Case No: Criminal Petition for Leave to Appeal No. 221 of 2000
Judge: Mahmudul Amin Choudhury,
Court: Appellate Division ,,
Advocate: Mr. Md. Ataur Rahman khan,Shafique Ahmed ,Mr. M. Hafizullah,,
Citation: 53 DLR (AD) (2001) 104
Case Year: 2001
Appellant: Abdul Mannan Miah
Respondent: Solaiman Miah (Md)
Subject: Civil Law,
Delivery Date: 2001-7-18
Mahmudul Amin Choudhury, CJ.
Mainur Reza Chowdhury, J.
Md. Gholam Rabbani, J.
Md. Ruhul Amin, J.
Md. Fazlul Karim, J.
Abdul Mannan Miah
Solaiman Miah (Md)
July 18, 2001
The Code of Civil Procedure 1908 (V of 1908)
Order XXXIX, Rule 1
Whatever the High Court Division has observed will have no binding affect on the trial Court while disposing of the suit on merit as these were made while disposing of the interlocutory matter……(6)
M Hafizullah, Senior Advocate, (SK Siddique, Advocate with him), instructed by Md. Ataur Rahman, Advocate-on-Record—For the Petitioner
M Shafique Ahmed, Senior Advocate, instructed by Md. Nawab Ali, Advocate-on-Record—For the Respondent.
Criminal Petition for Leave to Appeal No. 221 of 2000
(From the Judgment and Order dated 29-06-2000 passed by the High Court Division, Dhaka in Criminal Miscellaneous Case No. 1813 of 1999).
Mahmudul Amin Choudhury CJ.
This petition for leave to appeal is against judgment and order dated 13-12-2000 passed by a Single Bench of the High Court Division in FMA No.321 of 2000b dismissing the appeal and also discharging the connected Rule being Civil Rule No.483 (FM) of 2000 and vacating the order of stay earlier granted and also directed the trial Court to dispose of the suit expeditiously preferably within three months from the date of receipt of the copy of the judgment.
2. The short fact leading to this petition is that the plaintiff respondent filed Title Suit No.3 of 1999 under section 20(2) and 21 of the Trade Marks Act, 1940 in the Court of the learned District Judge, Kishoreganj for declaration of title on the proprietary right relating to the Trade Mark “ghori” for washing soap and for permanent injunction against the defendant. It has been alleged in plaint that the plaintiff was engaged in the business of manufacturing, processing, selling and marketing of various types of soaps and out of these soaps manufactured by the plaintiff “ghori” (watch) brand is one of them and the plaintiff obtained registration of the trade mark “ghori” (watch) being No. 22202 and 31329 in Class 3 from the office of the Trade Mark Registrar, Dhaka on 28-8-1992. This mark was also registered with the Controller of Patent and Design and Copyright. Plaintiff also filed an application in the suit under Order 39 rules 1 and 2 read with section 151 of the Code of Civil Procedure and prayed for an injunction against the defendant petitioner.
3. The contesting defendant entered appearance in the suit and also filed a written objection against the plaintiff’s prayer for injunction in favour of the plaintiff as prayed for and against the defendant which was allowed. Against that order defendant moved the High Court Division in FIVIA No. 321 of 2000 and a Single Bench of that Division by judgment dated 13-12-2000 dismissed the appeal and discharged the connected Rule and directed the trial Court to dispose of the suit expeditiously preferably within three months from the date of receipt of the copy of the judgment. Against that judgment the contesting defendant filed this petition for leave to appeal.
4. Mr. M Shafiullah learned Counsel appearing on behalf of the petitioner sub that while disposing of the appeal the High Court Division entered into the merit of the case and made certain observations which has affected the case of the present petitioner on merit. He submits that the High Court Division while disposing of the Miscellaneous Appeal which arose out of an interlocutory matter of injunction has practically decided the suit on merit without taking any evidence.
5. Mr. Shafique Ahmed, learned entering caveat, submits that whatever the High Court Division mentioned in the judgment are all prima facie materials which will not affect the merit of the case itself.
6. We have gone through the judgment of the High Court Division and heard the learned Advocate of both the sides. It appears that the High Court Division made certain observations on the factual and legal position but all these are prima facie observations made while disposing of only the injunction matter. It is well settled that such observations should not be given any weight by the trial Court while disposing of the suit on merit. Whatever the High Court Division has observed will have no binding affect on the trial Court while disposing of the suit on merit as these were made while disposing of the interlocutory matter.
With this observation this petition is disposed of.