D.H. Shukla, J.
1. The appellant (original plaintiff), Wimco Ltd., is a public limited company, incorporated and registered under the Indian Companies Act, having its registered office at Indian Mercantile Chambers, Ramjibhai Kamani Marg, Bombay-38. It is carrying-on the business of manufacturing match boxes since last 65 years. It manufactures match boxes under the names 'Kapas' and 'Home Lites'. It is having its factories at different places in India.
2. Defendant No. 1, Liberty Match Company is a registered partnership firm having its registered office at Kovilpatti in Tamil Nadu. It is also manufacturing match boxes since last two years under the trade name of 'Chameli' and 'Flying Horse'. Defendant No.2 is also a partnership firm and it is working as distributor and/or stockiest of defendant No.1 in the City of Ahmedabad and nearby markets, defendant No.5 is also a partnership firm of which defendant Nos. 3 and 4 are the partners. Defendant No. 5 is also appointed as distributor and/or stockiest of defendant No. 1 for the City of Ahmedabad. So also, defendants Nos. 6 and 7 are the distributors and/or stockists of defendant No. 1.
3. The plaintiff is aggrieved by a scheme launched by defendant No. 1 which is attracting a number of wholesalers, retailers and consumers to purchase its product, namely, 'Chameli' brand match boxes. In the plaintiff's submission, the scheme is in the nature of a lottery scheme. I shall outline the lottery scheme hereunder.
4. The plaintiff avers that on account of the scheme launched by defendant No.1, there was substantial decrease in the demand of its 'Kapas' matches within the City of Ahmedabad. In the submission of the plaintiff, the reduction in demand of its 'Kapas' matches was on account of the scheme launched by defendants Nos. 2 to 7 who conspired in launching the scheme and in making its successful.
5. The scheme may be outlined as under:Every container of 'Chameli' match boxes which contains 60 dozens of match boxes would contain a gift coupon or a prize coupon. Any person who would purchase such containers would get the gift coupons or prize coupons. The gift coupons would be of various denominations from Re.1 to Rs.25. It was originally submitted that it was not known as to what would be the highest denominations of the gift coupon. But later on, it seems to be an agreed position that the value would vary from Rs.1 to Rs.25. A person who obtains the prize coupon by purchasing a container of 60 dozen matches would get a prize coupon varying from denominations of Re.1 to Rs.25. The wholesalers who could purchase the containers would sell the container to the retailers after taking away the coupon for the benefit of themselves. The retailer consumers, therefore, would be left without the benefit of the gift coupons. An element of chance enters into the scheme, inasmuch as a person who purchases the containers would get a gift coupon of any denomination between Re.1 to Rs.25, since the gift coupons are not of uniform denominations. It is averred that there is a rush purchase the container in the hope of getting a gift coupon of higher denomination which would substantially reduce the price which they have to pay for the container. It is alleged that the scheme is in the nature of a lottery and thus it is an unfair trade practice. The plaintiff avers that the scheme being in the nature of a lottery, it is forbidden under the Bombay lotteries (Control and Tax) and Prize Competitions (Tax) Act, 1958 (hereinafter referred to as the 'Lotteries Act'), and is thus unlawful.
6. That a scheme proposed by a manufacturer would be welcome scheme to the extent it is a step in the direction of attracting consumers. However, if the scheme is in the nature of a lottery and where an element of chance enters into it, it becomes a scheme prohibited under the lotteries Act and it cannot be permitted to be done. Such a scheme containing an element of lottery is a criminal offence as well as a tort, tort also in the nature of a conspiracy and, therefore, under both counts, such a scheme is requires to be injuncted and discontinued. The plaintiff sought the relief of permanents injunction and by filing an application for an interim injunction, it also sought a temporary injunction against the running of the scheme by defendant No.1.
7. The learned Chamber Judge, City Civil Court, Ahmedabad, granted an ad interim injunction. The notice of motion was later on heard and it was dismissed and the ad interim relief was vacated by an order dated May 11, 1988. It is against this order of the chamber judge vacating the ad interim relief on exhibit 5 in civil suit No.1922 of 1988 that the present appeal from order is filled.
