Point of Law: appellant has not filed any objection/application before the Trial Court under Rule 4 of Order 39 C.P.C. to vacate the ex-parte ad-interim injunction. Therefore, it cannot be said to be a final order in nature mentioned in Circular dated 16.08.2017 and, therefore, the appeal is not maintainable.

JUDGMENT :

1. Heard Sri Navin Sinha and Sri Anurag Khanna, learned Senior Counsels assisted by Sri Mohit Singh, learned Counsel for the appellant and Sri Shashi Nandan, learned Senior Counsel assisted by Sri Rahul Sahai and Sri Sagar Chandra, learned Counsels for the respondent.

2. The instant first appeal from order under Order 43 Rule-1 (r) of the Code of Civil Procedure (in short 'C.P.C.') has been filed against the order dated 23.07.2021 passed by the District Judge, Rampur in Original Suit No.1 of 2021 (Redico Khaitan Ltd. Vs. M/s India Glycols Ltd.) whereby by way of ex-parte ad-interim injunction under Order 39 Rule 1 & 2 read with Section 151 C.P.C. restrained the appellant from manufacturing, exporting, marketing or selling its product under the bottle of “Amazing Vodka”.

3. Sri Shashi Nandan, learned Senior Counsel for the appellant raised the preliminary objection about the maintainability of the appeal under Order 43 Rule-1 (r) C.P.C. and submitted that the proper remedy available to the defendant-appellant to file objection/application for vacating the ex-parte ad-interim injunction order as provided under Order 39 Rule-4 C.P.C. In support of his contention he placed reliance on judgment of this Court passed in the case of Gurmej Singh and others Vs. Ranjit Kaur and others reported in 2020 (12) ADJ 561, judgment of Hon'ble Apex Court in Civil Appeal No.1283 of 1967, (M/s Lakshmiratan Engineering Works Ltd. Vs. Asst. Commissioner (Judicial)-I, Sales Tax, Kanpur Range Kanpur and another) reported in AIR 1968 SC 488 and the judgment of Madras High Court in the case of A. Venkatasubbiah Naidu vs. S Challappan & Others reported in 2000 7 SCC 695.

4. On the other hand, Sri Navin Sinha, learned Senior Counsel for the appellant submits that the appeal under Order 43 Rule-1 (r) is maintainable. In support of his submission he placed reliance on a full bench judgment of this Court in the case of Zila Parishad, Budaun and others Vs. Brahma Rishi Sharma reported in AIR 1970 All 376 (FB).

5. I have considered the rival submissions of the parties on the preliminary question regarding maintainability of the appeal and gone through the record.

6. It reflects from the record that on 23.07.2021, the plaintiff-respondent filed Original Suit No.1 of 2021 along with an application (9-C) under Order 39 Rule 1 & 2 read with Section 151 C.P.C. for grant of ad-interim injunction and on the same day after recording prima facie satisfaction, ex-parte ad-interim injunction was granted till the next date fixing 16.08.2021 for disposal of the application after issuing notice to the respondent. The relevant portion of the order dated 23.07.2021 passed by the District Judge, Rampur is quoted here-under:-

“Hence, it is clear that the plaintiff has been using its Trade Mark and Trade Design in respect of MAGIC MOMENTS since 2007-2008. Whereas, it is stated by the plaintiff (by filing annexure-M) that the defendant has applied on 20.01.2021 for registration of its trade mark AMAZING proposed to be used, which has been objected. Thus, prima facie it appears that the defendant has copied the plaintiff's trademark and trade dress/label. In view of this Court the plaintiff has made out strong prima facie case for grant of ex-parte ad-interim orders of injunction.

Accordingly, till the next date, the defendant are restrained from manufacturing, exporting, marketing, offering for sale, selling, advertising in any manner under the impugned bottle of Amazing which is identical or similar to the plaintiff's registered design of MAGIC MOMENTS.

District Judge,

Rampur.”

7. Let us now examine the scheme of Rules 1 to 4 Order XXXIX. Rules 1 and 2 provides for the making of an interim order of Injunction. Rule 3 firstly provides that an interim injunction should ordinary be granted after notice to the adversary party. Secondly, it provides that notice may be dispensed with where the Court is satisfied that it would defeat the purpose of granting an injunction. Rule 4 provid