JUDGMENT :

K.M. Thaker, J.

This Appeal from Order arises from an order dated 29.05.2008 passed below Ex. 5 in Civil Suit No. 18 of 2008 whereby the Additional District Judge, Vadodara has passed an ad-interim injunction against the present appellant in terms of paras 38[a] and 38[b] of the injunction application (Ex. 5). The said paragraphs 38[a] and 38[b] read thus:

"38. The plaintiff, therefore, prays that:-

(a) Pending hearing and final disposal of the suit, the Hon'ble Court be pleased to restrain by an order of injunction the Defendant by themselves, their servants, agents, chemists, distributors, retailers and anybody claiming through the Defendant are not entitled to use trade mark GEMIMAC or any mark identical with or deceptively similar to the Plaintiff's reputed trade mark GERIMAC as their trade mark in respect of manufacturing, selling, exporting or distributing their goods or in any manner advertising their goods so as to pass off the goods of the Defendant as and for the Plaintiff;

(b) Pending hearing and final disposal of the suit, the Hon'ble Court be pleased to restrain by an order of injunction the Defendant by themselves, their servants, agents, chemists, distributors, retailers and anybody claiming through the Defendant are not entitled to use trade mark GEMIMAC or any mark identical with or deceptively similar to the Plaintiff's reputed trade mark GERIMAC as their trade mark in respect of manufacturing, selling, exporting or distributing their goods or in any manner advertising their goods so as to cause confusion and/or deception;"

2. The appellant, being aggrieved by the said order has approached this Court by the captioned appeal. The appellant has, essentially raised serious grievance against the impugned order on the ground that there was no basis or justification for the learned court to grant exparte injunction without issuing notice before granting the injunction, and that too without recording reasons as contemplated by and required by the provision of Rule 3 Order 39 of the Code of Civil Procedure, 1908 (hereinafter referred to as 'the Code'). The appellant has prayed that the said order may be quashed and set aside.

3. The appellant has raised below mentioned question of law, which according to the appellant, arise from the impugned order.

"(a) Whether irreparable or serious mischief will ensue to the plaintiff;

(b) Whether the refusal of exparte injunction would involve greater injustice than the grant of it would involve;

(c) The court will also consider the time at which the plaintiff first had notice of the act complained so that the making of improper order against a party in his absence is prevented.

(d) The court will consider whether the plaintiff had acquiesced for sometime and in such circumstances it will not grant exparte injunction;

(e) The court would expect a party applying for exparte injunction to show utmost good faith in making the application;

(f) Even if granted the exparte injunction would be for a limited period of time;

(g) General principles like prima-facie case balance of convenience and irreparable loss would also be considered by the Court;"

4. In view of the issues arising in this appeal, appeal deserves consideration. Hence ADMIT. Considering the facts and request of the respective counsel and with their consent, the appeal is taken up and heard for final disposal.

5. The facts involved in and relevant for the present purpose, as stated by the appellant, are briefly recapitulated below.

5.1. The case of the appellant is that it is a Public Limited Company incorporated and registered under the provisions of the Companies Act, 1956 having its registered office at Mumbai and is interalia engaged in the business activity of manufacturing and selling of pharmaceutical products. The appellant has claimed that one of the several pharmaceutical products being manufactured and marketed by it, is a medicinal preparation for respiratory disorders, which is marketed in the name and style of GEM