ACI Ltd. vs. Respondent: Square Pharmaceuticals Ltd and Another

IN THE SUPREME COURT OF BANGLADESH
(HIGH COURT DIVISION)

Civil Revision No. 2091 of 2003

Decided On: 23.06.2004

Appellants: ACI Ltd.
Vs.
Respondent: Square Pharmaceuticals Ltd and another

**Hon’ble Judges:**Md. Abdur Rashid and Syed A.B. Mahmudul Huq, JJ.

Counsels:
For Appellant/Petitioner/Plaintiff: Rafique-ul Huq with Anik R Hoque, Advocates

For Respondents/Defendant: Rokanuddin Mahmud with Kazi Zinnat Hoque, Advocates

Subject: Civil Procedure

Catch Words

Mentioned IN

**Acts/Rules/Orders:**Code of Civil Procedure, 1908 (CPC) - Order XLIII Rule 1 (r); Code of Civil Procedure, 1908 (CPC) - Order XXXIX Rule 1; Code of Civil Procedure, 1908 (CPC) - Order XXXIX Rule 2; Code of Civil Procedure, 1908 (CPC) - Order XXXIX Rule 4; Code of Civil Procedure, 1908 (CPC) - Section 115(1)

Citing Reference:

Discussed

 1

Mentioned

 1

JUDGMENT

Md. Abdur Rashid, J.

1. Defendant No. 2 obtained the Rule upon making a revision application under section 115(1) of the Code of Civil Procedure against an Order dated 14-5-03 passed by Additional District Judge. Court No. 2 at Pabna in Miscellaneous Appeal No. 22 of 2003, which dismissed the appeal as not maintainable. Opposite party No. 1 as plaintiff instituted Title Suit No. 146 of 2003 in the Court of Senior Assistant Judge at Sadar in Pabna against the petitioner and another for a decree of declaration that the license dated 14-10-02 granted by defendant No. 1 for production of ‘Polyron’ was legal and still valid and that the registration dated 29-9-02 in the name of ‘Polyron’ granted by defendant No. 1 in favor of defendant No. 2 as brand name ‘Iron Hydroxide Polymaltose Complex’ was forged, collusive, antedated and of no legal effect.

2. Then, on 17-4-03 the plaintiff made an application under Order XXXIX, rules 1 and 2 of the Code of Civil Procedure for restraining said defendants from production and marketing of said ‘Polyron’. Upon the application the Court ordered to issue usual notice upon the defendants asking them to show cause within three days from date as to why they should not be restrained from production and marketing of said ‘Polyron’; and by an order of ad-interim injunction restrained defendant No. 2 petitioner from marketing and selling of schedule-‘Ka’ brand ‘Polyron’ until disposal of the application for temporary injunction

3. Pursuant to the notice, the petitioner appeared and made an application under Order XXXIX, rule 4 of the Code of Civil Procedure for vacating the order of ad-interim injunction. As no order was passed thereon the petitioner took an appeal against the order of ad-interim injunction before the District Judge at Pabna being aforesaid Miscellaneous Appeal No. 22 of 2003.

4. Learned Additional District Judge by impugned order dismissed the appeal as not maintainable.

Mr Rafique-ul-Huq, learned Senior Counsel for the petitioner, submits that it is now settled that an appeal lies against an order of ad-interim injunction pending decision of an application for temporary injunction but, on wrong assumption, the learned Additional District Judge dismissed the appeal. In support, he cited Mohammad Nurul Islam and others vs Government of Bangladesh 1977 BSCR 32.

5. Mr Rokanuddin Mahmud, learned Senior Counsel appearing on behalf of opposite party No. 1, found it difficult to oppose the submission of Mr Huq.

6. He, however, submitted that the trial Court could be directed to dispose of the application for temporary injunction within a date fixed and the parties might be directed to maintain status quo till then in modification of the order of stay granted at the time of issue of the Rule.

7. In reply, Mr Huq readily conceded to such submission of Mr Mahmud.

8. Order XLIII, rule 1 (r) of the Code of Civil Procedure provides, inter alia, that an appeal shall lie against an order under rule 1 or 2 of Order XXXIX of the Code. Any order passed under rule 1 or 2 of Order XXXIX of the Code upon an application for temporary injunction shall, in our view, include an order of ad-interim injunction until final disposal of such application Simple reason is that such ad-interim order was passed in aid of the final order that may be passed in disposing of the application for temporary injunction.

9. In Abdul Jalil Munshi vs Abu Bakr Siddique, 35 DLR (AD) 42 by dismissing an appeal the Appellate Division directed maintenance of status quo ante in respect of a disputed passage. Appeal was presented against an order of a single judge of this Division directing removal of a wall raised blocking disputed passage during an order of stay obtained by the appellant from the appellate Court against an order of ad-interim injunction of the trial Court. The appellant presented the appeal before the District Judge against an order of the trial Court rejecting an application made under Order XXXIX, rule 4 of the Code. In the appeal before the Appellate Court, it was never an issue whether or not an order made under rule 1 or 2 was appealable. In Mohammad Nurul Islam Case, the Appellate Division clearly ruled that an appeal shall lie against an ad-interim order of injunction passed under rule 1 or 2 of said Order XXXIX of the Code. Learned Additional District Judge unnecessarily dwelt upon the point and upon a wrong reading of the decision in Abdul Jalil Case found the appeal not maintainable. The decision of the Appellate Division has already set at rest all controversies regarding the question.

10. Impugned order dismissing the appeal therefore, must be struck down.

11. But sending the appeal back to the appellate Court for decision on merit would now serve no purpose nor it would be proper for us to decide the legality of the order of ad-interim injunction. Because any decision on merit of the order of ad-interim injunction by us would definitely have serious impact on hearing of the application for temporary injunction, which is still pending before the trial Court.

12. In the facts and circumstances of the case, hearing and disposal of the application for temporary injunction however needs urgent attention.

13. In the result the Rule is made absolute without however any order as to cost. Impugned order dated 14-5-03 is hereby set aside.

14. Learned Assistant Judge is directed to hear and dispose of the application for temporary injunction by 23 August 2004 positively. Parties will maintain status quo as of today till then.

Communicate at once.