Karnataka High Court
Vedant Fashions Pvt Ltd vs Smt. Rajul Devi on 11 July, 2014
Author: B.V.Nagarathna
Bench: B.V.Nagarathna
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 11TH DAY OF JULY, 2014
BEFORE
THE HON'BLE MRS.JUSTICE B.V.NAGARATHNA
WRIT PETITION Nos.33158/2014
& 33300/2014 (IPR)
BETWEEN:
VEDANT FASHIONS PVT. LTD.,
A COMPANY INCORPORATED UNDER THE
INDIAN COMPANIES ACT
HAVING ITS REGISTERED OFFICE AT
PARIDHAN GARMENT PARK,
NO.19, CANAL SOUTH ROAD, SDF-1,
4TH FLOOR, A501-A502, KOLKATA 700 015.
REP. BY THEIR AUTHORISED SIGNATORY,
MR.SUSHIL KUMAR AGARWAL. ...PETITIONER
(BY SRI.K.G.RAGHAVAN, SR.ADV., FOR
NIKHIL KRISHNAMURTHY AND SRI.MAHESH, ADV.,)
AND:
SMT.RAJUL DEVI,
AGED ABOUT 52 YEARS,
W/O.SRI.KANTILAL JAIN,
TRADING AS M/S.MANYAVAR,
NO.21/22, SHARMA COMPLEX, 1ST FLOOR,
D.S.LANE, CHICKPET,
BANGALORE - 560 053. ...RESPONDENT
(BY SRI.K.S.DEVARAJ AND SRI.SIVARAMAN, ADVs.,)
THESE W.PS. ARE FILED UNDER ARTICLES 226 AND 227
OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE
ORDER DATED 4.7.2014 PASSED BY THE LEARNED CITY CIVIL
(CCH 10) ON THE APPLICATION UNDER ORDER XXXIX RULES 1
2
& 2 READ WITH SEC.151 CIVIL PROCEDURE CODE AND 2 IN IA
NOS.1 AND 2 IN O.S.NO.4676/2014 VIDE ANN-A.
THESE PETITIONS COMING ON FOR ORDERS THIS DAY,
COURT MADE THE FOLLOWING:-
ORDER
These writ petitions assail the exparte order dated 04/07/2014 passed by the trial court in O.S.No.4676/2014 on I.A.Nos.1 and 2 filed under Order XXXIX Rules 1 & 2 read with Section 151 of Code of Civil Procedure ("CPC").
2. By the said order, an ad interim exparte temporary injunction was passed against the defendants restraining them, their successors, assignees, representatives associates, subsidiaries, sister concerns, holding company investors, dealers, agents and servants or anybody claiming through them from using the trade mark MANYAVAR or any other trade mark which is identical or deceptively similar with plaintiff's trade mark MANYAVAR infringing the plaintiff's trade mark registration No.827364 in Class-24 and No.1765908 in Class-35 and passing plaintiff's trade mark MANYAVAR in relation to readymade garments and services relating to textile piece goods and 3 ready made garments or any other allied or cognate goods/services till next date. The respondent has been directed to comply with the provisions of Order XXXIX Rule 3(A) of CPC. The next date of hearing was fixed on 31/07/2014.
3. The petitioner who is the defendant in the suit has filed these writ petitions and it was categorized as "G.M.CPC". Office raised an objection with regard to the categorization of the case. Nevertheless, on the submission of the petitioner's counsel, the matter was posted before Court Hall No.5 today (11/07/2014). Learned single judge Hon'ble Sri. Bhosale J., has passed the following:
"In view of the objections raised by the office, learned counsel for the petitioner is allowed to move the learned Judge who is dealing with the matter pertaining to IPR.
Office is directed to send the records to the concerned court forthwith.
Learned counsel for the respondent
undertakes to appear before
Smt.B.V.Nagarathna J., who is assigned to hear IPR matter."4
That is how the matter is listed before this court. This court has entertained these petitions having regard to the fact that the office objection was rightly raised and the matter had to be treated as IPR matter and listed before this court.
4. Learned counsel for respondents appeared before his Lordship Hon'ble Sri. Bhosale J., and also before this Court.
5. At the outset, the maintainability of these writ petitions was taken up as a doubt was expressed by the court as to whether an appeal under Order XLIII Rule 1 had to be filed against the impugned order.
6. Learned Senior Counsel appearing for the petitioner, however, drew my attention to Order XXXIX Rule 3 of CPC and also a decision of this court in the case of B.Jayaramaiah V/s. Smt. Gowramma in W.P.No.17573/2013 disposed of on 22/4/2013, in which a writ petition filed against an exparte order of temporary injunction purportedly in violation of the proviso to Order XXXIX Rule 3 was entertained by this Court and also disposed of. In that view of the matter, these writ 5 petitions have been heard and disposed of by this order with the consent of counsel on both sides.
7. Learned Senior Counsel for the petitioner has drawn my attention to the plaint and various documents annexed to these writ petitions and also the impugned order and mainly contended that the impugned order does not satisfy the requirement of Order XXXIX Rule 3 CPC.
8. Per contra, learned counsel for the respondents supported the impugned order and stated that the trial court has referred to certain documents which were the basis for granting ad interim exparte order of injunction against the petitioner herein.
9. I have perused the impugned order which reads as under:
"The plaintiff being proprietrix carrying on business under the name and style M/s. Manyavar No.21/22, Sharma Complex, 1st Floor, DS.Lane, Chickpet, Bangalore, filed this suit for perpetual injunction against the defendant from using and infringing and passing of trade mark 'MANYAVAR' in relation to textile clothing, including textile piece goods, suitings, shirting, tissues, readymade 6 garments or retailing of textile or readymade garments.
