MONTHLY CASE LAW UPDATE

Vol: 1

September, 2012

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1. 2012 CLD 1465 (Trade Mark)

Contents Page Mr. Justice Sarmad Jalal Osmany and

Gulzar Ahmed JJ
1. Trade Mark 1 SHAN FOOD IND. VS. ESTERN PRODUCT ETC.

2. Service Laws 1 (‘deception and confusion’ in trade mark

relevant considerations)
3. Customs Act 2
Some relevant consideration regarding
4. Contract Act 2 ‘deception and confusion’ in trade mark
matter have been discussed by August
5. Sale of Goods Act 2 court. Those factors are
6. Environmental Law 2 (a) The process of manufacturing of the
two commodities;
7. Banking Laws 2
(b) Their outlets or sales points.
8. Land Reforms Ordinance 4 (c) The nature of goods;
(d) The trade channel; and
9. Civil Procedure Code 4 (e) Potential customers/consumers.

10. Criminal Procedure Code 4

Finally a visual comparison of wrappers
/packing be made if they are substantially
11. Constitution 5 the same.

12. Foreign Judgments

2. 2012 PLC (C.S) 1300 (Service Law)
United Kingdom 5 Mr. Justice Sarmad Jalal Osmany and
Gulzar Ahmed JJ
United States of America 6
MUHAMMAD ZAHID RAJA V/S FEDERATION OF
Australia 6
PAKISTAN

(Subjective Evaluation on the basis of objective

criteria)

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The August Court while drawing the 5. 2012 CLD 1641 (Sales of Goods Act)
distinction between eligibility and fitness Mr. Justice Shahid Anwar Bajwa
in service matter observed that eligibility
relates to terms and condition of service PROVINCE OF SINDH ETC. VS. JAKHARNI
whereas fitness is a subjective evaluation ROLLER FLOUR MILL.
on the basis of objective criteria. The Date, place and time of the delivery is to be
Court observed that there is no vested decided by express contract between the
right of civil servant to be promoted. parties, but where there is no express
contract, delivery will be governed by Ss.35
and 36 of the Sales of Good Act, 1930, and
3. 2012 SCMR 1860 (Custom Act) in such a case it is the duty of the buyer to
apply for delivery, however it is available to
Mr. Justice Iftikhar Muhammad
the seller to deliver the Goods with any
Chaudhry, C.J and Sarmad Jalal application in that behalf by the buyer, but
Osmany, J the seller is also entitled to wait until buyer
M/S PARAMOUNTS SPINNING MILL VS. applies for the delivery.
C.S.CE APPELLATE TRIBUNAL
6. 2012 CLD 1696
(duties of revenue collecting authorities (Environmental Case law )
where there is no stay order)
Mrs. Ashraf Jahan (Chairperson) and
Abdul Karim Memon (Member Legal)
The Hon’ble Court has highlighted the
duties of revenue colleting authorities in DG, EPA GOVT. OF SINDH VS. RASEE-UL-
cases where there is no stay order. The HASSAN, CEO HABIB SUGHAR MILLS
court further observed that in cases of
contingent exemption from tax in view of Violation of procedural Rules, committed
SRO, limitation given under section by the prosecution witnesses, right from the
32(2) of Custom Act will not run beginning of initiating process against the
particularly when fraud has been mill, till submission of the complaint before
committed. The court in this case the Tribunal--- Inordinance delay occurred
directed regarding a recovery of revenue in the sending the wastewater sample to the
at the rate of US $ prevailing when the Laboratory ---- Neither chain of custody of
payment was made. sample was established nor samples were
sent to Laboratory in time --- any notice of
4. 2012 CLD 1659 (Contract Act) said violation had been issued; nor the mill
had been given any opportunity of hearing
Mr. Justice Ghulam Mustafa Mengal,J, as required under S.16(1) of said Act--- No
COMMISSIONER MEKRAN ETC. VS. HAJI Environmental Protection order was
ABDUL WAHID ETC. issued.