8. Mr.S.D.Shah, the learned advocate for the appellant, urged before me that scheme is a lottery declared illegal section 3 of the lotteries Act. He further submitted that the scheme is also hit by section 36A of the Monopolies and Restrictive Trade Practices Act, 1969. He further submitted that it also a tort, namely, a tort oof unlawful interference in the trade of the plaintiff. He thus challenged the interim order passed on application for injunction exhibit 5.
9. In order to show that the scheme is a lottery, Mr.Shah invited my attention to a Division Bench judgment of this court in State of Gujarat v. Mohandas Manumal [1979] 20 Guj LR 226 and also invited my attention to the lotteries Act. under the lotteries Act, 'lottery' is defined under section 2(1)(a). Section 2(1)(a) states that 'lottery' does not include a prize competition. This is the only defination given to the term 'lottery'. section 3 states that save as provided by this Act, all lotteries are unlawful. We are not cancers here with other sections of the lotteries Act. The question thus arises whether the scheme in question is in the nature of a lottery. If it is, it is unlawful under section 3 of the lotteries Act. On a perusal of the Division Bench judgment, it becomes clear that the scheme in question is in the nature of a lottery. The Madras High Court in Sesha Ayyar v. Krishna Ayyar, AIR 1936 Mad 225 [FB], held that the following four elements appear to be essential to constitute a lottery: (1) A prize or some advantage in the nature of a prize; (2) distribution by chance; (3) consideration paid or promised; and (4) risk of loss.
10. So far as the element is concerned, there is no controversy that the scheme offers a prize inasmuch as a purchaser gets a coupon of a denomination between Re.1 and Rs.25 for each container of 60 dozen boxes. So far as the second element of distribution by chance is concerned, it was of course contended that there is no element of chance because each purchaser of the container under the scheme gets a coupon. However, an element of chance cannot be gainsaid inasmuch as although every purchaser of the container under the scheme gets a coupon, he does not get the coupon of the same denomination may vary between Re.1 and Rs.25. It is in the facts of different denominations of the coupons that the element of chance gets in. The remaining elements are indeed required to be considered, as to whether a person who purchases a container and gets a coupon pays any consideration for the coupon because it is an admitted position that even without the benefit of a coupon, the container contains matches of the quality which is commensurate with its price. The fourth element is risk of loss, which, it is contended, is absent the scheme. The Division Bench took the view that for deciding the question whether a particular scheme is a lottery or not, the fourth element, namely, risk of loss is not an essential element and in so holding they dissented from the view taken by a singal judge of this court ( Coram: A.D.Desai J.) in state v. Jayantilal Bhimjibhai : (1968)9GLR603 , that risk of loss is also one of the four essential elements of constitute a lottery. The Division Bench observed that it may be that a person who gets the prize wholly gratuitously, risks nothing, but that does not lead one to the conclusion that in scheme where distribution of prize is made unequally, depending on mere chances, the fact that the subscriber gets at the end of the scheme what he has contributed and therefore does not risk anything, would not be a lottery. The Division Bench held that the decided cases referred to in that judgment did not lead to the conclusion that the risk of loss, though it may be present in a great variety of cases, is a necessary element of lottery. It is seen above that the first two elements of lottery are satisfied, namely, a purchaser of a container gets a prize or some advantage in the nature of prize and that the distribution is by chance, since the denomination of the coupon are different from Re.1 to Rs.25. It is a matter only of chance whether a purchaser would get a coupon worth Re.1 or worth Rs.25. So far as the third element of payment of consideration, reference may be made to the discussion by the Division Bench at paragraph 8 of its judgment. It is observed as under:
'Cases have arisen in England where a purchaser paying the real worth of goods also gets a chance of a prize while purchasing the goods. In that case, the contention that the purchaser got the real worth of goods and therefore, lost nothing and the chance of prize was wholly gratuitous, stood negatived. In Taylor v. Smetten [1883] 11 QSB 207 (Known ass Tea packets' case), the appellant sold tea packets each containing a pound of tea at 2s.6d. a packet. In each packet was coupon entitling the purchaser to a prize, and this way publicly stated by the appellant before the sale, but the purchaser did not know until after the sale what prize they were entitled to; and the prizes varied in character and value. It was found that the tea was good and worth the money paid for it. Still, it was held that what the appellant did constituted a lottery within the meaning of the statute. Hawkins J. made the following observation at para 211.
