ORDER SHEET

IN THE HIGH COURT OF SINDH AT KARACHI

H.C.A. No.313 of 2022

_____________________________________________________________________ Date Order with signature of Judge

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FRESH CASE:

1. For order on CMA No.3003/2022 (Urgent).

2. For order on office objection a/w reply as at ‘A’.

3. For order on CMA No.3004/2022 (Exemption).

4. For hearing of main case.

5. For order on CMA No.3005/2022 (Stay).

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Dated; 21^st September 2022

Mr. Hyder Ali Khan alongwith Mr. Sami-ur-Rehman Khan, Advocate for Appellant.

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1. Urgency granted.

2. Learned counsel for the appellant undertakes to comply with office objection before next date of hearing.

3. Exemption granted subject to all just exceptions.

4&5. Instant High Court Appeal has been filed against impugned order dated 08.09.2022 passed by the learned Single Judge of this Court in Suit No.2707 of 2021 filed by the respondents No.1&2 against the appellant seeking declaration and permanent/mandatory injunction and recovery of damages in respect of six (6) drugs registered in the name of the appellant, whereas, according to learned counsel for the appellant, through impugned order deciding the injunction application bearing CMA No.19999/2021 filed by the respondents No.1&2 under Order XXXIX Rules 1&2 CPC read with Section 151 CPC the learned Single Judge has been pleased to grant the entire relief as claimed in the subject suit, whereas, no such relief was claimed in the injunction application. According to learned counsel for the appellant, the appellant has disputed the cancellation of distribution agreement on the ground that the appellant has entered into a distribution agreement with Besins Healthcare (Hong Kong) Limited on 05.03.2021, whereas, such agreement has been cancelled by the respondent No.2, whereas, the appellant has no privity of contract with such respondent. Per learned counsel, there was already a restraining order operating against the appellant for the use and distribution of the subject drugs, however, through impugned order, further directions have been issued to the DRAP [Drug Regulatory Authority of Pakistan] to proceed against the appellant, pursuant to which, DRAP has issued a show-cause notice dated 16.09.2022, whereby, the appellant has been threatened for cancellation of the registration pursuant to the impugned order, and there is no likelihood that in view of the impugned order appellant will not be given any reasonable opportunity to defend its claim before the DRAP or even the very suit. Per learned counsel, unless the impugned order is set aside or suspended, or directions are issued to the DRAP Authority not to pass any final adverse order pursuant to impugned show-cause notice, the appellant would have no case to defend in the aforesaid suit.

Mr. Abdul Sattar Pirzada, Advocate has shown appearance pursuant to notice under Order 43 Rule 3 CPC, files vakalatnama on behalf of the respondents No.1&2 and requests for time to file reply/objection. However, he submits that the impugned order passed by the learned Single Judge does not suffer from any factual error or legal infirmity, whereas, the relief granted to the respondents is within the scope of pleadings, as well as the injunction application filed under Order XXXIX Rules 1&2 CPC read with Section 151 CPC. It has been further contended by the learned counsel for respondents No.1&2 that show-cause notice issued by the DRAP is in consequence to the order passed by the learned Single Judge, who has been pleased to pass impugned order while taking into consideration the three factors i.e. (i) prima faice, (ii) balance of convenience and (iii) irreparable loss, as according to learned counsel, unless the respondents No.1&2 are allowed to get registration of the subject drugs by the DRAP in accordance with law, respondents No.1&2 will suffer irreparable loss and injury and the public at large will also be deprived from the use of subject drug, which is meant for gynecological purposes.

Heard the learned counsel for the parties and perused the record of this case as well as impugned order passed by the learned Single Judge, which reflects that the controversy between the parties relates to examine the effect of cancellation of distribution agreement executed between the appellant and Besins Healthcare (Hong Kong) Limited, which authority according to learned counsel for respondents, is now vested in the respondent No.2 i.e. Besins Healthcare Distribution FZ-LLC in terms of the assignment letter issued by the respondent No.2. Therefore, in order to avoid further delay in the matter we would issue pre-admission notices to the remaining respondents, to be served through first three modes, for 28.09.2022, to be taken up at 12:30 P.M., when reply/objection, if any, shall be filed with advance copy to the learned counsel for the appellant. In the meanwhile, the appellant may submit response to the impugned show-cause notice issued by the DRAP in accordance with law, however, till next date, no final adverse order may be passed pursuant to such show-cause notice.

J U D G E

*Farhan/PS*