Gujarat High Court
Galatea Ltd. Through Authorised ... vs M. Kantilal Exports on 29 April, 2022
Author: B.N. Karia
Bench: B.N. Karia
C/SCA/2588/2020 CAV JUDGMENT DATED: 29/04/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 2588 of 2020
With
R/SPECIAL CIVIL APPLICATION NO. 2592 of 2020
With
R/SPECIAL CIVIL APPLICATION NO. 2593 of 2020
With
R/SPECIAL CIVIL APPLICATION NO. 2595 of 2020
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE B.N. KARIA
==========================================================
1 Whether Reporters of Local Papers may be allowed - YES -
to see the judgment ?
2 To be referred to the Reporter or not ? - YES -
3 Whether their Lordships wish to see the fair copy - NO -
of the judgment ?
4 Whether this case involves a substantial question - NO -
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
SPECIAL CIVIL APPLICATION NO. 2588 of 2020
1. GALATEA LTD. THROUGH AUTHORISED SIGNATORY SAIRA
RANA
2. SARINE TECHNOLOGIES LTD
Versus
1. M. KANTILAL EXPORTS
2. MANJIBHAI PATEL PARTNER OF M KANTILAL EXPORTS
3. PRAVINBHAI KHENI PARTNER M. KANTILAL EXPORTS
4. PIKESHBHAI
5. SUNILBHAI
6. CARBON CREATION EXPORTS PRIVATE LIMITED
SPECIAL CIVIL APPLICATION NO. 2592 of 2020
1. GALATEA LTD. THROUGH AUTHORISED SIGNATORY SAIRA
RANA
2. SARINE TECHNOLOGIES LTD
Page 1 of 50
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C/SCA/2588/2020 CAV JUDGMENT DATED: 29/04/2022
Versus
1. SAHAJANAND TECHNOLOGIES PRIVATE LIMITED
SPECIAL CIVIL APPLICATION NO. 2593 of 2020
1. GALATEA LTD. THROUGH AUTHORISED SIGNATORY SAIRA
RANA
2. SARINE TECHNOLOGIES LTD
Versus
1. SAHAJANAND TECHNOLOGIES PRIVATE LIMITED
SPECIAL CIVIL APPLICATION NO. 2595 of 2020
1. GALATEA LTD. THROUGH AUTHORISED SIGNATORY SAIRA
RANA
2. SARINE TECHNOLOGIES LTD
Versus
1. M. KANTILAL EXPORTS
2. MANJIBHAI PATEL PARTNER OF M KANTILAL EXPORTS
3. PRAVINBHAI KHENI PARTNER M. KANTILAL EXPORTS
4. PIKESHBHAI
5. SUNILBHAI
==========================================================
APPEARANCE
SPECIAL CIVIL APPLICATION NO. 2588 of 2020
MR NEERAJ MALHOTRA, SENIOR ADVOCATE with MR SANDEEP
GROVER, ADVOCATE for MR. ISHWER UPNEJA, ADVOCATE for
MR VARA GAUR, ADVOCATE for MR DILIP B RANA, ADVOCATE
for the Petitioners No. 1,2
MR. MEHUL SHARAD SHAH, ADVOCATE with MR DEV D PATEL,
ADVOCATE for the Respondents No. 4,5
MR PRATIK Y JASANI, ADVOCATE for the Respondents No. 1,6
SPECIAL CIVIL APPLICATION NO. 2592 of 2020 & SPECIAL CIVIL
APPLICATION NO. 2593 of 2020
MR SHALIN MEHTA, SENIOR ADVOCATE with MR SANDEEP
GROVER, ADVOCATE for MR. ISHWER UPNEJA, ADVOCATE for
MR VARA GAUR, ADVOCATE for MR DILIP B RANA, ADVOCATE
Page 2 of 50
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C/SCA/2588/2020 CAV JUDGMENT DATED: 29/04/2022
for the Petitioners No. 1,2
MR SAURABH N SOPARKAR with MR MANAAL J DAVAWALA ,
ADVOCATE for the respondents
SPECIAL CIVIL APPLICATION NO. 2595 of 2020
MR YATIN OZA, ADVOCATE with MR SANDEEP GROVER,
ADVOCATE for MR. ISHWER UPNEJA, ADVOCATE for MR VARA
GAUR, ADVOCATE for MR DILIP B RANA, ADVOCATE for the
Petitioners No. 1,2
MR. MEHUL SHARAD SHAH, ADVOCATE with MR DEV D PATEL,
ADVOCATE for the Respondents No. 4,5
MR PRATIK Y JASANI, ADVOCATE for the Respondents No. 1,6
NOTICE SERVED BY DS(5) for the Respondent(s) No. 2,3
======================================================
CORAM:HONOURABLE MR. JUSTICE B.N. KARIA
Date : 29/04/2022
CAV JUDGMENT
1. All these four petitioners are filed by the respective petitioners of the respective petitions under Article 227 of the Constitution of India for the purpose of appointment of local commissioner and carrying out for common as specified premised belonging to the respondent after learned trial court denied their prayers as sought for in their applications Ex. 6 seeking appointment of local commissioner vide order dated 27.01.2020. Learned Trial Court refused exparte order and issued notice to the respondent herein.
2. As common question is involved in all of these four Page 3 of 50 Downloaded on : Fri May 06 20:05:06 IST 2022 C/SCA/2588/2020 CAV JUDGMENT DATED: 29/04/2022 petitioners, Special Civil Application No. 2592 of 2020 is treated as leading matter and on a request being made by learned advocates for the respective parties, common order is passed in all of these matters.
3. Brief background of the matter can be summarized as under:
3.1 Four different suits were filed by the present petitioners before the trial court ie., (I) Suit for Patent infringement by Galatea Ltd. and Sarine Technologies Ltd.
against Sahajanand Technologies Pvt. Ltd.; (II) Suit for copyright infringement of the softwares of the Plaintiffs, ie, Sarine Technologies Ltd. and Galatea Ltd. against Sahajanand Technologies Pvt. Ltd.; (III) Suit for Patent infringement by Galatea Ltd. and Sarine Technologies Ltd. against M. Kantilal Exports and others.; (IV) Suit for copyright infringement of the softwares of the Plaintiffs, ie., Sarine Technologies Ltd. and Galatea Ltd. against M Kantilal Exports and others. Along with the suits filed by the petitioners, in a capacity of plaintiffs, applications Ex. 5 for interim injunction were filed in all of these suits. Additionally, separate applications were filed for ex parte appointment of court commissioners under Order 26 Rule 9 of the Civil Procedure Code, 1908 (hereinafter referred to as "the Code") being applications filed under Exhibit - 6 in Page 4 of 50 Downloaded on : Fri May 06 20:05:06 IST 2022 C/SCA/2588/2020 CAV JUDGMENT DATED: 29/04/2022 all these suits. The Trial Court, instead of ex-parte order for appointing of court commissioners, proceeded to issue notice to the Respondents in the suit vide order 27.01.2020.
