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Gujarat High Court
Judgename :M.S.Shah
J.M.S.LABS - Appellant
Versus
YUSUFALI EESMAIL HADVAID - Respondent
C.A. 438 of 1997
Decided On : 09/01/1997
The Court should impose such terms and conditions on the parties as a part of the order granting or refusing injunction which would not only make it non-profitable to the successful party at the ad interim/interim stage to delay the proceedings but which may also prompt both the parties to come forward before the Court for early hearing of the interim injunction application or the suit, as the case may be.
[Para 7]
While granting exparte injunction, the Civil Court shall -
(i).
record the reasons for its opinion that the object of granting the injunction would be defeated by waiting till the first returnable date;
(ii).
require the applicant, in express and clear terms, to comply with the requirements of clauses (a) and (b) to the proviso to Rule 3 of Order 39 CPC, since compliance with these provisions is vital to the date schedule being adhered to;
(iii).
fix the firm dates of filing reply to the interim injunction application, rejoinder thereto and a tentative date of hearing the application with a statement in the notice that non- compliance with the schedule may result into adverse order being passed against the defaulting party;
(iv).
state whether the Court has considered imposing any specific terms and conditions while granting the exparte injunction;
Even where the Civil Court merely issues notice on the interim injunction application, it shall set down a date schedule in the notice putting the defendants to notice that failure to file reply as per the schedule may entail an ad-interim injunction order passed against them.
[Para 8]
(b) Civil Procedure Code, 1908 - Order 39 Rule 3 - Exparte interim injunction served on defendant appellant on 20.8.1997 - Instead of filing reply on returnable date of 29.8.1997 defendant appellant filed the present appeal - Court observed that course adopted by defendant was not proper - However in view of arrangement indicated both parties for early filing of reply by defendant & subsequent rejoinder thereto by plaintiff, court directed trial court to decide the same as early as possible - Appellant defendant submitted loss of business during the period for which court directed respondent plaintiff to deposit Rs. 40,000 subject to its disposal order by trial court considering rival contentions.
The appellant-defendant was served with the ex parte interim injunction on August 20, 1997, It is surprising that the appellant could draft and affirm stay application on August 21, 1997 for filing it in this Court, but could not file reply to the interim injunction application on the returnable date i.e. August 29, 1997. Since that was not done entertaining the present appeal would only encourage defendants to approach this Court rather than to approach the trial Court with a reply and with a request to vacate the ex parte injunction.
[Para 9]
Learned Counsel for Petitiner Appellant states that the defendant will file reply to the interim injunction application on or before September 15, 1997 and Mr. Thakkar states that the plaintiff will file rejoinder thereto within ten days thereafter. In view of the aforesaid arrangement, it is directed that the trial Court shall take up the interim injunction application for hearing latest by September 30, 1997 and shall decide the same as early as possible, preferably within ten days thereafter.
[Para 10]
In order to take care of the grievance made by Mr. Shah that the business of the defendant is adversely affected by the ex parte order, Mr. Thakkar states that the plaintiff would deposit a sum of Rs. 40,000/- in the trial Court within a period of fifteen days from today.
[Para 11]
If the trial Court comes to the conclusion that the ex parte injunction deserves to be vacated and passes such an order, the trial Court shall also pass an order as to whether the said amount or part thereof should be given to the defendant or not. In case the interim injunction application is allowed, the trial Court shall also consider whether the plaintiff should be permitted to withdraw the said amount.
[Para 12]
( 1 ) THIS appeal challenges the ex-parte ad-interim injunction dated august 19, 1997 granted by the learned Extra Assistant Judge, Gondal restraining the appellant-defendant from using the trade mark labels/artistic works of J. M. S. and/ or NEW J. M. S. LAL LEP as per Annexure-B (colly.) to the interim injunction application on pouch/packet, carton/box and pamphlet having identical and deceptively similar art works, designs, get-up, lay-out, placement of features in identical colour scheme with the identical name, LAL LEP or any other identical or deceptively similar trade mark labels/artistic works to the plaintiffs trade mark labels/artistic work of LAL LEP as per Annexure-A (colly.) to the interim injunction application and thereby passing off or enabling others to pass off their Ayurvedic preparation used for bone-setting and also from infringing the copyrights and trade mark rights of the plaintiff in any manner.
( 2 ) MR. Shah, learned Counsel for the appellant-defendant submitted that the trial court ought not to have granted ex-parte injunction in view of the provisions of order under Order 39, Rule 3 C. P. C. The reasons given by the trial Court for granting exparte injunction are germane to the merits of the matter rather than to explain as to how delay would defeat the ends of. Reliance has also been placed on certain decisions of this Court, viz. , P. Chidcambaram v. Joint Civil Judge (J. D.), narol, Ahmedabad , AIR 1986 Guj. 17; Indian Oil Corporation LIMITED, Baroda v. M/s. Gandhi Travels and Tours, Baroda, [1988 (1)] XXIX (1) GLR 316; Jalaram ceramic LIMITED v. Pedder and Pedder Tiles LIMITED, Appeal from Order No. 236 of 1997 and Prestige AM-Polycontainers LIMITED v. Mauser Merke Gmbh, Schilgesstrabe , Appeal from Order No. 29 of 1994. It is, therefore, submitted that the trial court should not have passed such an ex-parte order without first giving the defendant an opportunity of being heard or without recording reasons as to why it was necessary to grant an ex-parte interim injunction without giving the defendant an opportunity of being heard.
( 3 ) MR. P. M. Thakkar learned Counsel for the respondent-plaintiff has raised a preliminary objection to maintainability of the appeal. He stated that the trial Court had fixed the hearing of the interim injunction application on August 29, 1997. On the returnable date the defendant applied for adjournment before the trial Court for filing its written statement and, therefore, the plaintiff also submitted an application for extending the ad interim injunction to which the learned Advocate for the defendant agreed that the ad interim injunction may be extended till the next date of hearing. Mr. Thakkar has, therefore, submitted that since the appellant-defendant had prayed for adjournment before the Court on the returnable date and also agreed to the extension of the ad interim relief, the present Appeal from Order is not competent.
( 4 ) MR. R. R. Shah, learned Counsel for the appellant-defendant submitted that nine days time was not sufficient for filing written statement to the application for interim injunction and therefore, the appellant had no alternative but to request for time. Otherwise also the appellant was taking steps to challenge the said order before this Court and the stay application to be filed in this Court was already affirmed on August 21, 1997 but the order of the trial Court was not legible and therefore, he could not approach this Court earlier. He further submitted that once the plaintiff enjoys ex-parte injunction, hearing of the interim injunction application generally may not take place for months together and the defendant would have to suffer, even if he has a good defence on merits.
( 5 ) ALTHOUGH it might appear at the first blush that the preliminary objection raised on behalf of the respondent-plaintiff and the objection raised on behalf of the appellant-defendant regarding violation of the provisions of Order 39, Rule
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