This is a defendant’s Miscellaneous First Appeal against the order dated 28.04.2016 on I.A.No.3 granting an adinterim exparte temporary injunction in favour of the plaintiff restraining the defendant from infringing the plaintiff’s well established registered trademark ‘MTR’ in running vegetarian restaurant and passing off the same by using the offending mark ‘MTC’ and ‘MTC Express’ which is deceptively and confusingly similar as that of plaintiff, till next date.

2. The respondent herein who is the plaintiff filed O.S.No.2314/2016 for permanent injunction restraining the appellant/defendant its servants, assigns or agents or any one claiming through it from in any manner infringing on its well established registered trade mark ‘MTR’ or any other trademark/trading style which are in any way deceptively similar to its registered trademark by using offending trade name ‘MTC’ and ‘MTC Express’ or any other deceptively similar trademark/trading style, etc. raising various contentions.

3. The plaintiff also filed I.A.No.1 under Order XXXIX Rule 1 and 2 of the Code of Civil Procedure. The Trial Court, considering the application, by an order dated 23.03.2016 granted exparte injunction as prayed for and directed the plaintiff to comply with the provisions of Order XXXIX Rule 3(a) of Code of Civil Procedure and issued suit summons and notice on I.A.No.1 to the defendant returnable by 25.04.2016. On 25.04.2016, since the provisions of Order XXXIX Rule 3(a) of Code of Civil Procedure was not complied with by the plaintiff, summons/notice was not issued and the matter was posted on 26.04.2016 and then adjourned to 27.04.2016. On that day the advocate for the plaintiff filed another application I.A.No.3 under Order XXXIX Rule 1 and 2 r/w Section 151 of the Code of Civil Procedure and the matter was heard and posted for orders and subsequently, the impugned order came to be passed on 28.04.2016 on I.A.No.3, again granting exparte temporary injunction for the second time. Hence the present appeal is filed by the defendant.

4. I have heard the learned counsel for the parties to the lis.

5. Sri G.L. Vishwanath, learned counsel for Sri P.S. Preetham, advocate for the appellant, contended that the impugned order passed by the Trial Court allowing I.A.No.3 granting exparte temporary injunction is contrary to the provisions of Order XXXIX Rule 3(a) of Code of Civil Procedure, since application I.A.No.3 itself was not maintainable. Learned counsel submits that since the plaintiff failed to comply with the order dated 23.03.2016 passed by the trial Court on I.A.No.1, at most, the Trial Court could have vacated the exparte interim order, but unfortunately, the Trial Court has proceeded to entertain another application and granted exparte temporary injunction on 28.04.2016 which is verbatim/repetition of the earlier order, which is impermissible under law.

6. Learned counsel further contended that without complying with the provisions of Order XXXIX Rule 3(a) of the Code of Civil Procedure the plaintiff is disentitled to file a fresh application. The Trial Court ought to have rejected the application as not maintainable. Instead of that, the Trial Court has proceeded to pass the impugned exparte temporary injunction which is wholly erroneous and contrary to Order XXXIX Rule 3(a) of Code of Civil Procedure. In support of his contentions, learned counsel for the appellant sought to rely on the following decisions.

(i) S.B.L. Limited Vs. Himalaya Drug Co., AIR 1998 Del 126(DB)

(ii) A. Venkatasubbaiah Naidu Vs. S. Chellappa and others, (2000) 7 SCC 695.

Therefore, he submits that the impugned order passed by the Trial Court is liable to be setaside, by allowing the Miscellaneous First Appeal.

7. Per contra, Sri Sushen. S. learned counsel for Sri Harikrishna S.Holla, advocate for respondent/plaintiff sought to justify the impugned order passed by the Trial Court. He has raised a preliminary objection with regard to maintainability of the appeal and conte