( 1 ) ). Admit. Mr. A. L. Shah, learned Advocate appearing on caveat for the plaintiffs waives service of the notice. In the facts and circumstances of the case, the appeal is taken up for final hearing today.

( 2 ) ). This appeal is filed against an ex-parte order passed by the Assistant judge, Baroda on 3/04/1992, granting ad-interim relief in favour of the plaintiffs under the provisions of Order 39 Rule 3 of the Code of Civil procedure, 1908 (hereinafter referred to as the Code ).

( 3 ) ). To appreciate the rival contentions of both the parties, few relevant facts may now be stated. The plaintiffs filed a Suit in the District Court, baroda, being Special Civil Suit No. 1 of 1992, for permanent injunction restrainirg the defendant from using in any manner, in relation to pharmaceutical or medicinal preparations, the impugned trade mark CLOFRANIL or any other distantly similar trade mark so as to infringe the trade mark registered in favour of the plaintiff No. 1, bearing No. 233145 under the style of anafranil. Alongwith the plaint, the plaintiffs file an application Exh. 5 for interim relief. It appears that the learned Assistant Judge, after hearing the learned Counsel for the plaintiffs and after perusing documents and affidavit, passed the following order :"ad-INTERIM injunction is granted. Defendant is restrained from using in any manner, in relation to pharmaceutical or medicinal preparations, the impugned trade mark CLOFRANIL till 21-4-1992. Show cause notice be issued to the defendants returnable on 24-4-1992. Urgent process and notice be issued. "it is against that order the present appeal is filed by the defendant in this court.

( 4 ) ). Mr. K. G. Vakharia, Senior Advocate appearing with Mr. Y. J. Trivedi, for the appellant submitted that the order passed by the trial Court granting ex-parte ad-interim relief, without issuing notice to the present appellant is contrary to law, without jurisdiction and requires to be quashed and set aside. He submitted that on merits CLOFRANIL and ANAFRANIL are entirely distinct and the point is concluded in a number of decisions of the Supreme Court as well as this Court. He also submitted that, if ex-parte ad-interim relief is continued, irreparable injury and loss would be caused to the appellant, inasmuch as the defendant has not only started manufacturing the drug in question, but has also put it in market for sale and since last more than one month, sale is going on. He, therefore, submitted that, not only the trial Court should be directed to hear and dispose of the matter (Exh. 5) immediately, but the order granting ex-parte ad-interim injunction should also be suspended till the disposal of application Exh. 5.

( 5 ) ). Mr. G. N. Desai, learned Counsel appearing with Mr. A. L. Shah for the plaintiffs, on the other hand, supported the order passed by the trial Court, inter alia. contending that the appeal filed by the appellant against an order granting ex-parte ad-interim relief, is not maintainable at law, since the order is passed by the Court under Rule 3 of Order 39 of the Code. Alternatively, he submitted that even if the appeal filed by the appellant is maintainable, as held by the division Bench of this Court in the case of Patel Jasmat Sangaji v. Gvjarat electricity Board and Ors. , reported in [1982 (2)] XXIII (2) GLR 104, this Court may not exercise its appellate jurisdiction, since according to him, this cannot be said to be a "rarest of rare case", which requires interference at this stage. On merits, he submitted that the test which is sought to be applied by the learned Counsel for the appellant is not a proper one and on merits, he would be in a position to satisfy the Court that infringement of trade mark has been committed by the defendant. He further submitted that the Court, undoubtedly, has jurisdiction to grant ex-parte ad-interim relief, if it is satisfied for the same and reasons are recorded to that effect, as contemplated by the proviso t