Bombay High Court
Rizwana Abdul Aziz Farooqui And 3 Ors vs Limra Realty And 3 Ors on 3 August, 2021
Author: G.S. Patel
Bench: G.S. Patel
6-IAL-14556-2021 IN SL-14255-2021.DOC
Arun
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
INTERIM APPLICATION (L) NO. 14556 OF 2021
IN
SUIT (L) NO. 14555 OF 2021
Rizwana Abdul Aziz Farooqui & Ors ...Applicants/
Plaintiffs
Versus
Limra Realty & Ors ...Defendants
Mr Dilip Rai, i/b AC Mahimkar, for the Plaintiffs.
Mr Sharan Jagtiani, Senior Advocate, with Aurup Dasgupta,
Apurva Manwani and Sonam Ghiya, i/b Jhangiani Narula &
Associates, for Defendant No.1.
Mr Asif Y Memon, for Defendants Nos. 2 and 3.
CORAM: G.S. PATEL, J
DATED: 3rd August 2021
PC:-
1.I will have to vacate the order of 14th July 2021 and the injunction granted in paragraph 4 in terms of prayer clause (b). The reason is apparent now from the Affidavit in Reply that has been filed.
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2. On 14th July 2021 I was told that that the Defendants were absent though served. I directed that theywere to be served afresh. I noted this in paragraph 3.
3. The actual service was of 6th July 2021. A copy of the service letter is at page 56 of the paper book in the Interim Application. What this says is that the Interim Application would be listed before me on 9th July 2021 "or any date thereafter as per the convenience of the Hon'ble Court".
4. Even in the ordinary course -- that is to say, when the Court is functioning in its normal physical mode rather than online -- this is insufficient. Three things are essential at the threshold to the making any urgent ad-interim application: (i) a service of the papers;
(ii) notice to the opponent of the date when the application will be made and (iii) notice to the opponent of the Court before which that application will be made.
5. The exceptions are only two, as far as I am aware. The first is when the Plaintiff makes out a case for moving without notice, i.e. ex parte. Such an application has essential ingredients. In a recent ex parte order in an intellectual property matter, I culled out some of those principles. I reproduce the relevant paragraphs below:
(a) The general principle is that the Court will hear both sides before rendering a decision. This is the essence of any adversarial justice-delivery process, and based on the fundamental rule of natural justice and fairness, audi alteram partem. An ex parte application, without notice to or Page 2 of 6 3rd August 2021 ::: Uploaded on - 04/08/2021 ::: Downloaded on - 05/08/2021 01:42:15 ::: 6-IAL-14556-2021 IN SL-14255-2021.DOC hearing, the other side is, therefore, the exception, a derogation from this general principle.
(b) It is every advocate's and every court's paramount duty, of the very first importance, to ensure the integrity of the judicial process. When, therefore, a court is asked to depart from the general process and general rule, it must be able to rely on the applicant (who or which is appearing without an opponent on notice) to present its case fairly and evenly. This means that the applicant's case must contain a disclosure or statement of an anticipated defence or arguments likely in opposition. In turn, this means that an applicant seeking an ad-interim relief without notice must make a full and reasonably accurate disclosure of material facts and must invite the court's attention to factual, legal and procedural issues. On the factual issues to be disclosed, the applicant need only disclose as much -- but every bit as much -- as is within his knowledge, or that which, with reasonable efforts, he could discover. Material in the public domain, including in open registries, falls within this class of factual material.
(c) The disclosure and statement in the application or plaint must be neutrally and objectively presented so that the court has confidence in the case brought. Merely annexing a slew of documents does not, of itself, serve this purpose.
(d) Necessarily, this means that the applicant must be shown to have made the necessary and proper enquiries, within the bounds of reason, before making the application.
This material can be in a supporting affidavit, but it must be before the court. Some level of investigation and enquiry must be demonstrated. This duty of disclosure includes matters of which the applicant would have been aware had he made reasonable enquiries. Specific to IPR matters, for instance, is the requirement for a search in the registry as to Page 3 of 6 3rd August 2021 ::: Uploaded on - 04/08/2021 ::: Downloaded on - 05/08/2021 01:42:15 ::: 6-IAL-14556-2021 IN SL-14255-2021.DOC what, if anything, the defendant has done in regard to the competing mark, service, product or thing. For trademarks:
has the defendant sought registration? When and with what effective date? With or without a disclaimer? There must be market information too: how long has the defendant been in the market with the rival product and mark? In what area? In what manner?
6. (e) Ex parte applications are, by definition, moved in urgency. This must be demonstrated too. The compilation of relevant material may be less than optimally organized in view of the urgency, but the urgency does not excuse the need for a sufficient disclosure. The requirement is not of the fullest and most complete disclosure but enough to make the court cognisant of the likely issues and possible defences. A detailed analysis of every single possible point is not required. Undoubtedly, the requirement of disclosure relates to relevant material, and kept within sensible limits. The disclosure must be proportionate, and the task is not the pursuit of perfection (for it will always be argued that the disclosure might have been bettered). The disclosure requirement is, above all, a safeguard to ensure that the court is not misled on a material and relevant aspect. This extract was, of course, in an Intellectual Property matter. But there is no reason the general principle should not apply to all ad-interim ex parte applications. The underlying principle is that in any adversarial system the general rule is that both sides must be heard. An ex parte application is therefore the exception. A Court is sought to be persuaded to pass an order without the other side being heard, i.e. by denying the other side an opportunity of being heard. Obviously, this can be done in only carefully circumscribed circumstances and situations.
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7. The second situation in which a Court can proceed in the absence of the other side or opponent is when the opponent though properly given a notice that satisfies all three conditions fails to appear. or refuses to accept service. If despite having a set of the papers, knowing the date and knowing the Court, the defendant does not appear, then the defendant cannot be heard to complain, nor to say that the plaintiff should repeatedly serve him. Such an order, in the defendant's absence, is not "ex parte". The defendant has chosen to stay away. The order was not made on an application that relief be granted without hearing the defendant -- the true definition of an ex parte order. If the Defendant refuses to accept service sought to be effected validly, then the Defendant is in no better position.
8. But the case before me is one where the Defendant did not know the date of listing at all. The expectation was that the Defendants would monitor my lists from the date of service onwards almost indefinitely. They would never know whether I had granted or not granted leave for a listing. Conceivably, given how long suits are pending in this Court, they may have been required to keep watch for very nearly an eternity. That is entirely unreasonable.
9. It is for this limited reason that I am not continuing the order of 14th July 2021 in terms of prayer clause (b). I will however keep all contentions open. The Plaintiffs seek time to file an Affidavit in Rejoinder. That will be filed and served on or before 17th August 2021.
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10. List the Interim Applications for hearing and final disposal on 25th August 2021.
11. This order will be digitally signed by the Private Secretary of this Court. All concerned will act on production of a digitally signed copy of this order.
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