3.2 Aggrieved by the said refusal to ex parte appointment of court commissioners, the Plaintiffs-petitioners approached this Court vide four separate Special Civil Applications in respect of each of the four suits. Vide detailed orders dated 29.01.2020, this Hon'ble Court was pleased to ex parte appoint the court commissioners in all the four matters. In compliance with the orders passed by this Court, the commissions were executed by the court commissioners appointed by this Court on 01.02.2020. The court commissioners were accompanied by the technical experts nominated by the Plaintiffs-petitioners as well as the counsel for the Plaintiffs-petitioners, in terms of express directions issued by this Court vide order dated 29.01.2020. Hence, present petitions.
4. Heard learned advocates for the respective parties.
5. It was submitted by learned advocate for the petitioners that application Ex. 6 of the Trademark Suit No. 6 of 2020 ("Local Commissioner Application") inter alia under Order XXVI Rule 9 and Order XXXIX Rule 7 of the Code seeking appointment of Local Commissioner, at the cost and expenses Page 5 of 50 Downloaded on : Fri May 06 20:05:06 IST 2022 C/SCA/2588/2020 CAV JUDGMENT DATED: 29/04/2022 of the petitioners to visit the premises of the respondents to inter alia inspect the machines, computer systems etc, found at the premises of the respondents to ascertain and prove the infringing activities being carried out by the respondents was wrongly ordered by the court below issuing notice to the respondents. It was further submitted that appointment of court commissioner was sought in order to ascertain and prove that respondents are manufacturing, selling, offering for sale and using machines/devices that infringe patent of the petitioner no.1 as those machines/devices incorporate the patented technology of petitioner no.1 in its patent No. IN271425, so as to result in the infringement of the said patent. It was further submitted that arguments were advanced by learned advocate for the petitioners before the trial court though the impugned order was passed in violation of the settled principle of law as laid down by the Hon'ble Supreme Court of India and various High Courts across the country and principle of natural justice. It was further submitted that the appointment of Court Commissioner in intellectual property rights cases ex parte is desirable to ensure that the surprise element remains intact, in absence whereof the Respondents would easily be in a position to remove the infringing products when the Court Commissioner visits the premises of the respondents. That, the trial court failed to exercise the Page 6 of 50 Downloaded on : Fri May 06 20:05:06 IST 2022 C/SCA/2588/2020 CAV JUDGMENT DATED: 29/04/2022 jurisdiction vested upon him in accordance with law especially in failing to pass orders which would preserve and protect, the incriminating evidence. It was further submitted that trial court failed to consider that the service of impugned order or notice in the applications on the Civil Applications on the respondents could result in either the movement of the infringing machines or software to unknown destination leaving no surviving evidence thereby causing grave prejudice to the petitioners, and therefore, impugned order is liable to be quashed. It was further submitted that the trial court did not appreciated the guidelines laid down by the learned Division Bench of Delhi High Court in Case of "Autodesk Inc & Anr. v. A.V.T. Shankardass & Anrs, reported in AIR 2008 Delhi 167, wherein it is held that on the question of appointment of a Local Commissioner in software infringement and piracy matters is not as much to collect evidence but to preserve and protect the infringing evidence. The pirated software or incriminating evidence can only be obtained from the premises of the opposite party alone and in the absence of an ex-parte appointment of a Local Commissioner there is likelihood that such evidence would be lost, removed or destroyed. That, trial court did not consider the same while passing the impugned order, and therefore, also impugned order is unsustainable in law. It was further submitted that during the hearing of Page 7 of 50 Downloaded on : Fri May 06 20:05:06 IST 2022 C/SCA/2588/2020 CAV JUDGMENT DATED: 29/04/2022 application Ex. 6 before the trial court, learned counsel appearing for the plaintiffs-petitioners had relied upon various orders passed by the Hon'ble Delhi High Court in suits wherein infringement of patent is an issue. That, the trial court ought to have taken the same view unless the said orders were not applicable to the facts of the case on hand, for which, trial court ought to have provided reasons for its disagreement to follow the said view. It was further submitted that no reasons were recorded to justify its decision not to exercise its powers under Order XXVI Rule 9 of the Code, despite the petitioners having made out a very good prima facie case in view of the documents produced before the learned trial court. It is further submitted that in cases involving patent and/or copyright infringement, an element of surprise is of critical importance, and in fact necessary to subserve the ends of justice. However, trial court has grossly and manifestly erred in not appreciating that issuance of notice without granting ex-parte ad interim orders, would result in effacement of entire incriminating evidence. Referring the case of "Laxmikant V. Patel v. Chetanbhat Shah & Anr, reported in (2002) 3 SCC 65. it is submitted that in cases where the discretion exercised by the trial court or High Court against the plaintiff is neither reasonable nor judicious, it becomes obligatory on the Appellate court to interfere and grant interlocutory injunction.
Page 8 of 50 Downloaded on : Fri May 06 20:05:06 IST 2022C/SCA/2588/2020 CAV JUDGMENT DATED: 29/04/2022 Hence, it was requested by learned advocate for the petitioners to quash and set aside the judgment and order dated 27.01.2020 passed by the learned Additional District Judge, Surat below Exhibit 6 in Trademark Suit No. 6 of 2020 and allied matters.
6. From the other side, learned advocate for the respondents herein of all these petitions have opposed the submissions made by learned advocate for the petitioners and submitted that the respondent ("STPL") is a company incorporated under the Companies Act having its registered office at A1, Sahajanand Estate, Wakharia Wadi, Near Dabholi Char Rasta, Vad Road, Surat. It was incorporated in 1993 and is engaged in developing cutting edge technological solutions for the diamond industry. It was further submitted that respondent is one of the very global companies that offer total technology solutions for diamond manufacturing, including diamond analysis and planning, processing, cutting, blocking and polishing as well as safe diamond trading. That, the respondent has average manpower strength of around 550 and in financial year 2019-20, its annual R&D budget was over Rs. 3 crores. The respondent has been honoured by many national and international bodies such as Good Design Award-Japan, Vision System Design Innovators Award - USA, JNA Awards - Hong Kong-China and many more. On the national front, the Page 9 of 50 Downloaded on : Fri May 06 20:05:06 IST 2022 C/SCA/2588/2020 CAV JUDGMENT DATED: 29/04/2022 Respondent is a recipient of India Design Mark Award twice, has won Platinum Level Quality Excellence Award by the Federation of Indian Chambers of Commerce and Industry, for machine and production quality. The respondent is broadly in business of two product categories, namely (I) Gemstone Planner and (ii) Laser Diamond cutting machines. It was further submitted that the present petition is nothing but an abuse of the process of law and devoid of any merit and does not disclose any cause of action, therefore, present petitions are liable to be dismissed with exemplary costs. It was further submitted that these proceedings have been initiated by the petitioners with the sole and ulterior motive of harassing the respondent and to stifle healthy competition in the market, for causing wrongful loss to respondent and thereby earning wrongful gain. That, in the industry, the petitioners and the respondent are business rivals.
