Point of Law: “3A Where an injunction has been granted without giving notice to the opposite party, the court shall make an endeavour to finally dispose of the application within thirty days from the date on which the injunction was granted; and where it is unable so to do, it shall record its reasons for such inability.”

ORDER :

1. Heard learned Senior Advocate Shri Kamal Trivedi assisted by learned advocate Mr. Sachin Vasavada with learned advocate Mr.Samrat Mehta with learned advocate Mr. Aditya Chitale appearing for the appellant and learned advocate Mr. Hashit Tolia with learned advocate Mr. Vishal Thakker with learned advocate Ms. Rushvi N. Shah for the respondent through video conference.

2. By this Appeal from Order under Order 43, Rule 1(r) of the Code of Civil Procedure, 1908 (herein after referred to as 'the Code' for short), the appellant has challenged the exparte adinterim order dated 29.04.2021 in Trademark Suit No. 538 of 2021 passed by the learned Chamber Judge, City Civil Court, Ahmedabad.

3. The learned Chamber Judge, City Civil Court, Ahmedabad, by the impugned order, granted adinterim injunction in terms of Para 38 (A to C) of the injunction application (Notice of Motion) till 10.05.2021.

4. It is the case of the appellant that the impugned order was served on 13.05.2021, therefore, the appellant could not appear before the learned Chamber Judge on 10.05.2021. The appellant, thereafter, has filed this appeal before this Court.

5. From the above chronology events, it appears that the appellant could not appear on 10.05.2021 and thereafter, the learned Chamber Judge has adjourned the matter on 25.05.2021.

6. The learned Senior Advocate Shri Kamal Trivedi submitted that the learned Chamber Judge could not have granted exparte adinterim injunction contrary to provisions of Rule 3 of the Order – 39 of the Code. He further submitted that the Defendant – Original Plaintiff, after having knowledge of the trademark being used of the appellant in the month of January, almost after four months initiated the proceedings by filing Trademark Suit No. 538 of 2021. Learned Senior Advocate Shri Trivedi invited the attention of this Court to the impugned order, by which, the adinterim injunction was granted to submit that the order does not disclose sufficient reasons of the ingredients of the primafacie case, balance of convenience and irreparable loss as provided by Rule (1) and (2) of the Order 39 of the Code. It was further submitted that the impugned order is required to be quashed and set aside and the matter be remanded and the learned Chamber Judge be directed to hear the matter on merits for deciding the Injunction Application (Notice of Motion).

7. On the other hand, the learned advocate Mr. Tolia submits that instead of quashing and setting aside the order, let time table be fixed for hearing Injunction Application (Notice of Motion), to which, the respondent plaintiff would adhere to and see that the same be disposed of as early as possible, as any observations made by this Court would come in the way of the plaintiff as well as the respondent on merits.

8. The Division Bench of this Court in such similar facts in case of Lakhani Namkeen and AA Gruh Udhyog versus Isha Snacks Private Limited on in Appeal from Order No. 99 of 2019, has held as under:

6. The main controversy involved in the present case is whether the impugned order meets with the requirements of rule 3 of Order XXXIX of the First Schedule to the Code which have been held to be of a mandatory nature in a catena of decisions.

7. Before adverting to the merits of the case, reference may be made to rule 3 of Order XXXIX of the First Schedule to the Code, which reads thus:

“3. Before granting injunction, Court to direct notice to opposite party. The Court shall in all cases, except where it appears that the object of granting the injunction would be defeated by the delay, before granting an injunction direct notice of the application for the same to be given to the opposite party : Provided that, where it is proposed to grant an injunction without giving notice of the application to the opposite party, the court shall record the reasons for its opinion that the object of granting the injunction would be defeated by delay, and require the applicant

(a) to deliver to the opposite par