ORDER SHEET

IN THE HIGH COURT OF SINDH AT KARACHI

H.C.A. No.248 of 2022

___________________________________________________________________ Date Order with signature of Judge

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FRESH CASE:

1. For order on CMA No.2303/2022 (Urgent).

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

3. For order on CMA No.2304/2022 (Exemption).

4. For hearing of main case.

5. For order on CMA No.2305/2022 (Stay).

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Dated; 10^th August 2022

Ms. Amna Salman alongwith Mr. Muhammad Shaikh, Advocate for Appellants.

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1. Urgency granted.

2. Learned counsel for the appellants undertakes to comply with office objection(s) 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 19.07.2022 passed by the learned Single Judge of this Court in Suit No.471 of 2022 filed by the appellants, whereby, according to learned counsel for the appellants, the request of the appellants seeking injunctive relief through CMA No.5259/2022 has been declined, whereas, the Customs Authorities, at the instance of the respondent No.1 has put a hold on 15 containers of the appellants meant for the purpose of exporting rice to the Federal Republic of Somalia under the trade name of “HAMZA”. Learned counsel for the appellants submits that a suit for infringement filed by the respondent No.1 is pending before the I.P. Tribunal, Lahore for the determination, as to whether the trade name of “HAMZA” is a common to trade name and any exporter can export rice to Somalia under the aforesaid trade name. According to learned counsel, the appellants are already exporting rice to Somalia since 2015 while using the aforesaid trade name, prior to registration of the trade name in favour of the respondent No.1 in the year 2018, whereas, the appellants contribute about 38% of the export of rice to Somalia, therefore, restraining the appellants from exporting rice to Somalia at this stage amounts to interference in the lawful business activity is violation of Article 18 of the Constitution of Islamic Republic of Pakistan, 1973. Per learned counsel, while passing the impugned order the learned Single Judge failed to appreciate this aspect of the matter, whereas, none of the ingredients to be taken into consideration while granting injunction are attracted in favour of the respondents. Per learned counsel, if the injunctive relief would have been granted to the appellants, it would have no adverse impact upon the respondents, however, its rejection has caused serious injury to the reputation of the appellants and also resulted in financial loss. In support of her contention learned counsel for the appellants has placed reliance in the case of Messrs MASTER TEXTILE MILLS LTD. THROUGH DULY AUTHORIZED SIGNATORY v. MASTER FABRICS THROUGH MANAGING PARTNER AND 5 OHTERS (2007 CLD 991).

Conversely, Mirza Mehmood Baig, Advocate present in Court pursuant to Notice under Order 43 Rule 3 CPC, waives notice of instant High Court Appeal on behalf of the respondent No.1, claims its copy alongwith annexures, undertakes to file vakalatnama and requests for time to file objection/reply, however, supports the impugned order passed by the learned Single Judge in the instant case on the ground that the subject dispute in the shape of a Suit i.e. Suit No.109/2022] is already pending before I.P. Tribunal, Lahore, wherein similar relief has already been declined to the appellant, therefore, the Suit and the relief sought therein is misconceived and not maintainable.

Let pre-admission notice be issued to the remaining respondents, to be served through first three modes, for 25.08.2022, when objection/reply, if any, shall be filed with advance copy to the learned counsel for the appellant. However, till next date of hearing, the Customs Authorities may not take any further coercive action against the appellants in respect of 15 containers of rice lying at the port, whereas, the request of the appellants to allow the return of rice while keeping packaging livery may be considered by the Customs Authorities in accordance with law.

J U D G E