SOORIYA ENTERPRISES (INTERNATIONAL) LIMITED
MICHAEL WHITE & COMPANY LIMITED
G. P. S. DE SILVA. C.J.,
KULATUNGA, J. ANDRAMANATHAN. J.
S.C. (SPL.) LEAVE TO APPEALAPPLICATION NO. 367/94
A. REVISION APPLICATION
C. COLOMBO CASE NO. 4036/SPL.
JANUARY 23, 1995.
Interim injunction – Section 54 of the Judicature Act – Application for specialleave to appeal – Prayer for interim order, pending inquiry, for restoring the interiminjunction granted by the District Judge.
The Court of Appeal acting in revision, set aside the interim injunction granted tothe plaintiff by the District Judge.
The Court will not pending inquiry Into the application for special leave to appealagainst the court of appeal judgment, grant an interim order having the effect ofrestoring the interim injunction granted by the District Judge for the reason that(a) the facts did not show that the conduct of the defendant was such as wouldrender the ultimate judgment ineffectual, (b) an injunction is equitable relief.
Cases referred to:
Richard Perera v. Albert Perera 67 NLR 445, 447-448.
Ceylon Hotels Corporation v. Jayatunga 76 NLR 443,446.
Special leave to appeal against the judgment of the Court of Appeal.
S. Sivarasa, PC. with S. Mahenthiran and Sampath Udugampola for petitioner.Ikram Mohamad for respondent.
Cur. adv. vult.
The Court heard Counsel on the prayer (c) in the plaintiff's petitionfor the grant of an interim order restraining and prohibiting thedefendant from using the trade mark “Badreg” till the hearing anddisposal of this matter.
The District Judge by his order dated 01.06.94 granted an interiminjunction to the above effect pending the hearing and determinationof this action. The Court of Appeal set aside that order on the groundthat this was not a case of unfair competition by the defendant in thatboth the plaintiff and the defendant were supplying tea to one Badregof Jeddah, Saudi Arabia at Badreg's request in cartons with Badreg’sname. Court accepted the submission that the plaintiff had failed toestablish a legal right.
The District Judge had altogether failed to consider the questiondecided by the Court of Appeal although the defendant had clearlyraised it in his objections and submissions before the District Court.The defendant in his objections not only resisted the grant of aninterim injunction but also prayed that the plaint be rejected.
Sooriya Enterprises (International) Limited v. Michael White& Company limited (Kulatunga. J.)
Notwithstanding the existence of such objection, the District Judgewithout considering it, held that there was a prima facie case of unfaircompetition, based purely on the fact that the mark used by thedefendant was similar to that used by the plaintiff. Section 142(1) ofthe Code of Intellectual Property Act No. 52 of 1979 states –
“Any act of competition contrary to honest practices in industrialor commercial matters shall constitute an act of unfaircompetition”.
The Plaintiff has made an application for special leave to appealagainst the judgment of the Court of Appeal. That application standsfixed for support on 08.02.95 pending which, the plaintiff is seekingan order for the restoration of the interim injunction which the DistrictJudge granted. In my view, no such order should be granted.
In Richard Perera v. Albert Pereraw the Court considered S.86 ofthe Courts Ordinance which corresponded to S.54 of the JudicatureAct on injunctions. A condition precedent to the issue of an injunctionunder these sections is the commission of an act or nuisance inviolation of the plaintiff’s rights respecting the subject matter andtending to render the judgment ineffectual. H. N. G. Fernando J.(as he then was) said –
‘It seems to me that in this context . . . there must be someapparent violation of rights to which the plaintiff appears to beentitled and not merely of rights which he claims … the conductof the defendant must be such as would tend to render theultimate judgment ineffectual”.
He also observed –
“It the material actually pleaded before the Court reveals that thereis probably no right of the plaintiff which can be violated, it wouldbe unreasonable to issue the injunction”.
In the instant case, the ultimate relief sought in the action is apermanent injunction restraining the defendent using a mark similarto the mark being used by the plaintiff. It is not a mark which hasbeen registered in the plaintiff's name. If at the end of the trial the
District Judge were to grant such permanent injunction, it would bequite effectual even if an interim injunction is not granted.
The question also arises as to whether the grant of an interiminjunction, in these circumstances, would have the effect of grantingthe ultimate relief itself, before adjudication.
In view of the issues involved and the fact that an injunction isequitable relief Ceylon Hotels Corporation v. Jayatunga<2). I refuse theapplication for the interim order prayed for; no costs.
G. P. S. DE SILVA, C.J. -1 agree.
RAMANATHAN, J. -1 agree.
Application for interim order refused