversy is whether the said trade mark is owned by persons above‑named or by Basra Soap Factory. Reverting to the allied controversy first as to who is the owner of the trade mark in question. It would be seen that the term "partnership" has been defined in section 4 of the Partnership Act to mean the relationship between persons we have agreed to share the profits of a business carried on by all or any of them acting for all. Further, section 4 goes on to provide that persons who have entered into a partnership with one another are called individually "partners" and collectively "a firm" and the name under which their business is carried on is called the "firm name". In this context it would further be seen that per section 18 of the Act a partner is the agent of the firm for the purposes of the business of the firm and according to section 22 in order to bind a firm, an act or instrument done or executed by a partner or other person on behalf of the firm shall be done or executed in the firm name or in any other manner expressing or implying an intention to bind the firm. Finally section 14 of the Act defines the property of a firm to include all properties and rights and interests in property originally brought into the stock of the firm or acquired by purchase or otherwise by or for the firm or for the purposes and in the course of the business of the firm, and includes also the goodwill of the firm. This is subject of course to contract between .the partners inter se. It will also be worthwhile in this connection to examine the deed of the original partnership of the Basra Soap Factory as mentioned above which is dated 9‑4‑1954. The said deed describes the partnership name as M/s Basra Soap Factory and the partnership business to be that of inter alia manufacturers and dealers of soap and cotton textiles. A perusal of the foregoing provisions of the partnership is an undertaking between two or more persons for a common objective viz. the sharing of the profits of a business and that each partner is an agent of the firm. So also the property of the firm includes all the properties rights and interest in property originally brought into the stock of the firm or acquired by purchase or otherwise by or for the firm. Consequently, in my view, in the absence of any disagreement between the partners as such regarding the trade mark in question, which was registered as far ago as in 1956, it can safely be concluded at this stage that the same belonged to all the partners and indeed the firm itself. This conclusion becomes all the more imperative in view of the fact that the certificate in question not only mentions the names of the original partners but also that of the partnership viz. Basra Soap Factory. So also it would be seen that in subsequent correspondence which has been placed on the record by the defendants the addressee has always been M/s. Basra Soap Factory. For the foregoing reasons, at this stage, I would, therefore, hold that the trade mark bearing No.22315 was owned by M/s. Basra Soap Factory and through it by the original partners because practically there is no difference between the partners and the partnership firm as to the property of the firm provided there is no dispute between the partners inter se which is not the case in the present matter.

25. The other controversy is that whether the trade‑mark is the property of the defendants. It would be necessary in this respect to examine whether in terms of the agreement between the original partners and Adamjee Latif Godal dated 1‑8‑1955 the trade mark in question also actually formed part of the assets, which were sold by the said partners to Adamjee Latif Godal and whether it subsequently devolved upon the present partners i.e. defendants Nos.2 to 5 by virtue of transmission. In this regard it would be seen that the recitals of the said agreement do mention that the running business of M/s. Basra Soap Factory alongwith the machinery, goodwill, furniture, telephone and all other rights attached thereto excluding stock‑in‑trade were sold to Adamjee Latif Godal. In these circumstances, therefore, tentatively I have no hesitation in holding that the trade mark in question was also sold to Adamjee Latif Godal since the main business of the original partners was of manufacturing soap and it cannot be comprehended that when the entire running business was sold, the trade mark would not form a part of it particularly when the said business was to include the goodwill as well.

26. Next it would be seen that after purchase of the undertaking of M/s. Basra Soap Factory by Adamjee Latif Godal successive partnerships were formed between various persons which have been properly documented as per the deeds of Partnerships/ Dissolution brought on record. In this respect reference can be made to Annexures A/ 1 to A/ 11 c filed alongwith the affidavit accompanying C.M.A. No. 11299 of 1998 by the defendants which are certificates from the Registrar of Firms regarding registration of various firms set up by the incoming and outgoing partners, Partnership Deeds and Dissolution Deeds. The latest Partnership Deed is dated 1‑1‑1987 amongst defendants Nos.2 to 5. In this view I am satisfied. prima facie, that the defendant No.1 viz. Basra Soap Factory is a Partnership Firm which has continued right from its inception in 1954 to the present day although the composition of its partners has undergone changes. Resultantly I again have no difficulty in holding that the Partnership asset viz. the Trade Mark No.22315 all along vested with the Partnership/ Partners and that at the present moment it belongs to the defendants. This conclusion is also supported by the various documents brought on the record by the defendants in the shape of invoices etc., to show that the firm has been manufacturing and selling soap cakes under the name of Kissan/Hari for a very long time.

27. As regard Mr. Munawar Ghani's contention that no deed of assignment was executed between the original partners and Adamjee Latif Godil as contemplated under section 35 of the Trade Marks Act. suffice it to say that this section is an enabling one and provides that the Registrar shall record a change in proprietorship of any trade mark on application by the Assignee thereof. In the present circumstances, where prima facie, it appears that the trade mark was registered in the name of the firm/original partners there appears to be no need for any change in the registered proprietorship thereof. particularly in view of the fact that the partnership is a going concern. This conclusion is borne out from the various partnership deeds corresponding dissolution deeds and certificates given by the Registrar of the Firms. As to the cases cited by Mr. Munawar Ghani, viz. Ataur Rehman v. Adam Ali, Khuda Bux v. Badrul Hasan and Muhammad Ishaque v. Eros Theatre (supra), in my view, these are distinguishable because there the partnership property was in dispute in between the partners inter se which is not the case in the present matter. It was observed in the above cases that merely because immovable property was being used by the Firm is no guarantee for the inference that the same belonged to it. Here, there is no such dispute.