'There can be no doubt that the appellant in enclosing and announcing the enclosure of the coupon in the packet of tea, did so with a view of induce persons to become purchasers and realise a profit to him. Self; and, although it was admitted by the respondent that the tea was good and woth all the money, it is impossible to suppose that the aggregate prices charged and obtained for the packages did not include the aggregate prices of the tea and the prices. Nor can it be doubted that in buying a package, the purchaser treated and considered it as a purchase of the tea and the coupon, whatever its value might turn out to be. In other words, he bought the tea coupled with the chance of getting something of value by way of a prize, but without the least idea what prize might be... To us, it seems utterly immaterial whether a specific article was or was not conjoined with the chance, and, was the subject-matter of the sale'.'
11. The facts in Taylor v. Smetten [1883] 11 QSB 207 are identical to the facts of the present case. Thus, on the strength of the case in Taylor v. Smetten [1883] 11 QSB 207 followed by the Division Bench of this court, it can be said that the third element of the payment of consideration also enters into the scheme. So far as the fourth element of risk of loss is considered, the Division Bench held that it is not necessary element for constituting a lottery.
12. The present scheme is thus covered by the ratio of the Division Bench judgment in state of Gujarat v. Mohandas [1979] 20 GLR 226. The scheme, therefore, must prima facie be held, so far as the interim application for injunction is concerned to be a lottery.
13. Now, proceeding on the basis that the scheme is a lottery under section 3 of the lotteries Act, it is unlawful. Carrying out an unlawful activity must, therefore, be prohibited. However, it was contended that lottery may be a criminal act under the lotteries Act, but that fact does not given to the plaintiff a right to file a suit to that part of the contention and obtain an injunction against a criminal act. I do not want to touch that part of the contention, since the granting of an injunction would be justified, may even be necessary, in view of the provision of the Monopolies and Restrictive Trade Practices Act. The Monopolies and Restrictive Trade Practice Act deals with unfair trade practices in part B. Section 36A defines 'unfair trade practice'. I will quote hereinbelow the relevant part of section 36A. It runs thus;
'36A. In this part, unless the context otherwise requires, 'unfair trade practice' means a trade practice which, for the purpose of promoting the sale, use or supply of any goods or for the provision of any services, adopts one or more of the following practices and thereby causes loss or injury to consumers of such goods or services, whether by eliminating or restricting competition or otherwise...'
14. Sub-section (3) of section 36A runs as under:
'(3) permits:-
(a) the offering of gifts, prizes or other items with the intention of not providing them as offered or creating the impression that something is being given or offered free of charge when it is fully or partly covered by the amount charged in the transaction as a whole,
(b) the conduct of any contest, lottery game of chance or skill, for the purpose of promoting, directly or indirectly, the sale, use or supply of any product or any business interest.'
15. The portion of section 36A of the Monopolies and Restrictive Trade Practices Act quoted above clearly indicates that adopting a scheme in the nature of a lottery for the sale, use or supply of any product or any business interest falls within the definition of 'unfair trade practice' as defined in section 36A. In my view, the present scheme falls within the purview of 'unfair trade practice', as defined under section 36A.
16. In view of the above discussion, it appears to me that the scheme under consideration being a lottery and in the nature of an 'unfair trade practice' under the Monopolies and Restrictive Trade Practices Act, must be injuncted. The appellant, therefore, is required to be given an interim injunction as prayed for by it and the order of dismissal of the notice of motion passed by the learned chamber judge must be reversed.
17. However, before I pass the final order in this regard, I must countenance the objections raised by Mr. P. V. Nanavati before me.
