Full Judgment Text
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CASE NO.:
Appeal (civil) 3389 of 2002
PETITIONER:
Cadila Healthcare Ltd
RESPONDENT:
Aurobindo Pharma Ltd. & Anr
DATE OF JUDGMENT: 09/04/2008
BENCH:
Tarun Chatterjee & Harjit Singh Bedi
JUDGMENT:
JUDGMENT
O R D E R
CIVIL APPEAL NO.3389 OF 2002
1. This appeal by special leave arises out of an order of the High Court of
Gujrat at Ahmedabad wherein the issue was of vacation of order of
injunction after notice which was granted by the trial court at the ex parte
stage relating to trade mark/name and passing of the medicine of the
appellant "ATORVA" by the medicine of the respondent "ATOR" for the
same treatment.
2. Initially, an interim order was granted by the trial court against which the
appeal was taken. The appeal was, however, admitted by the appellate
authority but it refused to grant any interim order
during the pendency of the appeal. Feeling aggrieved, the appellant before
us filed an appeal before the High Court of Gujarat at Ahmedabad which by
the impugned order refused to grant any interim order to the appellant, but
direction was made to proceed with the suit and dispose of the same at an
early date. It is this order of the High Court which was challenged in this
Court by way of a special leave petition. While issuing notice on 15th of
March, 2008, this Court passed the following order:-
"Exemption allowed.
Issue notice. In the meantime, we pass an ad-interim injunction n
in terms of para 17(a) of the application under Order 39 Rule 1
and 2 of the Civil Procedure Code, 1908, filed before the
Ahmedabad City Civil Court which reads as follows:
(a) restrain by an order of ad-interim injunction the
defendants, their servants, agents, stockists, or others
directly or indirectly involved from in any manner using in
relation to any medicinal or pharmaceutical preparation
in manufacturing or marketing the pharmaceutical product
bearing the trademark ATOR or any
other trade mark which is deceptively similar to the
plaintiff’s trademark."
3. The interim order granted by this Court was made absolute on 6th of
May, 2002 and at the same time leave was also granted. This is how the
matter has come up for hearing before us for final disposal.
4. Mr.C.A.Sundaram, learned senior counsel appearing on behalf of the
appellant submits on instruction that the respondents are now using the name
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of their medicine as "ATORIL" and not "ATOR" in respect of which this
court in the year 2002 had granted injunction restraining the respondent from
using the said name till the disposal of the appeal
which is still now continuing. Since the interim order granted by this Court is
still continuing for the last six years and considering the other facts and
circumstances of this case, we are of the view that the appeal which was filed
and still pending before the appellate court practically has now
become infructuous. Accordingly, the appeal before the appellate court is
disposed of as infructuous. However, considering the facts and circumstances
of the case, we direct the trial court to decide the suit as early as possible
preferably within a period of one year from the date of communication of this
order. It is needless to say that the interim order granted by this Court shall
continue till the disposal of the suit. We make it clear that we have not gone
into the merits as to whether the appellant was or is at all entitled to an order
of injunction in the application for injunction.
5. Accordingly, this appeal is disposed of with the above direction. There
will be no order as to costs.