Gujarat High Court
Cipla Limited vs M/S Palak Pharma & on 26 September, 2017
Author: C.L.Soni
Bench: C.L. Soni
C/AO/282/2017 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
APPEAL FROM ORDER NO. 282 of 2017
With
CIVIL APPLICATION NO. 12014 of 2017
In
APPEAL FROM ORDER NO. 282 of 2017
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CIPLA LIMITED....Appellant(s)
Versus
M/S PALAK PHARMA & 1....Respondent(s)
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Appearance:
MR MIHIR THAKOR, SENIOR ADVOCATE with MR. RAHUL R DHOLAKIA,
ADVOCATE for the Appellant(s) No. 1
MR AB GATESHANIYA, ADVOCATE for the Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE C.L. SONI
Date : 26/09/2017
ORAL ORDER
1. The affidavit in reply tendered by learned advocate Mr. Gateshaniya is taken on record.
2. Learned senior advocate Mr. Thakor with advocate Mr. Dholakia for the appellant states that in view of the order made in civil application for condonation of delay wherein the appellant was permitted to delete respondent No.2 from its cause title and since the respondent No.2 is a formal party and Page 1 of 7 HC-NIC Page 1 of 7 Created On Sun Oct 01 20:32:07 IST 2017 C/AO/282/2017 ORDER the only contesting party is the respondent No. 1 - the original plaintiff for the purpose of deciding the present appeal, the appellant be permitted to delete respondent No.2 from the cause title of the appeal as also from the civil application. Permission as sought for is granted. The respondent No.2 stands deleted from cause title of the present appeal as also from the civil application. Necessary amendment shall be made in this regard.
3. Since the appeal is taken up for final disposal with the consent of the advocates appearing for the parties, the appeal is admitted. Learned advocate Mr. Gateshaniya waives service of admission of appeal on behalf of the respondent No.1.
4. The present appeal is preferred under Order 43 of the Civil Procedure Code, 1908 (the 'Code') against the order dated 27.03.2017 passed by learned Chamber Judge, City Civil Court No.10, Ahmedabad below application Ex-6 & 7 in Civil Suit No. 2685 of 2015.
5. The suit is filed by the respondent No.1 under the Trade Marks Act, 1999 for permanent injunction, for passing of action and for accounts of profit against the appellant. In such suit, Page 2 of 7 HC-NIC Page 2 of 7 Created On Sun Oct 01 20:32:07 IST 2017 C/AO/282/2017 ORDER the respondent No.1 filed application at Ex-7 with notice of motion at Ex-6 for temporary injunction restraining the appellant and the respondent No.2- the defendants in the suit from manufacturing and marketing medicinal, pharmaceutical preparation and from passing of the products under the mark "I Omega" which is stated to be deceptively similar to the mark of the respondent No.1. Such application has came to be allowed by impugned order.
6. Learned senior advocate Mr. Thakor appearing with advocate Mr. Dholakiya submitted that the appellant had no knowledge about filing of the suit as the appellant was never served with the summons in the suit and therefore the appellant could not appear in the suit and could not file either written statements or reply in the suit. Mr Thakor submitted that though the appellant was not served the summons / notice in the suit, the injunction application was taken up for hearing in their absence and after a period of two years from the date of filing the suit, the injunction came to be granted by the impugned order. Mr Thakor submitted that though the application was taken for grant of ad-interim injunction, however, the entire application at Ex-7 was finally allowed without hearing the appellant.
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7. As against the above arguments, learned advocate Mr. Gateshaniya appearing for the respondent No.1 - plaintiff submitted that appellant was served with summons/ notice of the suit through registered post, still however the appellant chose not to appear in the proceeding suit and not to file either written statement or reply in the suit. Taking the Court to the documents annexed with affidavit, Mr. Gateshaniya submitted that the postal receipt for sending the notice to the appellant, as also the copy of net tracking of the Indian post show that the summons / notice sent through post was delivered at the address of the appellant. Mr. Gateshaniya lastly submitted that instead of filing the application under Order 39, Rule 4 of the Code to vary or discharge or vacate the impugned order, the appellant has taken the chance of filing present Appeal and therefore, the Court may not interfere with the impugned order.
8. The Court having heard learned advocate for both the sides finds that in the impugned order, the Court below has recorded that even after service of the process, the appellant has not turned up for filing of the written statement. However it appears that though learned judge has observed in the Page 4 of 7 HC-NIC Page 4 of 7 Created On Sun Oct 01 20:32:07 IST 2017 C/AO/282/2017 ORDER impugned order that ad-interim injunction is required to be granted, the application Ex-7 was finally disposed of in favour of the respondent. Be that as it may, on the aspect as to whether the appellant was in fact served with the summons/ notice of the suit or the injunction application, it is difficult to make out from the xerox copy of the documents of the postal department placed with the affidavit-in-reply filed by the respondent No.1 that the appellant was served with the summons / notice of the suit or the injunction application. In the cause title of the injunction application, the address given of the appellant is of Sonale, Bhiwandi, District Thane with pincode No. 421302. In the postal receipt for sending the article through post, the full address of the appellant is not mentioned but what is mentioned is only Thane, pincode No. 400302. Obviously the pincode numbers do not match. But even if there is difference in the pincode numbers, the post could be served at the address given. However, in the document at page No.55 stated to be the details of article tracking to confirm the delivery of article at a particular destination, what is mentioned is that the article delivered was at Lonad. Learned advocate Mr. Gateshaniya however submitted that the summons/ notice in fact was duly served to the appellant, otherwise the summons/ notice would have Page 5 of 7 HC-NIC Page 5 of 7 Created On Sun Oct 01 20:32:07 IST 2017 C/AO/282/2017 ORDER been returned unclaimed but it was not returned like that and therefore, the presumption would be that the appellants were duly served with the summons/ notice of the suit and the application. The Court however finds that when there is a serious doubt as to the service of summons/ notice of suit and the application, the party who claims non-service of such summons or notice when seeks opportunity to be heard is to be given the opportunity of hearing to ensure that the proceeding is decided in accordance with law. The Court finds that if such opportunity is given to the appellant by directing the Court below to decide the application at Ex-7 afresh, the respondent will not be put to much prejudice. Mr. Thakor submitted that to better avail of such opportunity, the appellant may be given some time to file written statement and reply to injunction application. In view of the above, the Court finds that the interest of justice will well served if the impugned order is set aside and the matter is remitted to learned Judge to decide the application Ex-7 afresh on its own merits and in accordance with law after giving opportunity of hearing to both the parties. Since the matter is being remitted for deciding the application Ex-7 afresh, the appellant could be permitted to file written statement in the suit and the reply to the application Ex-7.
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9. In view of the above, the appeal stands partly allowed. The impugned order dated 27.03.2017 passed by learned Chamber Judge, City Civil Court No.10 at Ahmedabad below Ex- 6/7 is quashed and set aside. The matter is remitted to learned Judge to decide the application Ex-7 afresh on its own merits and in accordance with law after giving opportunity of hearing to both the parties. The appellant shall file written statement and reply within 10 days from today. Learned Judge shall hear and finally decide the application Ex-7 within a period of two weeks from the date of filing of the reply by the appellant within the above said time period of 10 days.
10. Since Appeal from Order is finally decided, the civil application would not survive and is disposed of accordingly. Direct service is permitted.
(C.L.SONI, J.) MAYA Page 7 of 7 HC-NIC Page 7 of 7 Created On Sun Oct 01 20:32:07 IST 2017