JUDGMENT :

GS Patel, J.

1. The original Defendants in the Commercial Intellectual Property Suit have come in appeal against a without notice adinterim order dated 15th September 2022 by RI Chagla J. That order was passed on the application of the original Plaintiff, which is the Respondent to the Appeal.

2. By the impugned order, Chagla J granted a time-limited adinterim injunction and appointed a Court Receiver for a limited purpose. He also passed the necessary directions under Order 39 Rule 3 of the Code of Civil Procedure, 1908 (“CPC”). The order is operative only until 19th October 2022. Specific liberty is reserved to the Defendants to apply for a variation of the order with 72 hours prior written notice to the advocates for the Plaintiff.

3. The suit is a trademark infringement action combined with a cause of action in passing off. A Leave Petition under Clause 14 of the Letters Patent to combine the two causes of action is pending.

4. Mr Kirpekar for the Defendants in appeal says that the Plaintiff’s application could not have been granted without notice. He claims says that there is extensive suppression in the plaint, including, importantly, that the Defendant are registered proprietors of the rival mark although the registration is subsequent to that of the Plaintiff. Mr Kirpekar also says that while the Plaintiff mentioned in the plaint that it applied for cancellation of the Defendants’ mark there is ‘nothing annexed’ to the plaint.

5. There are two questions that arise for our immediate consideration since Mr Kirpekar relies on the order by one of us (GS Patel J) on 3rd August 2021 in Rizwana Abdul Aziz Farooqui and Ors v Limra Realty and Ors., Interim Application (L) No. 14556 of 2021 in Suit (L) No. 14555 of 2021. That order culls out certain principles of the law relating to applications moved without notice; specifically, the need for a fair disclosure of material particulars in the Plaint or the application for ad-interim relief without notice. The relevant portion of the Order in Rizwana Abdul Aziz was based on an order dated 7th June 2021 in Sun Pharmaceutical Industries Ltd v Emil Pharmaceutical Industries Pvt Ltd and Anr., Interim Application (L) 10937 of 2021 in Commercial IP Suit (L) No. 10928 of 2021

6. To begin with, it is necessary to clarify that the popular and widespread understanding of the expression ‘ex parte’ is misleading. Black’s Law Dictionary, 7th edition, 1999 has these definitions:

Ex parte (eks pahr-tee), adv. [Latin, “from the part”] On or from one party only, usu. without notice to or argument from the adverse party .

Ex parte, adj. Done or made at the instance and for the benefit of one party only, and without notice to, or argument by, any person adversely interested .

An ‘ex parte injunction’ is also defined: ex parte injunction. A preliminary injunction issued after the court has heard only the moving party. (Emphasis added)

7. The CPC itself does not use this expression. What we are concerned with is an application made without notice to the other side. To put it briefly and to get this aspect out of the way, an ex parte application is one-sided, without notice to the opponent. Where a party does not appear despite notice, and therefore, by conduct, declines to present its case, such an order is not, strictly speaking, ‘ex parte’. A court can compel notice. It can compel attendance. It cannot compel argument. There are many legal situations where the word ex parte is used to mean that there is only a party without an opponent — frequently in uncontested testamentary matters, for example, where though there is no opponent, yet a court order or direction is sought. For the rest of this order, therefore, we prefer not to use this expression. Instead, we will use the phraseology of the CPC: with notice and without notice.

8. Since we are dealing with injunctions, we must first look at the provisions of Order 39 Rules 1, 2 and 3 of the CPC:

ORDER XXXIX

Temporary Injunctions and Interlocutory Ord