Ex-parte orders for appointing a Court Commissioner in intellectual property rights cases are justified to preserve evidence and prevent tampering.

CAV ORDER

This writ petition is filed by the plaintiff under Article 227 of the Constitution of India , challenging the order dated 29.11.2024 passed by the XIX Additional City Civil and Sessions Judge, Bengaluru on IA No.3 in O.S.No.8367/2024, refusing to grant ex- parte order for appointment of Commissioner.

2. The petitioner/plaintiff filed a suit for perpetual injunction, restraining the defendants, their agents, contractors, his employers, partners or any other person/entity claiming through or under the defendants from directly or indirectly copying, sharing or using in any manner the confidential/proprietary information/material belonging to the plaintiff, inter alia, as referred in the forensic investigation report produced as document 20 and a decree of mandatory injunction directing the defendants, their agents, contractors, his employers, partners or any other person/entity claiming through or under the defendants to deliver up to the plaintiff all copies of, and destroy any remaining physical and digital copies of the confidential/proprietary information/material belonging to the plaintiff.

3. Along with the plaint, plaintiff has filed IA No.2 under Order XXXIX Rules 1 and 2 r/w. Section 151 of CPC with a prayer to grant an ad-interim order of ex- parte temporary injunction. IA No.3 is filed under Order XXVI Rules 1 and 9 r/w. Section 151 of CPC with a prayer to grant an ex-parte interim order to appoint a Commissioner. On consideration of IA Nos.2 and 3, the trial court issued an ad-interim ex-parte temporary injunction order against the defendants, restraining them, their agents, contractors, employers, partners or any other person/entity claiming through or under the defendants from directly or indirectly copying, sharing or using in any manner the confidential/proprietary information/ material belonging to the plaintiff, in the interest of justice and equity, till the next date of hearing. Regarding IA No.3, for appointment of Commissioner is concerned, refused to pass an ex-parte order, but only issued an emergent notice. Being aggrieved by the order dated 29.11.2024, the plaintiff is before this Court.

4. This Court, on 06.12.2024, passed an ex-parte order appointing the Court Commissioner to carry out search and seizure of the operation of the data storage media, files, folders, documents etc. in the premises of the respondents/defendants and directed the Commissioner to execute the warrant for seven days from 20.12.2024 to 28.12.2024 and report the same to this Court on 06.01.2025. On 06.01.2025, the Court Commissioner has submitted a report in a sealed cover and the same is taken on record.

5. The learned counsel for the respondents/ defendants has appeared on 06.01.2025 and raised a preliminary objection regarding the maintainability of the writ petition and ex-parte interim order granted by this Court. On that issue, the matter was heard on 15.01.2025.

6. The learned Senior Counsel appearing for the respondents/defendants raised the following contentions:

(i) Firstly, the petitioner/plaintiff has sought to invoke the extraordinary jurisdiction of this Court under Article 227 of the Constitution of India . However, the petitioner has failed to make out any case for availing and invoking the extraordinary jurisdiction of this Court.

(ii) Secondly, the petitioner/plaintiff has filed an application for appointment of a Commissioner under Order XXVI Rule 9 of CPC . Since the trial court has no power to order the appointment of ex-parte Court Commissioner under Order XXVI Rule 9 of CPC , the trial court has rightly issued summons to the defendants. There is no error or illegality in the order passed by the trial court.

(iii) Thirdly, the ex-parte interim order passed by this Court, appointing the Court Commissioner under Order XXVI Rule 9 of CPC is without jurisdiction. The Court Commissioner can be appointed only after the service of notice to the respondents/defendants.

Therefore, the report submitted by the C