18. Mr. Nanavati submitted that the present scheme is not in the nature of lottery inasmuch as every purchaser of a container got a coupon and therefore, there was no element of chance. As pointed out by me earlier in the order, the element of chance enters as the denominations of the coupons are different. That proposition is covered by the case of State of Gujarat v. Mohandas Manumal [1979] 20 GLR 226. It needs no further discussion.
19. However, Mr. Nanavati proceeded to argue that even assuming that the scheme is in the nature of lottery, it is not in any way affected by the provisions of the Monopolies and Restrictive Trade Practices Act. He submitted that the preamble to the Monopolies and Restrictive Trade Practices Act clearly suggested that the Act was passed to avoid concentration of economic power to the common detriment, for the control of monopolies for the prohibition of monopolies and restrictive trade practices Act and for matters connected therewith or incidental thereto. The impact of the Act was, therefore, on the common consumer as suggested by the term 'common detriment' and that the plaintiff could not complain against the scheme since it offered gift coupons to the wholesale purchasers and not to the retailers. The submission which looks attractive at first blush is not sound in its content. The reason is that the Monopolies and Restrictive Trade Practices Act steps in whenever an unfair trade practice has the effect of eliminating or restricting competition in the trade. The opening part of section 36A clearly states, 'and thereby causes loss or injury to the consumers of such goods or services, whether by eliminating or restricting competition or otherwise...' Mr. Nanavati emphasised that the loss must be to the consumers but, with respect, he does not read the section correctly,.. The emphasis is that the loss or injury must be caused to the consumers, whether by eliminating or restricting competition or otherwise. In other words, where a competition is either eliminated or restricted, there does occur a loss to the consumer, may be that such loss is not immediate or immediately palpable. The loss to the consumers may be indirect, nevertheless it is a loss. To lose the benefit of a competitive trade is itself a loss since it has a tendency ultimately to affect the quality of goods and in restricting the choice of goods amongst the purchasers. In this regard, the following observations found in Avon Cycles P. Ltd., In re [1986] 60 Comp Cas 1036 (MRTPC), make a useful reading (headnote):
'The question of loss or injury to the consumer by reason of impairment of competition or otherwise and prejudice to public interest or to the interest of the consumers in general has to be determined not from a narrow or limited point of view but from broader considerations governing our economic policy. It is not merely a matter as to how the prize scheme was actually financed; by cutting into the profits of the company or through an increase in the prices of bicycles. While this question is undoubtedly relevant, the more fundamental issue is whether the trade practice of resorting to contests, lotteries and similar methods, which are increasingly being adopted by industry and trade, is in the right direction from the point of view of healthy development of marketing techniques in this country, particularly in relation to promoting consumer and public interest. In this context, several important matters need to be considered. India is a poor country and the purchasing power of the majority of the people is low. An objective of the economic policy, in so far as it pertains to consumer interest, is to ensure that the prices of products, particularly of those which are required by common man, are kept within reasonable limits and that the quality of the products is steadily improved in order to increase consumer satisfaction. The touchstone of healthy trade practice will be to what extent it is able to make available products of consistently high quality at low prices. In other words, the market should be annexed on the strength of the quality and price of the products, which in the ultimate analysis, are the sure indicators of consumer benefit. The methods and strategies adopted for sales promotion should clearly keep this in view and any practice which detracts from this basic consideration should be regarded as prejudicial to consumer interest and public interest.
The conduct of lotteries, contests, etc., tends to induce consumers to buy products on considerations other than quality and price. When the essential considerations of quality and price are lost sight of, consumer and public interest suffers.
The award of prizes benefits only a minuscule number of consumers. Discriminatory benefit of this kind to a select few without any corresponding benefit to or, as often happens, at the expense of, the bulk of the consumers is obviously not in the overall interest of the consumers. On the other hand, the same amount, if utilised for the purpose of reducing prices or providing better services to the consumers in general, will enhance consumer satisfaction...'
20. Mr. Nanavati then contended that the civil court has no jurisdiction to decide the question of an unfair trade practice. The question would fall within the exclusive jurisdiction of the Monopolies and Restrictive Trade Practices Commission. This contention must be rejected for the following reasons:
(i) The Monopolies and Restrictive Trade Practices Act does not expressly exclude the jurisdiction of the civil court.