7. The petitioners have sought to invoke the extraordinary powers of this Court under Article 227 of the Constitution of India, however, the petitioners have failed to make out any case for availing and invoking the discretionary jurisdiction of this Court. That, trial court has passed the impugned order after considering the facts and circumstances as put forth by the petitioners and considering the law on the subject. The judgments as cited by the petitioners herein also put forth Page 10 of 50 Downloaded on : Fri May 06 20:05:06 IST 2022 C/SCA/2588/2020 CAV JUDGMENT DATED: 29/04/2022 before the Ld. Trial Court which are duly considered and thereafter, passed the impugned order. It was further submitted that no case was made out by the petitioners for grant of any relief, much less any relief under Order 26 Rule 9 of the Code, and therefore, the same cannot be termed as illegal, erroneous or otherwise merely because it did not grant what the petitioners were sought for before the Trial Court. That, the second address mentioned in cause title of application Exhibit - 6 and third address in the present petition is Avadh 2, Swami Paramanand Marg, Opp. Comet Motors, Katargam, Surat- 395004 which does not belong to the Respondent. It is submitted that the petitioners have admitted on oath that the premises located at the given address does not belong to the Respondent and they knew very well for over several months that the premises belong to a third party namely STC Machines LLP and does not belong to the Respondent. That, the petitioners immediately filed application dated 28.2.2020 under Order 1 Rule 10 of the Code for joining STC Machines LLP as proposed defendant in the suit before the Trial Court. However, petitioners have till date neither sought modification of cause title of present petition nor brought on record of the present petition the said fact of application for adding proposed defendant in the suit. It was further submitted that the petitioners have admitted on oath that the address is Page 11 of 50 Downloaded on : Fri May 06 20:05:06 IST 2022 C/SCA/2588/2020 CAV JUDGMENT DATED: 29/04/2022 deliberately and falsely reported as belonging to the Respondent and has abused the process of law before this Court. That, petitioners have no cause of action against the Respondent and therefore false statement of address was made in cause title, chose not to make STC Machines LLP as defendant in the suit below, created confusion of identity by misrepresentation of addresses belonging to the Respondent and under the entire facade obtained ex parte orders illegally for discovering the trade secrets of the Respondent. That, the petitioners made up stories for conducting roving and fishing inquiries with the ulterior motive of accessing the Respondent's confidential and proprietary information and also with view to initiate vexatious and frivolous proceedings against the Respondent so that rather than focusing on its day-to-day business, Respondent starts to devote its time on such proceedings which in turn would ensure that there is no competition in the market. That, the petitioners are intentionally making wrong and malicious statements in such articles which feature in prominent trade magazines stating that the Respondent is carrying out infringing activities. That, the ulterior motive of the petitioners through the present petition is only to access the Respondent's confidential and proprietary data and information which can then be used to the detriment and disadvantage of the Respondent with the Page 12 of 50 Downloaded on : Fri May 06 20:05:06 IST 2022 C/SCA/2588/2020 CAV JUDGMENT DATED: 29/04/2022 view to monopolize the market and throttle and stifle any healthy competition. That, the petitioners had expressed their wish to partner with the Respondent by using the Respondents' robot and combine it with its own technology. In this regard, an email dated 27.7.2018 was addressed by Mr. Gilad Shaham, Product Manager, Diamond Manufacturing Activities Sanne Technologies Pvt. Ltd. to the Respondent. It is further submitted that however due to certain reasons, partnership did not fructify. It is further submitted that the CEO of the petitioners had also visited the office of the respondent to have a personal meeting with a view to settle all pending litigation and disputes and to start a new business partnership, which was also not successful.
8. It was further submitted that despite best efforts of the petitioner, they could not gain access to the Respondents' said confidential and proprietary information and technology. The petitioner then came up with the novel idea of abusing the law by filing the suit before the Trial Court and then before this Court by suppressing material facts and obtaining orders appointing local commissioners, which under normal circumstances, they could not succeed despite various attempts. It was further submitted that Mr. Gilad Shaham accompanied the Court Commissioners and entered the Respondent's premises and accessed and shared the Page 13 of 50 Downloaded on : Fri May 06 20:05:06 IST 2022 C/SCA/2588/2020 CAV JUDGMENT DATED: 29/04/2022 Respondent's confidential and proprietary information and technology by passing himself off as the petitioner's counsel, in total contravention of the order dated 29.1.2020 passed by this Court. That, the petitioners have successful in their malafide motives by using and abusing the process of law and using the orders of the Court as a tactical weapon to procure trade secrets through illegal means. It was further submitted that petitioners have willfully violated the order passed by this Court on 29.01.2020 by taking unauthorized actions and by ignoring what was exactly ordered in black and white by this Court. It was further submitted that this Court has clearly specified the locations/addresses where the Local Commissioners could visti and inspect. However, at the time of conducting local commission, petitioners and their senior officials barged into other premises of the respondent without any authority. It was further submitted that the court commissioners appointed by this court were given authorization to visit premises located at Plot No. 33, 34, 35, 52, 53 and 54, Surat Special Zone, Sachine, Surat, Gujarat vide order dated 29.01.2020. It was further submitted that reasons known to the respondent, no court commission was carried out at the said locations, which shows that petitioners were only interested in visiting the location of the respondent whereby direct access to its confidential and proprietary data would be Page 14 of 50 Downloaded on : Fri May 06 20:05:06 IST 2022 C/SCA/2588/2020 CAV JUDGMENT DATED: 29/04/2022 available and can be collected easily under the tarb of conducting court commissioner.
9. It was further submitted that in the order passed by this court it is nowhere stated that the petitioners and their representatives including their senior officials could visit the premises of the Respondent. Despite the same, the senior officials of the petitioners, namely, Ran Ziskind (CEO, Galatea Le Ltd.), Gilad Shaham (Director, Product Management, Sarine Technologies Ltd.), and Gilad Hassid (Vice President, Operations, Sarine Technologies Ltd.) illegally entered the premises of the Respondent. It was further submitted that they even entered the R&D facility of the Respondent, accessed the systems, databases, confidential proprietary data and information and took copies of the same. It was further submitted that the petitioners shared the said confidential and sensitive data with their counterparts located overseas, in real time, via a video call, while the Court Commission proceedings were ongoing.
