KEUNEMAN .T.—SokkalaX^Bam Sait v. Nadar.
Present: Keuneman and Nihill JJ.
SOKKALAL RAM SAIT v. NADAR et al.
94—D. C. (Inty.) Colombo, 6,138
Execution—Stay of execution pending appeal—Proof of irreparable injury andsubstantial damage—Civil Procedure Code, s. 761.
Stay of execution pending appeal is granted only when the proceedingswould cause irreparable injury to the appellant and where the damagessuffered by the appellant by execution would be substantial.
^^PPEAL from an order of the District Judge ©f Colombo.
H. V. Perera, K.C. (with him N. K. Choksy), for defendants, appellants.R. L. Pereira, K.C. (with him Aiyer), for plaintiff respondents.
Cur. adv. vuIt.
December 14, 1938. Keuneman J.—
In this case the plaintiff sued the defendants for infringement of certaintrade marks, and claimed an injunction, and also damages for passingoff. The learned District Judge entered judgment for plaintiff allowinginjunction to issue in terms of the prayer, but awarded no damages.On June 23, 1938, before the expiry of the time allowed for appealing,the defendants moved for stay of execution, and they also filed an appealagainst the judgment, which is now pending. The learned District Judgerefused to stay execution, and dismissed the application made in thisconnection. The present appeal is taken from that order.
Under section 761 of the Civil Procedure Code, the District Judge hada discretion to allow stay of execution for sufficient cause, but he couldnot make such order, inter alia, unless he was satisfied that substantialloss might result to the party applying for stay of execution, unless theorder was made.
One point taken for the appellants was that the learned District Judgehad misdirected himself by stating in this order that the defendant’s userof the trade mark had not been honest, as found by himself in thejudgment in the case. In the first place it is not quite clear from thecontext whether this statement was merely incidental, or whether, theDistrict Judge rested some part of his finding on this. But even if we takethe latter view, I do not think the District Judge is debarred from takingsuch a matter into consideration. In dealing with a similar applicationSir W. Page-Wood, V.C., said, “ I do not think I ought to hold my handsimply on account of the decision being under appeal, unless I have somedoubt of the justice of the decision.” (A. G. v. Proprietors of theBradford Canal ’. I do not think there has been any misdirection here.
2 Eg. 71 at 79.
KEUNEMAN J.—Sokkalal Ram Sait v. Nadar.
It is also argued for the appellant that the failure to stay executionwould result in substantial, and even irreparable damage to the defend-ants. The evidence in support of this contention is not strong. In theaffidavit field in support of the application there is a statement that“ if they (the appellants) are ultimately successful they will sustain con-siderable loss and damage and also considerable prejudice to their trademarks. ” It is to be noted that nothing has been said as to the amountof business done in this particular class of goods, or whether this is theonly class of business done by the defendants, or if not what proportionof the business is done in these goods. It has however been argued beforeus that the loss of currency of the defendants’ trade mark until thedetermination of the appeal may have serious consequences, and that inany event the defendants will not be able to recoup themselves or anylosses suffered during this period. The learned District Judge thoughtthat though the defendants would suffer inconvenience or damage by thecontinuance of the injunction, they would not suffer irreparable damagewhich could not be adequately compensated by damages. I must confessthat I do not myself see that the defendants would be able to recoverdamages for the period during which the injunction continues, but on theother hand I do not think that it has been shown that the damage wouldbe substantial. It has been stated in England that “ the usual course isto stay proceedings pending an appeal only when the proceedings wouldcause irreparable injury to the appellant, mere inconvenience and annoy-ance is not enough to induce the Court to take away from the successfulparty the benefit of his decree. (Walford. v. WalfordL'). Even if we areto regard the damages as being irreparable in the sense that the defendantscould not recover the damages (I wish to add that I do not hold that theycould not recover the damages), yet I think that under our law it mustbe shown that the damage would also be substantial, and I do not thinkthat has been established in this case.
Further, in this case the District Judge has taken into account thebalance of convenience and inconvenience in granting or refusing stay ofexecution. He has pointed out that to permit the defendants to use themark during the pendency of the appeal might cause irreparable prejudiceto the plaintiff. Certainly, if the defendants continued to use these marksin competition with the plaintiff, damage would result to the plaintiff,and it might be difficult or impossible for the plaintiff to recover thesedamages.
I think this was a matter which the District Judge was entitled to takeinto account in exercising his discretion in this case.
The appeal is dismissed with costs.
I have read my brother’s judgment in the case and I agree with it.I can see no grounds for interfering with the discretion of the learnedDistrict Judge which seems to me to have been properly based upon a
L. R. [1867) 3 Ch. App. Cases 812.
SOERTSZ A.C-J.—Upasakappu v. Dias.
just appreciation of the relative positions of the tntfo parties. It shouldnot be overlooked, I think, that whilst there may have been concurrentuser of the two marks in Ceylon over a period of years, the plaintiff in theaction took the trouble to apply for and obtained registration of theirmark in 1934. The defendants’ mark is unregistered.
SOKKALAL RAM SAIT v. NADAR et al