(ii) Perusal of sections 12A and 12B of the Monopolies and Restrictive Trade Practices Act suggests that the said Act intends to give concurrent jurisdiction to the Commission, but it does not intend to oust the jurisdiction of the civil court. Section 12B relates to the power of the Commission to award compensation. It is stated that where, as a result of the monopolistic or restrictive or unfair trade practice, any loss or damage is caused to the Central Government or any State Government or any trade or class of traders or any consumer, such Government or, as the case may be, trader or class of traders or consumer may, without prejudice to the right of such Government, trader or class of traders or consumer to institute a suit for the recovery of any compensation for the loss or damage so caused, make an application to the Commissioner for an order for the recovery from that undertaking or owner thereof, or as the case may be, of such amount as the commission may determine, as compensation for the loss or damage so caused. Section 12B, therefore, clearly indicates that the Commissioner's power to award compensation is concurrent with that of the court.
(iii) The Supreme Court in Dhulabhai v. State of M. P. : [1968]3SCR662 , fully dealt with the question of jurisdiction or the civil court under section 9 of the Civil Procedure Code, 1908. It carved out several principles to decide the question of the jurisdiction of the civil court under different sets of circumstances. It observed, inter alia (headnote of AIR):
'Where there is an express bar of the jurisdiction of the court, an examination of the scheme of the particular Act to find the adequacy or the sufficiency of the remedies provided may be relevant but is not decisive to sustain the jurisdiction of the civil court. Where there is no express exclusion, the examination of the remedies and the scheme of the particular Act to find out the intendment becomes necessary and the result of the inquiry may be decisive. In the latter case, it is necessary to see if the statute creates a special right or a liability and provides for the determination of the right or liability and further lays down that all questions about the said right and liability shall be determined by the Tribunals so constituted, and whether remedies normally associated with actions in civil courts are prescribed by the said statute or not.' The decrying of unfair trade practices is a creation of the Monopolies and Restrictive Trade Practices Act and ite carves out a specific liability on the part of the manufacturers to desist from an unfair trade practice. The Monopolies and Restrictive Trade Practices Act does provide for the determination of the right or liability, but at the same time does not expressly exclude the jurisdiction of the civil court, nay it suggests, as pointed out above, by perusal of section 12B that it recognises the situation that the remedies under it are concurrent with the remedies available from the civil court. It must also be seen that the settled law is that the exclusion of the jurisdiction of the civil court is not to be readily inferred.
The following observations from Mahindra and Mahindra Ltd. v. Union of India [1979] 49 Comp Cas 419; AIR 1979 SC 798; provides a guidance, although the observation is made in a different context (at page 454 of 49 Comp Cas):
'It is clear from the definition that it is only where a trade practice has the effect, actual or probable, of restricting, lessening or destroying competition that it is liable to be regarded as a restrictive trade practice. If a trade practice merely regulates and thereby promotes competition, it would not fall within the definition of restrictive trade practice, even thought it may be, to some extent, in restraint of trade. Whenever, therefore, a question arises before the Commission or the court as to whether a certain trade practice is restrictive or not, it has to be decided not on any theoretical or a prior reasoning, but by inquiring whether the trade practice has or may have the effect of preventing, distorting or restricting competition.'
