In Comm. Appeal (L) No.31992 of 2022-BOM HC- When there is time limited ad-interim injunction and matter is listed on specific date, defendant can file Affidavit-in-Reply to show why on that particular date ad-interim order should not be continued or should be varied: Bombay HC
Justices G.S. Patel &  Gauri Godse [07-10-2022]

 

Read Order: KEWAL ASHOKBHAI VASOYA AND ORS V. SUARABHAKTI GOODS PVT LTD 

Mansimran Kaur

Mumbai, October 11, 2022: The Court is not denuded of the power to continue the injunction irrespective of any questions of disclosures if it feels that the interest of justice so demands, the Bombay High Court has observed.

The Division bench of Justice G.S. Patel and Justice Gauri Godse disposed of the instant appeal preferred by the appellants by observing that the submissions in the Affidavit in Reply by a defendant opposing the continuance of a without notice ad-interim time-limited injunction cannot be ignored by a court on the basis that no substantive application under Order 39 Rule 4 CPC was filed. 

The original Defendants in the Commercial Intellectual Property Suit had come in appeal against a without notice ad- interim order dated September 15, 2022. The order was passed on the application of the original plaintiff, which was the respondent to the appeal. By the impugned order, Justice Chagla granted a time-limited ad interim injunction and appointed a Court Receiver for a limited purpose. He also passed the necessary directions under Order 39 Rule 3 of the Code of Civil Procedure, 1908 (“CPC”).

The suit was a trademark infringement action combined with a cause of action in passing off. A Leave Petition under Clause 14 of the Letters Patent to combine the two causes of action is pending.

It was the case of the defendant that the plaintiff’s application could not have been granted without notice. He claimed   that there was extensive suppression in the plaint, including, importantly, that the defendant were registered proprietors of the rival mark although the registration was subsequent to that of the plaintiff. 

The Bench was concerned by the fact that the application in the present case was made without notice to the other side.  To put it briefly and to get this aspect out of the way, an ex parte application is one-sided, without notice to the opponent. Where a party does not appear despite notice, and therefore, by conduct, declines to present its case, such an order is not, strictly speaking, ‘ex parte’. A court can compel notice. It can compel attendance. It cannot compel argument, the Court stated. 

There are many legal situations where the word ex parte is used to mean that there is only a party without an opponent — frequently in uncontested testamentary matters, for example, where though there is no opponent, yet a court order or direction is sought. For the rest of this order, therefore, the Court preferred not to use this expression. Instead, it used the phraseology of the CPC: with notice and without notice, the Court noted while taking into account the provisions of Order 39 Rule 1 , 2 and 3 of the CPC. 

It was further stated by the Court that the general rule is that both sides must be heard before an interlocutory order is made under Order 39. Moving without notice is the exception to the rule. But this casts a burden on the plaintiff who seeks to move without notice. 

Among other things, Order 39 Rule 3 and its proviso sets out the requirement that the court must record its reasons that the purpose of the injunction would be defeated by the delay, i.e., the delay in giving notice. Then there are the provisions of sub clauses (a) and its further sub clauses (i) to (iii), and sub clause (b) of Order 39 Rule 3. 

This proceeds on the principle that where a court is being asked to give an order without notice, the duty of the plaintiff and its advocate is to present to the Court a fair picture so that the balanced order can be made.

In addition to the same, the Court noted that these without notice orders have inbuilt safeguards and checks and balances. They are meant precisely to facilitate a defendant applying to the single Judge himself or herself by making out an appropriate case to vacate entirely, or to modify or limit the without notice and interim order.

Another aspect that arose was whether it was invariably necessary for a defendant against whom there is such a time-limited temporary ad- interim order to file a substantive application under Order 39 Rule 4.

It was further noted by the Court, “To be perfectly plain about this, when there is a timelimited ad interim injunction and the matter is listed on a specific date, it is open to the defendant to file an Affidavit in Reply to show on that day why that ad interim order should not be continued or should be varied. After all, the purpose of listing the matter after a few days is precisely to consider whether the ad-interim injunction ought or ought not to be continued.”

The court is not denuded of the power to continue the injunction irrespective of any questions of disclosures if it feels that the interest of justice so demands. Nothing prevents the defendants from filing an Order 39 Rule 4 application, however, the Court held that this is not a requirement that can be insisted on. The submissions in the Affidavit in Reply by a defendant opposing the continuance of a without notice ad-interim time-limited injunction cannot be ignored by a court on the basis that no substantive application under Order 39 Rule 4 was filed, the Court noted. 

It is in these circumstances, the Court stated that it failed to find any reason to  interfere with the impugned order at this stage. The liberty or liberties reserved to the defendants in appeal were  preserved intact, and the Defendants may avail of them in any manner contemplated by the impugned order, that is to say by giving notice of 72 hours and moving, or opposing the Plaintiff’s interim application on the returnable date of October 17, 2022.  The appeal was disposed of in these terms.