10. It was further submitted that the Court Commissioner appointed by this Court took a back seat and these officials were carrying out the entire "Court Commission" to gain access to the trade secrets of the Respondent. That, this Court vide order dated 04.03.2020 Page 15 of 50 Downloaded on : Fri May 06 20:05:06 IST 2022 C/SCA/2588/2020 CAV JUDGMENT DATED: 29/04/2022 specifically directed that the Court Commissioner's Report be kept in the custody of Nazir and same was required by the trial court then petitioners may approach the trial court, which would then decide the application in accordance with law. It was further submitted that the Court Commissioners have duly submitted the report on 21.9.2020 in sealed covers to be kept in the custody of Nazir. That, in Commercial Trademark Civil Suit No. 12 of 2020 before the Trial Court , petitioners have submitted a true copy of the Court Commissioner's Report at Annexure A-2 of the rejoinder affidavit. That, petitioners are already in possession of the Court Commissioner's Report which is against the express directions and intentions of this Court. It was further submitted that report of the court commissioner which was submitted in a sealed cover before this Court has found its way into the petitioners' hand. That, the actions of the petitioners raise a serious doubt in the integrity and the admissibility of the court. Commissioner's report and and also of the fact as to whether the inspection carried out was independent of the influence of the petitioners. It was further submitted that confidential and proprietary data and information of the respondents have been illegally stolen under the guise of "Court Commission" and would be misused to its disadvantage by the petitioners with a view to monopolize the market and throttle and stifle healthy Page 16 of 50 Downloaded on : Fri May 06 20:05:06 IST 2022 C/SCA/2588/2020 CAV JUDGMENT DATED: 29/04/2022 competition. That, the Respondent has already filed separate contempt petitions for the said acts of the petitioners and are still pending before this Court for adjudication. It was further submitted that allegations made by the petitioners in the plaint are that the respondents have infringed its patent without giving any evidence or semblance of proof in support thereof. The petitioners have failed to show that respondents are in any way liable for any patent violations. It was further submitted that petitioners have failed to demonstrate any special or deserving circumstances, which warrant ex-parte orders of appointment of court commissioner.
11. Learned advocate for the respondents has denied that the respondents have infringed the patent of the petitioners as there is no specific averments made by the petitioners as to any particular product or model of the respondent which allegedly infringes its rights under the Patent Act. It was further submitted that the petitioners have willfully suppressed and concealed the material facts that Patent Application No. 876/CHENP/2008 dated 21.2.2008 was rejected by order dated 13.10.2020 and Appeal is pending before the Intellectual Property Appellate Board (IPAB). It was further submitted that the petitioners' Israel Patent Application No. 181484 was abandoned way back on 28.10 2010, and therefore, patent itself was obtained by unfair and illegal Page 17 of 50 Downloaded on : Fri May 06 20:05:06 IST 2022 C/SCA/2588/2020 CAV JUDGMENT DATED: 29/04/2022 means. It was further submitted that the trial court has applied its mind, thereafter, denied the prayer as sought for in the application Ex. 6. It was submitted that the petitioners have consciously violated the order dated 29.01.2020 by entering other locations belonging to the respondents which were not mentioned in the said order. That, officials of the petitioners whose names were not mentioned in the said order entered the R&D facility of the respondent and copied and shared the confidential and sensitive data of the respondents with their counterparts located overseas, in real time, vide a video call, and that too while the local commission proceedings were ongoing. That, the petitioners have only made bold and vague allegations of alleged infringement of the patent by the respondents and has not even identified or provided the details of any single product or machine of the respondent which infringes its alleged patent of the petitioners. It was further submitted that the petitioners have admitted that they do not have the evidence pertaining to the infringement and same shall be provided at the later stage/post the completion of the Local Commission. It was further submitted that no local commission can be ordered to gather evidence for the benefit of the plaintiffs-petitioners. It was further submitted that the commission cannot be executed unless notice is given to the concerned parties under Order 26 Rule 18 of the Code which Page 18 of 50 Downloaded on : Fri May 06 20:05:06 IST 2022 C/SCA/2588/2020 CAV JUDGMENT DATED: 29/04/2022 is mandatory. It was further submitted that no notice of commission has been issued to the respondents in the present case and the petitioners' along with its senior officials have illegally entered the premises of the respondents and accessed the systems, databases, confidential proprietary data and information and taken copies of the same. That, the petitioners are already in possession of the report of the court commissioner, which is against the express directions and intentions of this Court, which was not disclosed by the petitioners before this court and misguided it to pass an order dated 03.03.2020/04.03.2020. That, Court commissioners' report shall be kept in the custody of the Nazir and if, the same was required by learned trial court then the petitioner may approach the trial court which would then decide the application in accordance with law. It was further submitted that petitioners claimed and produced loose papers during the course of hearing purporting to be of an application supposedly made on 05.03.2020 for calling of the court commissioner's report submitted to this Court. However, said application is not even provided to the respondent below nor it is accepted and still it is pending without hearing. It was further submitted that the intention of this court to ensure that after carrying out the court commission, the court commissioners were to submit the report in sealed cover and Page 19 of 50 Downloaded on : Fri May 06 20:05:06 IST 2022 C/SCA/2588/2020 CAV JUDGMENT DATED: 29/04/2022 this court, which was to be kept into the custody of Nazir till further orders. It is further submitted that there is no provision of law under Order 26 Rule 10 of the Code that copy of the commissioner's report be given to the parties against the express directions of the court. It was further submitted that court commissioner's report which has been submitted in the sealed cover before this Court has found its way into the petitioners' hands. It was further submitted that after carrying out the court commission, immediately, the petitioners purposely circulated disparaging/defaming articles regarding the respondent which featured in prominent trade magazines stating that the respondent is carrying out infringing activities. It was further submitted that petitioners are desperate and are trying their level best to damage the hard earned goodwill of the respondent and cause injury to their business activities and are also trying to malign the impeccable reputation of the respondent. It was further submitted that entire exercise, right from the order dated 27.01.2020 passed by the trial court to the ex-parte court commission carried out on 01.02.2020 was completed within short period without any notice to the respondents. It was further submitted that since the commissioner has already been carried out, the respondent has no recourse but to accept the illegal and invalid court commission and raise objections only before this Court. It was Page 20 of 50 Downloaded on : Fri May 06 20:05:06 IST 2022 C/SCA/2588/2020 CAV JUDGMENT DATED: 29/04/2022 further submitted that court commissioner was ordered by this court and respondent cannot raise objections against the order of this Court before the trial court. That, the legality and validity of the order passed by this Court has to be decided by this court only. Ultimately, it was requested by learned advocate for the respondents to dismiss all these four petitions with exemplary costs for abuse of process of law and report of the Court Commissioner needs to be recalled/set aside by this Court. In support of his arguments, learned advocate for the respondents has produced following judgments:
1. AIR 1934 Mad 548
2. ILR 1977 K. Series 855
3. Order passed by this Court in SCA No. 8976 of 2007
4. 2019 (5) SCC (AIG) 194
5. Order passed by this court in SCA No.10186 of 2010
6. Order passed by this Court in SCA No. 11890 of 2010
12. Learned advocate for the petitioners in reply has submitted that the present petitions were for appointment of court commissioner was ex-parte granted on 29.01.2020 and therefore, nothing further survives in the present petitions and all the four petitions are liable to be disposed of with a direction that reports lying with this court be sent to the Page 21 of 50 Downloaded on : Fri May 06 20:05:06 IST 2022 C/SCA/2588/2020 CAV JUDGMENT DATED: 29/04/2022 learned trial court and such reports be considered by the trial court in accordance with law and subject to objections, if any, raised by the respondents upon receipt of the court commissioners report. It was further submitted that weightage to be given to the court commissioners' report, which may be determined by the trial court in accordance with law. It was further submitted that any irregularities as alleged by the respondent in respect of the court commissioner's report or any manner, in which, the commissions were executed by the court commissioners is a matter which ought to be relegated to the trial court which can decide the same. It was further submitted that the report clearly shows that the respondents are infringing the patent and the copyright of the petitioners, which is demonstrated by the pictures and videos taken by the court commissioner at the premised of the respondents and not merely as statements of the commissioners. It was further submitted that the evidence collected by the commissioners is in material form demonstrating the infringement and is not subject to any deliberations whatsoever, nor is capable of being disputed by either of the respondents. That respondents are also attempting to mischievously, misdirect the attention of this court. The latter contention of the respondent cannot be considered by this court in absence of a challenge to the ex- parte order passed by this court.