21. Thus, impliedly, the jurisdiction of the civil court is asserted in this observation.
22. Mr. Nanavati submitted that in the Monopolies and Restrictive Trade Practices Act, there are adequate provisions introduced to suggest that it is a self-contained code and the jurisdiction of the civil court is, therefore, barred. He referred me to a judgment in Ramagya Prasad Gupta v. Murli Prasad, AIR 1974 SC 1320, where the Andhra Pradesh Estate Abolition Act was discussed and it was observed that on general principles, the special tribunals constituted by the Act must necessarily be held to have exclusive jurisdiction to decide dispute entrusted by the statute to them for their jurisdiction. It is not necessary for me to refer to this judgment, as it deals with a different statute in an altogether different context. The submission that the Monopolies and Restrictive Trade Practices Act provides adequate adjectival provisions in regard to the remedies is based upon the provisions found in sections 12, 12A, 12B and 12C of the Monopolies and Restrictive Trade Practices Act. Section 12 confers upon the Commission the powers stated therein. These powers relate to summoning of witnesses regarding discovery of documents, reception of evidence on affidavits, requisition of any public record from any court or office, the examination of any witness on commission, etc. It is also provided that the proceeding is within the meaning of section 193 and 228 of the Indian Penal Code Section 12A deals with the power of the Commission to grant temporary injunctions. Section 12B deals with the power of the Commission to award compensation and section 12C deals with the enforcement of the order made by the Commission under section 12A or 12B. It is provided that every order made by the Commission under section 12A granting a temporary injunction under section 12B directing the owner of an undertaking or other person to make payment of any amount, may be enforced by the Commission in the same manner as if it were a decree or order made by a court in a suit pending therein. Mr. Nanavati relied upon this provision to suggest that the remedies are quite adequate and of a nature analogous to those which a civil court is entitled to grant. I have pointed out above that section 12B itself envisages that the remedies to be pursued before the Commission and which may be followed by way of a suit are concurrent remedies. Not only is the jurisdiction of the civil court not expressly barred, but there is a clear indication in section 12B that it is open to party to institute a suit for the recovery of any compensation for the loss or damage caused to it. Of course, so far as section 12A is concerned, a similar terminology is not found therein, but it is difficult to suppose that the jurisdiction of a civil court is envisaged for the purpose of the grant of compensation, but that it would be excluded so far as the grant of injunction is concerned. It is again necessary to consider the terminology of section 12A wherein it is prescribed that where, during any inquiry before the Commission it is proved whether by the complainant... by affidavit or otherwise that any undertaking or any person is carrying on an unfair trade practice and that it is likely to affect prejudicial the public interest or the interest of any trader, the Commission may, for the purpose of staying or preventing the undertaking, by order, grant a temporary injunction... What is to be emphasised is that section 12A envisages the making of an application for an injunction during an inquiry before the Commission. In other words, the inquiry must be pending before such an application can be submitted. These words postulate that before an interlocutory injunction can be granted by the Commission, the pre-requisite is a pending inquiry. The inquiry itself must arise independent of the prayer for an interlocutory injunction. The next question, therefore, is whether an individual like the plaintiff can move the Commission to hold an inquiry. Section 36B of the Monopolies and Restrictive Trade Practices Act is as under :
'36B. The Commission may inquire into any unfair trade practice,-
(a) upon receiving a complaint of facts which constitutes such practice from any trade or consumers' association having a membership of not less than twenty-five persons or from twenty- five or more consumers;
(b) upon a reference made to it by the Central Government or a State Government;
(c) upon an application made to it by the Director-General; or
(d) upon its own knowledge or information.'
23. A perusal of section 36B thus suggest that an individual like the plaintiff cannot by itself move the Commission as a matter of right. True it is that if an inquiry is once launched, it may be open to it to submit an application for an injunction under section 12A. In view of this statutory situation, it is difficult to agree with Mr. Nanavati that the remedies available to an aggrieved party are so adequately provided in the Monopolies and Restrictive Trade Practices Act that the Monopolies and Restrictive Trade Practices Act can be taken to be a sef-contained code so as to oust the jurisdiction of the civil court.
24. In view of the aforesaid discussion, I am of the view that the provisions of the Monopolies and Restrictive Trade Practices Act do not take away the civil jurisdiction of the court under section 9 of the Civil Procedure Code.
25. The following points thus emerge from the above discussion:
(1) The scheme of defendant No. 1 is in the nature of lottery.
(2) It is an unlawful activity under the lotteries Act.
