( 1 ) THIS appeal by the defendant is against an order passed on 4. 2. 1997 by learned Single Judge in IA 6064/96 and IA 6065/96 (in Suit No. 1516/96 ). On 4. 2. 1997 learned Single Judge passed the following orders in the suit as well in the two misc. applications:

( 2 ) "s. NO. 1516/96 One Mr. Devinder Singh appears for defendant FAB Axles Pvt. Ltd. He says that he has filed a caveat through Singh Bhatia Chatterjee but now he does not propose to engage a counsel.

( 3 ) SINCE caveat had been filed by Singh Bhatia Chatterjee, notice to go to him as to why he had refused to take notice saying that he had nothing to do with caveat.

( 4 ) LET written statement be filed within four weeks with advance copy to plaintiff.

( 5 ) RENOTIFY for 26. 7. 1997.

( 6 ) IA 6064/96 This is an application under Order 39 Rules 1 and 2 read with Section 151 of the Code of Civil Procedure. Representative of defendant seeks six weeks time to file reply.

( 7 ) TIME granted.

( 8 )

( 9 ) CONSIDERING the facts and circumstances of the case, till the next date of hearing i. e. 26. 7. 1997, defendant is restrained from using "fab" as a trade mark or as a part of its corporate name or trading style.

( 10 ) LIST on 26. 7. 1997 for hearing and didposal.

( 11 ) IA 6065/96 This is an application of plaintiff under Order 26 Rule 9, Order 39 Rule 7 red with Section 151 of the Code of Civil Procedure for appointment of a Local Commissioner to visit the premises of defendant and to prepare inventory of the products lying therein with trade mark "fab" and for confiscation of the same.

( 12 ) MR. Ashish Kumar, Advocate, R/o 1332 Dayanand Vihar, Delhi-110092 Telephone No. 2141295 is appointed as a Local Commissioner to visit the premises/godowns as mentioned in paragraph 5 of the plaint and shall prepare an inventory of the goods lying therein with trade mark "fab" and shall submit report within ten days.

( 13 ) FEE of the Local Commissioner is fixed as rupees five thousand plus to and fro expenses.

( 14 ) I. A. is disposed of.

( 15 ) DASTI as well"

( 16 ) THE grievance of the appellant is that the learned Single Judge was not justified in granting ex-parte ad-interim order of injunction in view of the fact that caveat had been lodged by the defendant-appellant, who ought to have been provided with an opportunity to file written statement and reply and of being heard before proceeding to grant ex parte order of injunction.

( 17 ) COUNSEL for the parties were heard at length.

( 18 ) THE facts in brief are that on 13. 5. 1996 a Caveat under Section 148-A of the Code of Civil Procedure was lodged on behalf of defendant-appellant in this court, inter alia, alleging that Caveator is an established manufacturer and marketeer of inter alia front axle bearing for motor cars and anticipates that non-caveator (SAB Axle Pvt. Ltd. , who is the plaintiff-respondent) is likely to file a suit under the Trade and Merchandise Marks Act, 1958 and apply for ex-parte injunction to restrain the caveator from carrying on its established activity under the trade mark "fab". It was stated that a copy of caveat had been sent to the non-caveator. M/s Singh Bhatia Chatterji, Law Officer filed their Vakalatnama as counsel for the Caveator, who also lodged the caveat in this Court. The Vakalatnama is signed by Rajvinder Singh, Suchinto Chatterji and Gurkamal Hora, Advocates respectively on 10. 5. 1996.

( 19 ) TAKING note of the caveat (Caveat No. 544/96) the plaintiff-respondent on 25. 5. 1996 while instituting suit sent along with a covering letter a copy of plaint along with application under Order 39 Rules 1 and 2 of the Civil Procedure Code. and the application under Order 26 Rule 9 of the Code to the defendant-appellant stating that suit was being instituted and was likely to be listed in Court on 3. 7. 1996 wherein a prayer has been made for grant of interim injunction against mis-use of trade mark FAG and appointment of Commissioner for confiscation of goods. Copy of post