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13. It was further submitted that there was no direction to the commissioner that the report should not be supplied to the parties. Referring the order dated 03.03.2020, it was submitted that the allied applications are pending before the trial court. That petitioners have made request to the trial court that the reports are required for the purpose of deciding certain applications filed by the petitioners in the suit ie., impleadment applications and Exh.5 applications. If that was not the case, there was no occasion for this court to use the expression allied applications in the said order and the court would have instead used Exhibit 5 applications or the interim injunction applications. In support of his arguments, learned advocate for the petitioners has relied upon the following judgments;
1. (1988) 2 SCC 196
2. (2020) 11 SCC 590
3. Suomotu v. State of Guajrat and others (22.05.2020- GUJHC)
4. Judgment of the Hon'ble Supreme Court in the case of Bhavnagar University v. Palitana Sugar Mill Prvt. Ltd., and others
5. Judgment of the Hon'ble Delhi High Court in the case of Autodesk Inc & Anr v. AVT shankardass & Anrs,
6. Judgment OF High Court of Madras in case of P. Page 23 of 50 Downloaded on : Fri May 06 20:05:06 IST 2022 C/SCA/2588/2020 CAV JUDGMENT DATED: 29/04/2022 Moosa Kutty
14. Having heard learned advocates for the respective parties and perusing the material supplied on record by the respective parties, it appears that in all petitions, petitioners are the original plaintiffs and have preferred four suits before the trial court ie., (I) Suit for Patent infringement by Galatea Ltd. and Sarine Technologies Ltd. against Sahajanand Technologies Pvt. Ltd.; (II) Suit for copyright infringement of the softwares of the Plaintiffs, ie, Sarine Technologies Ltd. and Galatea Ltd. against Sahajanand Technologies Pvt. Ltd.; (III) Suit for Patent infringement by Galatea Ltd. and Sarine Technologies Ltd. against M. Kantilal Exports and others.; (IV) Suit for copyright infringement of the softwares of the Plaintiffs, ie., Sarine Technologies Ltd. and Galatea Ltd. against M Kantilal Exports and others.
15. Along with the suits, Ex. 5 applications for interim injunctions were filed and additionally, separate applications were filed for ex parte appointment of court commissioners under Order 26 Rule 9 of the code being applications filed under Exhibit - 6 in all these suits. Prayer was made in the application Ex. 6 to visit the premises of the respondents to interalia inspecting the machines, computer systems etc found at the premises of the respondents to ascertain and prove the infringing activities being carried out by the respondents. Suits Page 24 of 50 Downloaded on : Fri May 06 20:05:06 IST 2022 C/SCA/2588/2020 CAV JUDGMENT DATED: 29/04/2022 along with the applicants for appointment of court commissioner were listed before the trial court for hearing. Arguments were also advanced by the petitioners before the trial court and the trial court, instead of exparte order for appointment of court commissioner proceedings issued notice to the respondents in the suit vide order dated 27.01.2020.
16. Aggrieved by the said refusal to ex-parte appointment of court commissioners, petitioners - plaintiffs have approached this court and on 29.01.2020, this court was pleased to pass following order.
1. Heard learned senior advocate Shri Neeraj Malhotra appearing with learned advocate Mr. Dilip B. Rana, for the petitioners. 2. The learned senior advocate Mr. Malhotra for the petitioners pointed out that in the case of infringement of patent, usually the trial court used to grant appointment of commissioner for bringing on record the alleged infringement by way of making local inspection as well as inventory thereto and that fact is not looked into. Even this court as well as in this sort of matter dealt with by the Delhi High Court, the Division Bench has also laid down certain guidelines. Though the petitioners submitted all these details to the learned trial court, more particularly, holding that the issue of patent is involved but the learned trial court was pleased to issue notice instead of appointing the court commissioner for carrying out local inspection as well as inventory as prayed for. The learned senior advocate placed reliance upon the decision laid down in the case of Autodesk Inc and Anr. vs. A.V.T. Shankardas and Anr., reported in 2008 (105) DRJ 188(DB), and more particularly, places reliance upon paragraph 14, which reads thus :
"Coming now to the question of guidelines to be set, we Page 25 of 50 Downloaded on : Fri May 06 20:05:06 IST 2022 C/SCA/2588/2020 CAV JUDGMENT DATED: 29/04/2022 have heard both the counsel for the parties. We are conscious of the fact that it is neither feasible nor practical to lay down guidelines, which would cater to numerous and all the situations that may arise. However, some of the following relevant factors and guidelines are being enumerated which the Court may take into consideration on the question of appointment of a Local Commissioner in software infringement and piracy matters:- (i) The object of appointment of a Local Commissioner in software piracy matters is not, as much to collect evidence but to preserve and protect the infringing evidence. The pirated software or incriminating evidence can only be obtained from the premises of the opposite party alone and in the absence of an ex parte appointment of a Local Commissioner there is likelihood that such evidence may be lost, removed or destroyed; (ii) Request for ex parte appointment of a Local Commissioner in such matters is usual and in fact is intended to sub serve the ends of justice as it is imperative to have an element of surprise so that the actual position is not altered; (iii) The test of reasonable and credible information regarding the existence of pirated software or incriminating evidence should not be subjected to strict proof or the requirement to demonstrate or produce part of the pirated software/incriminating evidence at the initial stage itself. It has to be tested on the touchstone of pragmatism and the natural and normal course of conduct and practice in trade. (iv) It may not always be possible for a plaintiff to obtain any admission by employing decoy customers and gaining access to the defendants premises. Any such attempt also inheres in it the possibility of disappearance of the pirated software/incriminating evidence in case the decoy customers is exposed. Accordingly, visit by decoy customer or investigator is not to be insisted upon as pre condition. A report of private Investigator need not be dis-regarded or rejected simply because of his engagement by the plaintiff. The information Page 26 of 50 Downloaded on : Fri May 06 20:05:06 IST 2022 C/SCA/2588/2020 CAV JUDGMENT DATED: 29/04/2022 provided by the private Investigator should receive objective evaluation. (v) In cases where certain and definite information with regard to the existence of pirated software or incriminating evidence is not available or where the Court may nurture some element of doubt, it may consider asking the plaintiff to deposit cost in Court so that in case pirated software or incriminating evidence is not found then the defendant can be suitably compensated for the obtrusion in his work or privacy."
