Gujarat High Court
Nishant Construction Private Limited vs Ratnaakar Estate Developer Private ... on 8 September, 2015
Author: S.G.Shah
Bench: S.G.Shah
C/SCA/14290/2015 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 14290 of 2015
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NISHANT CONSTRUCTION PRIVATE LIMITED....Petitioner(s)
Versus
RATNAAKAR ESTATE DEVELOPER PRIVATE LIMITED....Respondent(s)
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Appearance:
MR MANAV A MEHTA, ADVOCATE for the Petitioner(s) No. 1
NOTICE SERVED BY DS for the Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE S.G.SHAH
Date : 08/09/2015
ORAL ORDER
1. Learned advocate seeks permission to add following phrase in paragraph 4(A) on page 13 between words "Mirzapur" and "and" in the first line submitting that it is a typographical and clerical error - "refusing to grant ad-interim relief". Permission is granted as prayed for. The petition is to be amended suitably.
2. Heard learned senior advocate Mr.Saurabh Soparkar with learned advocate Mr.Manav Mehta for the petitioner. Respondent though duly served, has failed to appear. The record shows that this Special Civil Application is filed at an interlocutory stage, when trial Court has failed to grant ex-parte ad-interim injunction as prayed for, more particularly, though the judgment of Hon'ble Supreme Court between Laxmikant V.Patel Vs. Chetanbhai Shah & Anr. reported in (2002)3 SCC 65 is referred and shown to the trial Court wherein Hon'ble the Supreme Court has specifically observed that "once a case of passing off is made out the practice is generally to grant a prompt ex-parte injunction followed by appointment of local Commissioner, if necessary".
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3. It is also to be recorded herein that above principle is followed by the Hon'ble Supreme Court in following two cases - (1) Midas Hygiene Industries (P) Ltd. & Anr. Vs. Sudhir Bhatia & Ors. reported in (2004)3 SCC 90 and (2) Satyam Infoway Ltd. Vs. Siffynet Solutions (P) Ltd. Reported in (2004)6 SCC 145. Whereas the judgment is followed in Ramdev Food Products Pvt.Ltd. Vs. Arvindbhai Rambhai Patel reported in AIR 2006 SC 3304.
4. By observing so, the Hon'ble Supreme Court has further confirmed that the discretion exercised by the trial Court and High Court against plaintiff in not granting interim ex-parte relief, is neither reasonable nor judicious and it is further stated that, therefore, grant of interlocutory injunction to the plaintiff could not have been refused.
5. In view of such facts and circumstances, when plaintiff has made out a prima facie case, there is a need to interfere with the interlocutory order passed by the trial Court. Though, generally, such interlocutory order cannot be interfered, it is necessary to do so since this is a petition under Article 227 of the Constitution of India to rectify the non-exercising of the jurisdiction by the Civil Court in its true perspective. Now, when the trial Court is yet to decide the application for interim relief, this petition is allowed with a direction that the trial Court shall decide application at Exh.5 within 30 days from the date of receipt of copy of this order, till then there would be ad-interim relief in favour of the petitioner
- plaintiff in terms of paragraph 4(A). However, the trial Court has to decide the application for interim relief purely in accordance with law and evidence before it, i.e. without being influenced by the present order. Direct service is permitted.
(S.G.SHAH, J.) binoy Page 2 of 2 HC-NIC Page 2 of 2 Created On Wed Sep 09 00:55:41 IST 2015