Important Point—Order passed by Trial Court issuing notice in an injunction application without granting ex-parte injunction, with or without recording reasons, is appealable under O-43, R-3 of CPC.

AKIL KURESHI, J.

1. This Appeal from Order is placed before the Division Bench for consideration of following question of law referred by the Single Judge:

Whether an order passed by the Trial Court issuing notice in an interim injunction application filed by the plaintiff without granting ex-parte injunction with or without recording reasons, is appealable under Order 43 Rule 1 of CPC?

2. In the Appeal from Order, the plaintiffs have challenged the order dated 03.04.2013 passed by the learned Additional District Judge, Ahmedabad (Rural) below application Exh.5 in Trademark Suit No. 4 of 2013. In the suit, the plaintiffs sought relief against infringement of trademark. Pending the suit, prayer for interim injunction was made against the defendant using its trademark - Sandesh Samachar. By order dated 03.04.2013, trial Court while issuing notice to the defendant on application for temporary injunction, recorded brief reasons for not granting ex-parte ad interim injunction. The trial Court was of the opinion that not granting ex-parte injunction would not cause irreparable damage to the plaintiffs which cannot be compensated in terms of money. This order of the trial Court has been challenged by the plaintiffs in the Appeal from Order.

3. When the Appeal from Order was taken up for hearing, learned Counsel for the defendant contended that the appeal was not maintainable. He placed reliance on the decision of the learned single Judge in case of Gujarat Small Industries Corporation vs. Rajkot Engineering Association, 1991 (2) GLH 399. On behalf of the appellants, it was contended that view of the learned single Judge in case of Gujarat Small Industries Corporation (supra) requires reconsideration. Single Judge (Akil Kureshi, J.) noticed that different High Courts had taken divergent views. Many of these decisions, though available, were not brought to the notice of the learned single Judge in case of Gujarat Small Industries Corporation (supra). Finding that the issue is one of considerable importance and would require an authoritative pronouncement by the Division Bench, the single Judge referred the above noted question for consideration by the Division Bench.

4. Since one of us (Akil Kureshi, J.) was the author of the reference order dated 11.08.2015, we had raised a preliminary issue with the learned Advocates for the parties whether the reference should be heard by a Bench of which Akil Kureshi, J. is a member. Question of permissibility and proprietary of the Bench to hear this issue, were discussed. Learned Advocates made considerable research and presented for our consideration certain decisions, to which we would make a reference. In case of R. Vishwanathan & Others vs. Gajambal Ammal & Others, AIR 1963 SC 1, the Supreme Court considered the issue where one of the members to the Full Bench was one Mr. Justice Balakrishanaiya. Challenge of the appellants was that the learned Judge had earlier delivered judgment on the merits of the dispute and he had thereafter referred the case to the Full Bench. He, therefore, could not have set as a member of the Full Bench after making up his mind on the merits of the appeals, since this would be opposed to the principles of natural justice. In this context, the Supreme Court observed as under:

52. It may appear, that in the absence of a statutory provision the fact that a Judge sits in appeal or in an application against a judgment after he has decided the case would not by itself render the judgment of the court invalid. In a strictly technical sense therefore it is true to say that a Judge is not incompetent to sit in an appeal or application against his own judgment. But the Courts are not merely concerned to deal with cases in a rigid spirit of legalism. It is of the essence of a judicial trial that the atmosphere in which it is held must be of calm detachment and dispassionate and unbiassed application of the mind. It may be pertinent to observe that since the Federal Court