When letter in question had not been 7. 2012 CLD 1582 (Banking Laws)
executed by the competent person---
Before Ch. Shahid Saeed and Ijaz Ahmad, JJ
Mere signing of a letter could not be
termed as a “valid agreement” within the ALLAH DITTA VS. ZARAI TARAQIATI BANK
meaning of S.2 of the Contract Act, 1872, LIMITED ETC.
therefore, the plaintiffs were not entitled  Appellant deposited amount as per
to any decree of enforcement of the letter
offer of the bank but afterword
in question.
account was not closed by the bank

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 holding that incentive scheme was Modarabas (Floatation and Control)
defaulter of graver category and Ordinance, 1980 being executing court.
appellant had only one short  It was held that tribunal has sole
installment, therefore, he was not authority to execute its decree. That
entitled to avail the scheme. tribunal is a civil court under Code of
Civil Procedure 1908 and can either
 Court held that stance of bank is
astonishing which encourage the execute its decree as a arrear of land
people not to return the loan. revenue or under CPC.
 Bank should encourage the clients  That procedure of execution will be
of clean dealing and should be according to the option availed by the
softer to regular payees instead of tribunal.
hardened defaulters.
 Where CPC is made applicable by
 It was held that person equally special statute, it will be applicable as a
placed must be treated alike in the whole unless restricted by special
matter of privilege on the principle statute itself.
of equal protection of law as per
Article 25 of the Constitution. 2012 CLD 1681 (Banking Laws)
Before Muhammad Khalid Mehmood
2012 S C M R 1688 (Banking Laws) Khan, J
Mr. Justice Iftikhar Muhammad
ASKARI BANK LIMITED VS. WALEED JUNAID
Chaudhry, C.J., Jawwad S. Khawaja INDUSTRIES ETC.
and Khilji Arif Hussain, JJ
 Meaning of Leave to Defend:
SYED PHOOL BADSHAH ETC. VS. ADBP Unconditional leave to defend the suit
does not mean that plaintiff's claim
 Banking court cannot grant decree
beyond subject matter of the suit. stand rejected, the permission to
Plaint as whole is to be considered for defend the suit will provide
grant of relief opportunity to both the parties to
prove their respective claims.
 Under order vii Rule 7 CPC court is
empowered to grant effective and 2012 CLD 1654 (Banking Laws)
ancillary relief even if not prayed.
Before Ijaz Ahmad and Ibad ur Rehman
2012 CLD 1663 (Banking Laws) Lodhi, JJ

Before Muhammad Khalid Mehmood Khan MRS. QAMAR KHALID RASOOL VS. FAYSAL
and Muhammad Ameer Bhatti, JJ BANK LIMITED ETC.

MIAN AFTAB A. SHEIKH ETC VS. M/S TRUST  Appeal was filed against rejection of
MODARBA ETC. petition under Order 21 Rule 90 CPC.
 Appellant had questioned the Petitioner/Appellant questioned the
jurisdiction of tribunal, established auction proceeding being mala fide and
under Modaraba Companies and collusive.

