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GAUHATI HIGH COURT
J. N. SARMA, J.
Super Candles, and another -Appellant
Versus
Mahabir Candle Works and another -Respondent
MAF (T) No. 264 of 1996,
Decided On : 12-06-1996
APPEAL - [KEYWORD] - SUBJECT - ACT SECTION LIST - SUMMARY
Fact of the Case:
The respondents filed a suit for declaration and permanent injunction and for rendition of accounts under Section 29 for restraining infringement and under Section 27(2), Section 105(C) and Section 106 alleging passing off under Trade and Merchandise Marks Act, 1958 (hereinafter called the Act). The appellants/petitioners challenged the legality and validity of the ex-parte order of injunction passed against them.
Finding of the Court:
The court held that the impugned order was devoid of any reason and that the learned Judge had simply stated certain statements without any reason whatsoever. The court also held that the requirement of law was that the Court must come to a finding that the object of granting injunction would be defeated by delay. Since there was no such findings in the impugned order, it was liable to be quashed on that ground also.
Issues: Whether the impugned order was devoid of any reason. Whether the requirement of law was that the Court must come to a finding that the object of granting injunction would be defeated by delay.
Ratio Decidendi: The court relied on the Full Bench decision of the Gauhati High Court in Akmal Ali v. State of Assam, wherein it was held that an ex parte order of injunction, whether speaking or non-speaking, is appelable under O. 43, R. 1(r) as well as revisable under O. 39, R. 4 of the Code of Civil Procedure, 1908.
Final Decision: The appeal was allowed and the order dated 25th March, 1996 passed by the District Judge, Kamrup in Title Suit No. 1/96 was quashed.
JUDGMENT:- This appeal has been filed against the ex-parte order dated 25th March/96 in T. S. No. 1 of 1996 by the Learned District Judge, Kamrup.
2. A suit was filed by the respondents for declaration and permanent injunction and for rendition of accounts under Section 29 for restraining infringement and under Section 27(2), Section 105(C) and Section 106 alleging passing off under Trade and Merchandise Marks Act, 1958 (hereinafter called the Act). The following reliefs were prayed for :
(i) For permanent injunction restraining the defendants their servants, agents, atterneys etc. from manufacturing selling and / or offering for sale directly or indirectly dealing in candles under the trade mark PRINCE FIGHTER or any other trade mark as may be deceptively similar to the trade Mark ROCKET and DEVICE of the Rocket and particular get up and passing of the candles of the defendants as and for that of the plaintiffs.
(ii) For declaration that the plaintiffs and their users of franchise are the registered owners of the candles with the registered trade mark Rocket and Device of the Rocket with distinctive get up and is only authorised to manufature and market the said products and further declaration that the using of the trade mark Prince Fighter by the defendants deceptively and confusingly similar to that of the plaintiffs is illegal and infringement and passing off under Section 29 and under Section 27(2), Section 105(C) and 106 of Trade and Merchandise Marks Act, 1958.
(iii) For rendition of accounts.
3. Along with the plaint an application was filed to ad-interim injunction under Sections 105 and 106 of the Act of 1958 read with order 39, Rule 1, 2 and 7 of the code of Civil Procedure. The prayer made in that application is as follows :
(i) To grant an ex-parte ad-interim injunction restraining the opposite parties in any way using the distringtive get up, design and arrangement of the petitioners trade mark Rocket and Device of Recket and in any way passing off the candales marked with the labels having distinctive get up design and arrangement of the petitioners trade mark in particular and restrain them not to sale it.
4. The matter came first for orders on 20-3-1996 before the learned District judge. He heard the matter in part and on that date fixed the next date on 22-3-1996. On 22-3-1996 the Learned counsel for the plaintiffs was not ready to argue the matter and the matter was further adjourned to 25-3-1996. On 25-3-1996 the matter was heard and the Learned Judge passed the following orders :
"On perusal of the plaint and the annexed documents and on consideration of the submissions, of the learned counsel for the plaintiffs, I am satisfied that the plaintiffs have a strong prima facie case to go into trial. I am also satisfied that in the entire circumstances, the plaintiffs prayer for ex-parte ad-interim injunction needs to be considered without giving notice of the application to the defendants so as to protect the interest of the, plaintiff. I agree with the submissions of the learned counsel for the plaintiffs that unless the ad-interim injunction is granted, the plaintiffs would be put to serious loss on account of marketing of other products under a trade mark deceptively similar to that of the plaintiffs. I therefore allow that prayer and order that an ad-interim order of injunction be issued against the defendants as applied for by the plaintiffs. Necessary notices shall also be issued simultaneously on the defendants to show cause as to why the ad-interim injunction should not be made absolute till disposal of the suit. "
5. It is the legality and validity of this ex-parte order of injunction which is challenged in this appeal.
6. I have heard Mr. M. K. Choudhury, Learned Advocate of the appellants/petitioners and Mr. C. K. Sarma Baruah, Learned Advocate for the respondents.
6. A caveat was filed on behalf of respondents and on 10-4-1996 an interim order was
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