3. This Court is taken through the recitals and allegations levelled in the application as well as in the petition and the present petitioners - plaintiffs apprehended that if notice be issued to the respondents, there appears likelihood of removal of evidence of infringement of patent, and in that view of the matter, the learned trial court could have issued ex-parte appointment of commissioner. Even otherwise, he has submitted that this is to be done at the cost of the plaintiffs and it would not be in any manner harmful to the respondents - defendants.
4. This Court has gone through the records and proceedings as well as allegations made therein. Since inspection of only one premises as indicated in the application before the learned trial court in prayer (B), is required to be undertaken by way of appointing local commissioner, consequently, therefore, this Court is of the considered opinion to grant the application as prayed for, for appointment of commissioner for local inspection as well as for carrying out inventory as prayed for, in the above premises.
5. Mr. Fouzan Soniwala, advocate (mobile no. 91+9998441924) is appointed as the local commissioner for carrying out the Page 27 of 50 Downloaded on : Fri May 06 20:05:06 IST 2022 C/SCA/2588/2020 CAV JUDGMENT DATED: 29/04/2022 inspection. The petitioners-plaintiffs shall deposit Rs.1 Lac for remuneration payable to the commissioner at the first instance before this Court and the commissioner shall carry out the local inspection as well as inventory as prayed for within three days and shall make report within a period of 15 days, from the date of issuance of the commission to him and seek police assistance if required. The learned trial court shall act and facilitate in carrying out the purpose of Exh.-6. The local commissioner shall prepare an on the spot proceedings and record the names of all the parties presence. The respondents Nos.1 to 6 shall cooperate with the Commissioners in carrying out the inspection as per this order.
6. It will be open for the petitioners-plaintiffs to send its counsel and experts with the commissioner.
7. Issue Notice for final disposal making it returnable on 3 rd March, 2020.
Direct service today is permitted."
17. It appears from the record that in compliance with the order passed by this Court, the commissions were executed by the court commissioners appointed by this court on 10 th February 2020.
18. It further appears that in Special Civil Application No. 2588 of 2020 arising out of the patent infringement against M. Kantilal Exports and Others and report of the court commissioner was submitted and in the said proceedings, Page 28 of 50 Downloaded on : Fri May 06 20:05:06 IST 2022 C/SCA/2588/2020 CAV JUDGMENT DATED: 29/04/2022 proceedings were duly signed by the representatives of the respondents wherein certain handwritten objections were submitted by the representatives of the respondents to the court commissioner which was form part of the court commissioner's report. Further, the court commissioner provided a copy of 'on the spot' report to the representatives of both the parties.
19. It appears that in Special Civil Application No. 2592 of 2020 and Special Civil Application No. 2593 of 2020 arising out of the patent infringement and copy right infringement suits against Sahajanand Technologies Private Limited and report of the court commissioner was submitted on the spot proceedings duly signed by the representatives of the respondents. Further it appears that respondent has filed contempt petition being Misc Civil Application No. 764 of 2020 and 765 of 2020 which would be dealt with separately by the court.
20. It appears that in Special Civil Application No. 2595 of 2020 arising out of the copy right infringement suit filed against M. Kantilal Exports Pvt. Ltd., wherein report of the court commissioner was submitted and reply was filed by the respondents no.4 and 5 on behalf of the respondent no.1. Rejoinder was also filed by the petitioners to the reply of the Page 29 of 50 Downloaded on : Fri May 06 20:05:06 IST 2022 C/SCA/2588/2020 CAV JUDGMENT DATED: 29/04/2022 respondent. On the spot proceedings have been duly signed by the representatives of the respondents and certain handwritten objections were submitted by the said representatives of the respondent to the court commissioner which would form a part of the court commissioner's report. Court commissioner provided a copy of on the spot report to the petitioners.
21. As per submissions of learned advocate for the petitioners, since the limited relief was sought for in the present petitions for appointment of court commissioner which was ex-parte granted on 29.01.2020 and therefore, nothing further survives in the present petitions and all the four petitions are liable to be disposed of with a direction that reports lying with this court be sent to the learned trial court and such reports be considered by the trial court in accordance with law and subject to objections, if any, raised by the respondents upon receipt of the court commissioners report cannot be accepted as court commissioner was ordered by this court, therefore, trial court would not be in a position to decide the legality and validity of all the objections raised by the respondent before this court and therefore legality and validity of the order passed by this court has to be decided by this court only.
22. It appears that while passing an order dated Page 30 of 50 Downloaded on : Fri May 06 20:05:06 IST 2022 C/SCA/2588/2020 CAV JUDGMENT DATED: 29/04/2022 29.01.2020 by this Court, the judgment of the Hon'ble High Court of Delhi reported in 2008(105) DRJ 188(DB) in case of "Autodesk Inc & Anr. v. A.V.T. Shankardas & Anrs," was considered by this Court. In this judgment, certain guideline were issued by Hon'ble High Court of Delhi in a matter of software infringement and piracy and appointment of local commissioner observing that it would not be a matter to collect evidence but to preserver and protect the infringing evidence. It was further observed while issuing the guidelines that the pirated software or incriminating evidence can only be obtained from the premises of the opposite party alone and in the absence of an ex-parte appointment of a Local Commissioner there is likelihood that such evidence would be lost, removed or destroyed. In the instance case, it is the case of the petitioners before the trial court that patent report is infringed by the respondents herein. If we consider the guidelines issued by Hon'ble Delhi High Court and the facts of the present case, patent would not be physically installed machines/product, which could easily be removed or hidden as is sought to be portrayed by the petitioners. Further, it appears from the judgment replied upon by the petitioners that specific guidelines and manner in which, the court commission was to be carried out so that it would result in undue loss of proprietary material and trade secrets of the Page 31 of 50 Downloaded on : Fri May 06 20:05:06 IST 2022 C/SCA/2588/2020 CAV JUDGMENT DATED: 29/04/2022 defendants. There cannot be a straitjacket formula where same guidelines are to be followed in case of patent infringement or software piracy as the criteria would be substantially different.