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 It was held that inadequacy of price Court to grant an effective or ancillary relief
by reason of fraud would be a ground even if not prayed, as the plaint as whole is
to be looked into in order to determine
for setting aside a decree and also sale
relief for which plaintiff is entitled,
in execution of such decree. however, no relief can be granted upon the
facts and documents not disclosed in the
 That application under Order 21 Rule pleading.
90 CPC should be decided by
recording evidence and summary 2012 S C M R 1719 (C.P.C)
dismissal was not justified.
Mr. Justice Amir Hani Muslim and Sh.
Azmat Saeed, JJ
8. 2012 SCMR 1725 (Land Reforms Ord)
MUHAMMAD SALEEM VS PROVINCE OF
Mr. Justice Tassaduq Hussain Jillani, PUNJAB
Tariq Parvez, Mian Saqib Nisar and
Ejaz Afzal Khan, JJ First Appellate Court decreed suit of plaintiff in
its entirety---Revision applications filed by
MUHAMMAD SAFDAR Vs PUNJAB LAND defendant before High Court were accepted and
COMMISSION suit of plaintiff was dismissed in its entirety on
the ground that suit was barred under Order
Land Reforms Ordinance, 1977 was made IX, Rule 9, C.P.C. as an earlier suit was
into an Act of Parliament [Land Reforms Act, dismissed in default and never restored, where
1977] in view of such process/procedure, after the present suit had been filed---Validity--
therefore, gift deeds in question were -Predecessors-in-interest of the plaintiff were
executed/registered during the period when impleaded as defendants in the said earlier
Land Reforms Ordinance, 1977 was in force suit---Ex facie present plaintiff was not the
and it was under S.6 of the said Ordinance successor-in-interest of the plaintiff of the said
that gift transactions in question were void-- earlier suit, therefore, dismissal of said earlier
-Transactions which were void under Land suit in default could not have any consequences
Reforms Ordinance, 1977, which culminated for the present plaintiff, who did not claim any
into Land Reforms Act, 1977, could not be title through the plaintiff of the earlier suit.
held to be outside the purview of S.6 of the
said Ordinance or Act, which had absolutely 10. PLJ 2012 Lahore 95 (Cr.P.C)
similar/identical provisions---Gifts claimed
by the claimants in their favour ipso jure Mr. Justice Abdus Sattar Asghar, J
were void. (BAKHT BEDAR ALI SHAH Vs. THE STATE)

9. 2012 SCMR 1688 (C.P.C) An order passed by executive magistrate

before taking cognizance u/s 190 Cr.P.C
Mr. Justice Iftikhar Muhammad was considered an administrative and not a
Chaudhry, C.J., Jawwad S. Khawaja judicial order not revisable u/s 435 & 439
and Khilji Arif Hussain, JJ Cr.P.C in changed state of affairs, an order
passed by a judicial magistrate is to be
SYED PHOOL BADSHAH VS ADBP considered a judicial act and thus revisable
u/s 435 & 439 Cr.P.C. Agreeing or
The provisions of Order VII, Rule 7 of the disagreeing with cancellation report of
Civil Procedure Code empowers the police by a judicial magistrate is judicial
function.

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2012 P Cr. L J 1595 (Cr.P.C) PLJ 2012 SC 715 (Constitution)

Mr. Justice Mian Fasih-ul-Mulk, J Mr. Justice Nasir-Ul- Mulk , Asif Saeed Khan
HAKEEM FAZAL ELLAHI V/s MUHAMMAD Khosa, Sarmad Jalal Osmany, Ejaz Afzal
DIN ETC. KhanIjaz Ahmad Ch, Gulzar Ahmad and
Muhammad Athar Saeed
Dismissal of private complaint for non- CONTEMPT PROCEEDINGS AGAINST SYED
prosecution---Principles---Once the Trial YOUSAF RAZA GILANI; SUO MOTU CASE
Court summons the accused after having NO. 4 OF 2010
formed an opinion that sufficient While incorporating Art 10 A in the
grounds were available for proceeding Constitution and making the right to a “Fair
against them, private complaint cannot Trial” a fundamental right, the legislature did
be dismissed for non-prosecution as it not define or describe the requisites of a fair
trial, which showed that perhaps the intention
becomes a State case. was to give it the same meaning as is broadly
universally recognized and embedded in
11. P L D 2012 S C 774 (Constitution) jurisprudence in Pakistan.
Hon’ble Chief Justice Iftikhar Muhammad
Chaudhry, Jawwad S. Khawaja and Khilji Arif
Hussain, JJ 12. FOREIGN JUDGMENTS
MUHAMMAD AZHAR SIDDIQUI ETC. VS UK
FEDERATION OF PAKISTAN ETC.
Sugar (Deceased) (Represented by Fiona
 Where a judgment was pronounced by
Paveley) (Appellant) v British
the Supreme Court in exercise of its
Broadcasting Corporation (Respondent)
original jurisdiction under Art.184 (3),
[2012] UKSC 4
although an aggrieved person had the
The Supreme Court has ruled unanimously
right to seek review thereof under
that an internal BBC report into its
Art.188 of the Constitution, but the
coverage of the Israeli Palestinian conflict
framers of the Constitution in their
was “information held for the purposes of
wisdom had not provided a right of journalism, art or literature” and therefore
appeal against it--- need not be released to the public under the
 Legislature was presumed to know the Freedom of Information Act (FOIA).
state of law as it existed, and as such, no Four of the justices were of the view that
premium could be allowed to be made even if information is held only partly for
on account of any provision of the the purposes of journalism, art or
Constitution or the law…. literature, it is outside the scope of the
 Speaker did not enjoy an appellate FOIA. Lord Wilson however, was of the
authority or a review jurisdiction to look opinion that if information is held
into the merits of the judgment, nor did predominantly for the purposes of
she have the power to set such a journalism, art or literature, it is outside
conviction aside. the scope of FOIA and that the Balen
Report was held predominantly for those
Election Commission could not sit in appeal purposes. The BBC will be relieved that the
over a concluded judgment of a superior “partly” view prevailed, as the
court, and had to decide the question in the “predominately” test might in practice have
affirmative that the convicted person had brought a lot of internal documents within
become disqualified, therefore, his/her seat the scope of the FOIA.
should become vacant.