(3) That it is an unfair practice under the provisions of the Monopolies and Restrictive Trade Practices Act,
(4) That the civil court is entitled to take cognizance of a matter such as the present wherein the plaintiff has made a grievance about the adoption of an unfair labour trade practice by a competitive trader, namely, defendant No. 1 -
26. Mr. Nanavati, however, contended that even assuming that the civil court has jurisdiction, the plaintiff has no locus standi to file the present suit. He elaborated his submission to the effect that the scheme gave gift coupons only to a bulk purchaser and not to a retailer. It was with a view to promote sales and it in no way affects the plaintiff. The plaintiff has not shown by producing necessary evidence as to how it was affected. In the absence of such evidence, it has no locus standi to file a suit in the civil court, I am afraid, Mr. Nanavati is not right in making such a submission. In the plaint itself, the plaintiff has averred (vide paragraph 10) that because of the scheme of the defendants, the sale of the product of the plaintiff within the cities of Ahmedabad, Baroda and Surat has gone down substantially. In the month of December, 1987, i.e., to say prior to the introduction of the scheme by the defendant, the monthly sale of the product of the plaintiff was more than 765 cases valued at Rs.11,09,250, during the period from January to March 1988, i.e., after the introduction of the said scheme of the defendants, the sale of the products of the plaintiff in the city of Ahmedabad went down by at least 20%. It is averred that the sale within the city of Ahmedabad was substantially reduced because of the lottery scheme started by the defendants. It is averred that the plaintiff has the right to carry on any trade fairly and to see that on one interferes with its right by illegal means. Since the defendants have directly interfered with the right of the plaintiff by starting the lottery scheme and since they have caused loss to the plaintiff, the plaintiff have a civil as well as a common law right to restrain the defendants from resorting to any activity prohibited by law. The question of proof can be tested at the time of the trial, but it can not be said that unless the entire question of damage to the plaintiff is conclusively established, the court cannot grant any interim relief to the plaintiff for the reason that till then it has no locus standi to file the suit.
27. I may point out here that the grievance of the plaintiff that the scheme in question i s an unfair trade practice under the Monopolies and Restrictive Trade Practices Act, was not raised in the application for interim injunction, but this legal question was raised by the plaintiff in the rejoinder application. It is submitted by Mr. Shah before me that the question was fully argued before the trial court by both the sides. Since the question is of substantive importance and gose to the root of the matter, I have heard learned advocates of the rival sides on the question. For the reasons stated above , I have reached a conclusion, prima facie of course, since I have reached a conclusion at the stage of hearing of an appeal from an order, that the order of the trial court is required to be interfered with and the interim injunction sought for by the plaintiff in his application for interim injunction is required to be granted.
28. Before passing the final order, I may that the scheme is also challenged by the plaintiff on the ground that it is a tortious activity both under the common law and as a specific tort being an unfair trade practice and therefore, also the interim injunction sought for must be granted. Mr.P.V.Nanavati wanted to challenge this assertion regarding the tortious liability of defendant No.1. I have however , not entered into this aspect of the plaintiff's grievance, since it is possible for me to dispose of this appeal from order on the sole score that it is an unfair trade practice under the Monopolies and Restrictive Trade Practise Act and, therefore, it is required to be injuncted.
29. In the result, the appellant succeeds and I pass the following order : The appeal from order is allowed. The order of the trial court passed below, exhibit 5, is set aside. An interim injunction in favour of the plaintiff and against the defendants is granted restraining the defendants, their servants and agents from running and continuing to run the scheme in question,till the final decision in the concerned civil suit. Costs shall be costs in the cause.
30. Mr. P.V. Nanavati submit that the operation of my above order may be suspended for 15 days to unable the defendants to prefer appropriate proceeding before the supreme Court. The request is opposed by Mr. S. D. Shah, on the ground that, the ad interim injunction granted by the trial court is in operation till today. It is in operation because although while passing an order below, exhibit 5, the ad interim injunction was vacated, it was continue till today, i.e. July 7, 1988. If I were to suspend the operation of my order passed today, the effect will be to nullify the protection which the appellant has enjoyed sice the institution of the suit and to permit the respondents to carry on the activity which I have consider to be unlawful. I find substance in Mr. Shah's opposition to the request of Mr. Nanavati. Mr. Nanavati's request is, therefore, rejected.
31. Order accordingly.