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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.