23. If we consider the application Ex. 6 preferred by the present petitioners for appointment of local commissioner under Order 26 Rule 9 of the Code, it is nowhere alleged with respect to infringing activities supposedly being carried out by the respondent herein. The petitioners have averred that they did not have evidence pertaining to the infringement. For the sake of convenience, submissions made by the petitioners in para 8 of the suit can be summarized as under:
"8. It is most respectfully submitted that it is clear that a prima facie case exists in favour of the plaintiffs. Further, since the activities are being carried out by the defendants covertly and surreptitiously, the plaintiffs do not have all the evidence pertaining to the infringement of the patent held by the plaintiffs, and crave leave of this Hon'ble Court to place on record further document/evidence in this regard, at a later stage. Further, the plaintiffs most humbly request the assistance of this Hon'ble Court to ensure justice is meted out to the plaintiffs herein and the defendants and/or their affiliates, subsidiaries, representatives, agents, assigns, etc, be restrained from indlging in such unlawful activities."
24. Further, it appears from the copy of the plaint in the suit produced before the trial court, three addresses were Page 32 of 50 Downloaded on : Fri May 06 20:05:06 IST 2022 C/SCA/2588/2020 CAV JUDGMENT DATED: 29/04/2022 provided by the petitioners and out of them, only one was belonging to the respondent. Further it appears that another 4 addresses were similarly added by way of annexure in the present petition and none of them were belonging to the respondent. Total 7 addresses were provided by the petitioners. From these 7 addresses, 3 addresses were provided before the trial court and 4 addresses were provided before this Court. Out of them, only one address ie., A-1, Sahajanand Estate, Wakhariya Wadi, Near Dabholi Char Rasta, Ved Road, Surat- 395004, was belonged to the respondent. It further appears from the record that local commissioner was carried out at one address ie., Avadh 2, Swami Parmanang Marg, Opp. Comet Motors, Katargam, Surat 395004, which was not belonged to the respondent. The petitioners, in their rejoinder before the trial court and before this court, attempted to portray the respondent as some infringer. Since the application dated 28.02.2020 was filed by the petitioners under Order 1 Rule 10 of the Code for joining the correct party to whom the premises belonged ie., STC Machines LLP was proposed defendant in the suit before the trial court, the petitioners were aware about the address ie., Avadh 2, Swami Parmanang Marg, Opp. Comet Motors, Katargam, Surat 395004 is not belonging to the respondent. Further it appears from the record that petitioners have till date, not sought any modification of cause title of the Page 33 of 50 Downloaded on : Fri May 06 20:05:06 IST 2022 C/SCA/2588/2020 CAV JUDGMENT DATED: 29/04/2022 petition nor brought on record before this Court in the present petitions the said fact of application for adding proposed defendant in the suit under Order 1 Rule 10 of the Code . The petitioners have admitted on oath that said address was deliberately reported as belonging to the respondent herein. Order passed by this Court on 29.01.2020 has never permitted any Senior officials from the petitioners entered into other premises of the respondent, however, without authority, granted by this Court. In the order dated 29.01.2020, it appears that petitioners and other senior officials from the petitioners entered into other premises of the respondent. The said premises are Plot No. 66, Surat Special Zone, Sachin, Surat 394230 and Plot No. 5526, GIDC, Sachin Surat 394230. Further it appears that there is clear breach of Order 26 Rule 18 of the Code. Under Oder 26 Rule 9 of the Code, this Court has discretion to issue commission ex-parte however the said commission cannot be executed unless notice is given to the concerned parties under Order 26 Rule 18 of the CPC which is mandatory. In the present case, no notice of commission was issued, respondent herein and petitioners alongwith its senior officials have entered into the premises of the respondent and accessed the systems, databases, confidential proprietary data and information and taken copies of the same. Further it appears from the record that petitioners have also shared the Page 34 of 50 Downloaded on : Fri May 06 20:05:06 IST 2022 C/SCA/2588/2020 CAV JUDGMENT DATED: 29/04/2022 said confidential datas with their counter part located overseas in real time via a video call, while the court commission proceedings were ongoing.
25. In case of Modalavalasam Lattchan Naidu and another versus Rajah Saheb Maherban Destan Raja and another, reported in AIR 1934 Mad 548, it was held as under:
"The Court granted the petition and issued a warrant to the Commissioner returnable on August 3, 1932. The Commissioner completed his inspection on July 31, 1932, and signed his report on August 22, 1932. No notice was given to defendants of this second petition, nor was any notice given to them of the issue of the Commissioner nor had they any opportunity afforded to them of being present when the Commissioner made his inspection. The whole thing was done behind their back. It must be remembered that Rule 10 (2) of Order XXVI, Civil Procedure Code, makes the report of the Commissioner evidence in the suit. Therefore, it is of importance that the report should not be founded on representation made to the Commissioner or on matters brought to his notice by one party to the suit alone. Indeed, it is so manifestly improper that one party to a suit should be given a commission and the advantage of a report by the Commissioner without the knowledge of the opposite party that I think this alone would be sufficient to justify the interference of a revision Court. But there is Rule 18 of Order XXVI which says that when a commission is issued under this order the Court shall direct that the parties shall appear before the Commissioner in person or by their agents or Pleaders. Sub-rule 2 of Rule 18 says that where all or any of the parties do not so appear the, Commissioner may proceed in their absence. Rule 18 is mandatory, and is intended to ensure that the parties have notice of the appointment of the Commissioner and that they must attend his investigation. There is no power in the Court to issue Page 35 of 50 Downloaded on : Fri May 06 20:05:06 IST 2022 C/SCA/2588/2020 CAV JUDGMENT DATED: 29/04/2022 an ex parte commission. It has been suggested that an emergency excused the order of the District Munsif I think that there was no more emergency on July 29, than there was on July 22, when the first petition was filed; but an emergency could not absolve the District Munsif from complying with Rule 18."