28. The next issue in controversy is the restoration of the trade mark in the year 1996 obtained by the defendants. In this respect it is the plaintiffs contention that said restoration was against the provisions of rule 49(2) of the Trade Mark Rules which provides that, the Registrar may restore a trade mark which has been struck off the Register within one year of the last, registration on being satisfied that it is just so to do and upon such conditions that he may think fit to impose. Per learned counsel for the plaintiff the registration of the trade mark in question expired on 31‑7‑1991 and was removed from the Register thereafter. Hence, the application for, restoration moved in the year 1995 was patently time- barred and even otherwise no cogent reasons were given for the delay in applying for the restoration. Hence the said restoration in the year 1996 upon application thereto in the year 1995 has no legal value at all.

29. In this regard it would be seen that per Annexure A/22 to the affidavit accompanying C.M.A.11299 of 1998 the said trade mark was removed from the Register on 15‑1 1‑1995 but upon a request being made on Form T. M. 13 dated 9‑9‑1996 the Mark was restored on 7‑10‑1996 with effect from 31‑7‑1991. This was done under section 18(3) of the Trade Marks Act. A perusal of said section would reveal that before expiry of the last registration of a trade mark, the Registrar is to notify the registered proprietor of the impending expiration whereafter a renewal of registration may be obtained. However, upon expiry of the time prescribed for renewal etc. the Registrar may remove the trade mark from the Registrar. As per rule 47 of the Trade Mark Rules, where no application is received on Form 12 .for renewal of the registration one month prior to the expiry of the registration, notice is to be sent to Form 0.3. Thereafter, if upon expiry of the last registration no application for renewal has been received, the Registrar shall advertise the fact forthwith in the Journal and if after four months thereafter, still renewal has not been obtained by the owner, the trade mark may be removed from the register by the Registrar. (Rules 48 and 49(1)). Thereafter, as already advertised above, the trade mark may be renewed by the Registrar in accordance with rule 49(2) within one year of the last registration. A combined reading of section 18(3) together with rules 47, 48 and 49 of the Rules would thus show that the entire exercise of sending notices on Form 0.3, advertisement in the Trade Mark Journal and restoration thereof is to take place within one year from expiry of the last registration. Prima facie, this course of action does not appear to have been followed in the present case since per the certified copies obtained from the Registrar's Office the registration of the trade mark in question expired on 1‑7‑1991 but it .was removed from the registry in the year 1995 and thereafter restored in the year 1996 upon an application moved by the defendants. Consequently it appears prima facie, that restoration of the trade mark was not in accordance with the law as laid down in the Trade Marks Act and Rules framed thereunder. However, having said as such, in my view evidence needs to be recorded in order to reach a positive finding in this regard and hence this issue is deferred till such time.

30. The last issue raised by the plaintiff is non- maintainability of C.M.A. No. 11295 of 1998 under Order 39, rule 4, C.P.C. which provides that any order for an injunction may be discharged, varied or set aside by the Court on application made thereto by any party dissatisfied with such order.

31. In this connection it is well‑settled law that Order 39, rule 4. C.P.C. can be invoked only where the previous injunction order which was sought to be vacated is unduly harsh and or unworkable or the same is deemed to be necessary in view of fresh circumstances. This becomes more imperative where the injunction order sought to be recalled is ex parte. It need hardly be added that where a party is able to show the aforementioned circumstances he cannot be non‑suited merely on the ground that although an appeal could have been filed against the injunction order the same was not done. For the foregoing proposition Muhammad Yousuf v. Sabra A. Muhammad and Engineering Products (Pvt.) Ltd. v. SITE (supra) may be cited. In any event it would be seen that under section 151, C.P.C. the inherent powers of a Court can be invoked in order to do complete justice between the parties and mould relief in accordance with the circumstances in the larger interest of justice. However, this discretion is only to be exercised in proper cases. (See Amna Begum v. Ghulam Dastagir (PLD 1978 SC 220).

32. Applying the foregoing principles of law to the facts of the case in so far as the present application is concerned. it would be seen that certainly some new material has been placed on record by the defendants which was not available at the time when the injunction order was confirmed. However, it still remains to be seen whether the defendants have been able to establish that by virtue of the documents etc., filed by them the injunction order has become unduly harsh or workable per the formulation in Muhammad Yousuf v. Sabira A. Muhammad (supra).

33. I have already held that, prima facie, the trade mark in question was owned by the original partners through the partnership and was thereafter transmitted to the successive partners upon reconstitution of the firm and consequently proprietorship of the said trade mark rests both with the present firm as constituted and the present partners viz. the defendants. Similarly, it appears that the said trade mark had been used right from the very inception of the firm up to the present moment in view of the various receipts and vouchers brought on record by the defendants. However, it appears that the said trade mark has not been renewed in accordance with the rules. Concurrently it would also be seen that the plaintiffs trade mark is also not registered since at the moment their application is still pending with the Registrar. However, the plaintiffs have been able to show that they have been using the trade mark since 1986.

34. In the circumstances, keeping in view the over all facts of the matter particularly the fact that the defendants appear to be the prior user of the trade mark in question, in my opinion, it would be in the interest of justice to vacate the earlier order dated 3‑11‑1998 with the result that both the parties would be allowed to use the trade mark till the suit is decided. C.M.A. 11299 of 1998 is granted.

35. In view of the foregoing order of C.M.A. No.4538 of 1998 is dismissed.

36. M.B.A./K‑59/K

37. Order accordingly.