The plaintiff filed an application under order 39 rule 1 & 2 prays for an order of exparte ad-interim temporary injunction against the defendant. Plaintiff's GPA holder stated in the affidavit that they have been using the trade mark 'MANYAVAR' since 1991 and prior use, they registered the trade mark under registration No.827364 and 1765908. As per the affidavit sworn to by the GPA Holder, defendant using the trade mark 'MANYAVAR' in doing cloth business which amounts to infringement. Plaintiff has produced the brouchers at page 34 to 43 and copy of purchase receipts, invoices and trade mark certificates and paper cuttings at page No.46 to 206. The paper cuttings of Times of India dated 25/04/2014 shows the advertisement given by the defendant in the trade mark MANYAVAR to the outlets of its business. The documents at page 208 to 231 at this stage disclose that the plaintiff has been using the trade MANYAVAR with registration.
A perusal of aforesaid documents at this stage the plaintiff has made out prima-facie case for grant of ad-interim exparte temporary injunction by dispensing with the notice to the defendant on I.A.1, as the very object of 7 granting injunction would be defeated by delay. Therefore, issue ad-interim exparte temporary injunction against the defendants restraining them, their successors, assignees, representatives associates, subsidiaries, sister concerns, holding company investors, dealers, agents and servants or anybody claiming through them from using the trade mark MANYAVAR or any other trade mark which is identical or deceptively similar with plaintiff's trade mark MANYAVAR infringing the plaintiff's trade mark registration No.827364 in Class-24 and No.1765908 in Class-35 and passing plaintiff's trade mark MANYAVAR in relation to readymade garments and services relating to textile piece goods and ready made garments or any other allied or cognate goods/services till next date.
Plaintiff to comply with the provisions of Order 39 rule 3(A) of CPC. Issue suit summons and notice on I.A.1 and 2 to the defendant returnable by 31.7.2014"
While the application seeking temporary injunction has been filed under Order XXXIX Rules 1 and 2, the grant of an exparte order of temporary injunction dispensing with notice to the defendant is envisaged under Order XXXIX of Rule 3. The said Rule reads as under: 8
"3. Before granting injunction, Court to direct notice to opposite party- The Court shall in all cases, except where it appears that the object of granting the injunction would be defeated by the delay, before granting an injunction, direct notice of the application for the same to be given to the opposite party:
Provided that, where it is proposed to grant an injunction without giving notice of the application to the opposite party, the Court shall record the reasons for its opinion that the object of granting the injunction would be defeated by delay and require the applicant-
(a) to deliver to the opposite party, or to sent to him by registered post, immediately after the order granting the injunction has been made, a copy of the application for injunction together with-
(i) a copy of the affidavit filed in
support of the application;
(ii) a copy of the plaint; and
(iii) copies of documents on which the applicant relies, and
(b) to file, on the day on which such injunction is granted or on the day immediately following that day, an affidavit stating that the copies aforesaid have been so delivered or sent."9
A bare reading of the said rule makes it clear that normally, the court, before granting an injunction, direct notice of the application to be given to the opposite party. The exception is, where it appears that the object of granting injunction would be defeated by delay, in such an event, the proviso which has been inserted with effect from 01/02/1977 comes into operation, where the court is empowered to grant an ad interim injunction dispensing with notice provided reasons are recorded for its opinion to the effect that the object of granting the injunction would be defeated by delay if notice is to be served on the respondent. The impugned order is extracted supra in order to ascertain as to whether the trial court had complied with the requirements of the proviso while dispensing with the notice to the defendant while grant an exparte order of temporary injunction. From a reading of the impugned order, it is clear that, nowhere reasons have been recorded as to why the trial Court was of the opinion that the injunction had to be granted by dispensing notice to the respondents or that non-grant of an injunction would be defeated by delay if notice is to be ordered on respondents. The impugned order is bald, laconic and 10 bereft of any reason. The learned Trial Judge has not even made a brief reference to the facts of the case to arrive at a conclusion that there is a prima facie case for consideration and about balance of convenience being in favour of the plaintiff and whether she would suffer any reparable loss in case of refusal of exparte injunction. Mechanically, the impugned order has been passed. In that view of the matter, the impugned order has to be quashed on the short ground of there being non- compliance of Rule 3 of Order XXXIX of the CPC. It is noted form the impugned order that the next date of hearing is 31.07/2014.
10. Keeping in mind the interest of both parties, who are now represented by their respective counsel, it is necessary that application filed under Order XXXIX Rules 1 & 2 CPC be considered afresh and in accordance with law. Since the defendant in the suit has now filed these writ petitions and is aware of the suit and the impugned order also and keeping in mind the urgency pleaded by the respondent herein, who is the plaintiff in the suit, the parties are directed to appear before the trial court on 11 23/07/2014, so that the application filed under Order XXXIX Rules 1 and 2 would be considered afresh.
11. After the written statement and the objections are filed by the defendant on the said date, the trial court is directed to re-consider the application filed under Order XXXIX Rules 1 and 2 in accordance with law.
12. In the result, the impugned order is quashed. The parties are directed to appear before the trial court without insisting on any separate notice from that Court on 23/07/2014. The petitioner herein who is the defendant in the suit to file the written statement and objections on the said date.
13. The trial court is directed to consider the applications filed under Order XXXIX Rules 1 and 2 CPC in accordance with law. Writ petitions are disposed in the aforesaid terms. Parties to bear their respective costs.
Sd/-
JUDGE S*