The court affirmed that in cases of ex parte orders, subsequent factual discoveries warrant revisiting previous orders to ensure proper execution and uphold the efficacy of injunctions.

JUDGMENT

Navin Chawla, J. (Oral)

This petition has been heard through video conferencing.

CM APPL. 14406/2021 & 14407/2021 (Exemptions)

Allowed, subject to all just exceptions.

CM(M) 333/2021 & CM APPL. 14405/2021

1. This petition has been filed challenging the order dated 22.03.2021 passed by the learned District Judge (Commercial Court)- 02, Central, Tis Hazari Courts, New Delhi in Suit, being CS (Comm) 404/2021 by which the application filed by the petitioner under Sections 148 and 149 of the Code of Civil Procedure, 1908 (CPC), seeking extension of time to make compliance with the Order XXXIX Rule 3 of the CPC, as also seeking appointment of a Local Commissioner to visit and execute the commission at premises A-21, Khatri Nagar, Near RIICO Pulia, Sanganer, Jaipur-302029, has been rejected by the learned Trial Court.

2. As the Impugned Order has been passed ex parte with the defendant/respondent yet to appear before the learned Trial Court, I do not deem it necessary to give a notice of this petition to the respondent/defendant.

3. The above Suit has been filed by the petitioner inter alia praying for a decree of injunction claiming itself to be the proprietor of the trademark `Mahesh'. The learned Trial Court by its order dated 19.02.2021 was pleased to pass an ad interim order of injunction, granting three weeks time to the petitioner to make compliance with the provisions of Order XXXIX Rule 3 CPC. The learned Trail Court was further pleased to appoint a Local Commissioner to visit the premises of the respondent at G-1, 70, Mumal Residency, Shri Kushal Nagar, Near Riico Puliya, Sanganer, Jaipur, Rajasthan.

4. The petitioner thereafter filed an application contending that a large stock of impugned goods are being stored by the respondent at A-21, Khatri Nagar, Near RIICO Pulia, Sanganer, Jaipur-302029 and prayed that the Local Commissioner be also directed to visit the said premises. The said application was dismissed by the learned Trial Court vide its order dated 26.02.2021 finding no merit in the prayer of the petitioner for execution of the Local Commission at the additional address.

5. The petitioner then filed an application seeking modification of the order dated 19.02.2021 praying for incorporation of the facts mentioned in paragraph 26 and 27 of the plaint, in the said order. The said application was also dismissed by the learned Trial Court vide its order dated 05.03.2021.

6. The petitioner then filed an application praying for extension of time for execution of the Local Commission as also for making compliance with Order XXXIX Rule 3 CPC. The petitioner also prayed that instead of G-1, 70, Mumal Residency, Shri Kushal Nagar, Near Riico Puliya, Sanganer, Jaipur, Rajasthan, the Local Commissioner be directed to visit the premises of the defendant/respondent at A-21, Khatri Nagar, Near RIICO Pulia, Sanganer, Jaipur-302029. The said application has now been dismissed by the Impugned Order.

7. The learned counsel for the petitioner submits that only after passing of the ex parte ad interim order dated 19.02.2021, the petitioner became aware that the impugned goods are not stored by the respondent at its address given in the Memo of Parties, which was taken from its application of the respondent filed before the Registrar of Trademarks, but instead stored at the subsequently given address. The purpose of appointment of a Local Commissioner would stand defeated if the Commissioner was to visit the premises given in the order dated 19.02.2021.

8. He further submits that the compliance of Order XXXIX Rule 3 CPC was also not made as if the same had been done before t