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VTB Capital Plc v Nutritek International Corp &
Ors [2012] EWCA Civ 808 - 20th June 2012 "could reasonably be expected to constitute
The appeal determined whether it is an unwarranted invasion of personal
possible to pierce the corporate veil in privacy" does not protect information
order to hold the controller of a company related to corporate privacy.
liable as a party to a company’s contracts.
The Commercial Court previously had Australian Federal Court
developed authority stating it would be
possible to pierce the corporate veil for (Full Court)
such an individual to be so liable,
provided certain conditions were met Steggles Limited v Yarrabee Chicken
(Gramsci v Stepanovs [2011] EWHC 333 Company Pty Ltd [2012] FCAFC 91
(Comm)). However, Arnold J in VTB The proper approach to construction of
Capital Plc v Nutritek came to the written term of the contract is to construe it
opposite view in the Chancery Division by reference to the principle of objectivity
and was therefore appealed to settle the stated. That approach requires the Court to
contradictory nature of these two ascertain the intention of the parties by
authorities. reference to what a reasonable person
would understand the language of the
A fundamental principle of company law contract to mean. It normally, requires
is that the rights and liabilities of an consideration not only of the text, but also
incorporated company are distinct from of the surrounding circumstances known to
that of individuals with control of that the parties, and the purpose and object of
company. However the principle of the transaction.
“piercing the veil of incorporation”
involves the blurring of that distinction It is well accepted that a commercial
such that those same individuals become contract such as the present is to be
potentially liable for the acts of that construed fairly and broadly but the Court
company. The appeal judges decided to has no power to remake a contract for the
err on the side of caution, to hold that it purpose of avoiding a result which may be
was contrary to principle and authority considered unjust.
that in circumstances where the
corporate veil was pierced, a court could That said, in approaching the construction
find that those who misused the of the contract, if a detailed, semantic and
company where then parties to that syntactical analysis of words in a
company's contracts. Accordingly the commercial contract will lead to a
appeal was refused and the original conclusion that flouts business common
determination of Arnold J in Nutritek sense, it must be made to yield to business
affirmed. common sense. Nevertheless, orthodoxy
requires that evidence of prior negotiations
USA Judgment (Supreme Court) is ordinarily to be excised from the process
of construction.
FCC v. AT&T, Inc., 562 U.S. (2011), is a
United States Supreme Court case on
aspects of corporate personhood. It held
that the exemption from Freedom of
Information Act disclosure requirements
for law enforcement records which

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