26. In case of Kishore H. Desai v. Lilawati Virji Chheda and Ors, reported in (1993) 2 Mah LJ 1155, it is observed in para 13 to 21 as under:
"The Court has discretion to issue commission under Order 26, Rule 9 of the C.P.C. ex parte. However, after the issuance of commission, it is the duty of the Court to issue notice to the concerned party and the commission cannot be executed unless the notice is given to all the parties. I am inclined to think that the provisions of Order 26, Rule 18 are mandatory provision. If for any reason the Court fails to give notice it becomes the duty of the commissioner to give notice to the other party. After the notice is given if the parties fail to appear, the commissioner will be at liberty to proceed in their absence."
27. This Court in Special Civil Application No. 8976 of 2007 (Hon'ble Mr. Justice S. R. Brahmbhatt, J.), in para 7 has observed as under:
"In view of this prayer, it can well be said that the dispute in question for the boundaries and over lapping boundaries of land, which would have warranted any local investigation, in fact, the title of the suit land is to be determined and when such a prayer is made, and especially when there is no dispute with regard to over lapping boundaries or any dispute requiring local investigation as envisaged under order 26 Rule 9 of the CPC, the Court Commissioner could not have been appointed or else it would Page 36 of 50 Downloaded on : Fri May 06 20:05:06 IST 2022 C/SCA/2588/2020 CAV JUDGMENT DATED: 29/04/2022 amount to giving an opportunity to parties to have the evidences or creating the evidences. The parties are at before the Court and they will have to avail the opportunity of establishing their case for all the contentions and therefore, in my view, the application for appointment of Court commissioner has rightly been rejected"
28. In case of Rani Aloka Dudhoria and others v. Goutam Dudhoria and others, reported in 2009 SCC OnLine SC 507, iit is observed in para 68 to 70 that:
"68. It is not necessary for us to delve in detail in regard to the conduct of Shri Anand Aggarwal, Advocate, but in view of Rule 18 of Order XXVI of the Code of Civil Procedure, there cannot be any doubt, whatsoever that the Commissioner should have issued notice to all the parties.
69. Mr. Manoj Goel has placed reliance on a large number of decisions before us to contend that Rule 18 of Order XXVI is mandatory. We, however, need not advert to the said decisions as atleast seven out of eight plaintiffs contend before us that they did not have notice of bidding. None of the plaintiffs have been shown to have bid for any of the three properties. It is unlikely that they would stay out even if they had notice and allowed the defendants to bid behind their back. Sheema Dudhoria evidently had been supporting the defendants. Even the learned Single Judge recorded that she had given instructions to support the case of the defendants. Such a notice was also necessary as in tion each party has an individual right. One of them atleast is siding with the defendants. Even the plaintiffs admittedly had received payment in part. Even the defendants did not offer the bid jointly. Defendant No.2 in his individual capacity had offered his bid in one of the properties in his individual name and only with defendant No.3 in respect of one of the properties.
70. It must also be placed on record that the High Court in its order dated 10th March, 1997, categorically directed the Page 37 of 50 Downloaded on : Fri May 06 20:05:06 IST 2022 C/SCA/2588/2020 CAV JUDGMENT DATED: 29/04/2022 Commissioner of Partition to give at least 7 days' clear notice to the parties before holding any such meeting so as to enable them to be present personally or through their advocates. Issuance of such a notice was imperative in character."
29. Again this court in Special Civil Application No. 110186 of 2012 (Hon'ble Mr. Justice GR Udhwani, J.) has observed in para 12, 13 and 14 as under:
"12. Under O.26 R.9 what is required to be elucidated is a matter in issue and if development takes place subsequently in relation to the subject matter of the suit during the pendency of the suit which has relevance to the subject matter of the suit, it can be said that even that development is a matter in issue, because finally the rights and liabilities of the parties can be determined also on the basis of such subsequent development. The trial Court mentioned in the impugned order the fact that it has considered the contents of the application Exhibit-21, therefore, it cannot be said that the trial Court was not conscious of the fact that for what the Commission was being appointed. It is not necessary for the Court to elaborately mention the reasons once it notes that it was convinced by the facts mentioned in the application itself. Therefore, the argument that the Court did not come to the conclusion as required under O.26 R.9 has no merits. Consequently, the argument that the Court merely reasoned that no prejudice is going to be caused if the commission is appointed also has no merits.
13. It is true that there is already a report on record of the Court with regard to disputed property. But, that report was before the demolition took place and therefore it cannot be said that on the same subject another Commission was being appointed. If the condition of the land subsequent to demolition is brought on record, it cannot be said that the respondents will be able to establish their possession through such local inspection. Therefore, the argument that the intention of the respondents is to collect the evidence and nullify the documents showing handing Page 38 of 50 Downloaded on : Fri May 06 20:05:06 IST 2022 C/SCA/2588/2020 CAV JUDGMENT DATED: 29/04/2022 over of the possession of the suit property to the petitioner also has no merits.
14. It is, however, true that the Courts would not issuing Commission for recording possession of a particular party. Therefore while dismissing this petition it is required to be clarified that the Commissioner would not record anything which will assist the respondents in establishing their possession before the trial Court or appellate Court."
30. This Court in Special Civil Application No. 11890 of 2020 (Hon'ble Mr. Justice, A. Y. Kogje, J.) has observed in Para 11, 14, 37 and 39 as under:
"11. The act on the part of the respondent Nos.4 and 5 is the act of suppression of material facts and amounts to playing fraud with the Court in getting the order passed below Exh7 passed in their favour. When the suppression and fraud was brought on the record of the Court by an application Exh-10, the Civil Judge ought to have considered such aspect. However, the Civil Judge as who has not taken into consideration such aspect in correct perspective and without assigning any reasons, has rejected an application Exh-10.
14. It is submitted that under Order-26 Rule-9 of the Code of Civil Procedure, which pertains to the issue of drawing the panchnama does not put any other restriction or even the Notice to the parties to be heard before passing of such order. It is submitted that the only requirement under the law is that the intimation to the concerned parties about the details regarding carrying out of the panchnama like the name, time, etc.
37. The Court is of the view that at each stage of the suit, the litigant coming to the Court, has to come with clean hands, it is not the case where the previous panchnama was drawn was Page 39 of 50 Downloaded on : Fri May 06 20:05:06 IST 2022 C/SCA/2588/2020 CAV JUDGMENT DATED: 29/04/2022 behind back of the respondent Nos.1 to 5 or that they were unaware of drawing of such panchnama and were therefore, precluded from bringing this aspect to the notice of the Civil Judge in Special Civil Suit No.96 of 2020. The Court is also of the view that had this aspect been brought to the notice at the stage of passing the Order below Exh-7, then such material would have been of some relevance before passing of the Order. Therefore, the Order below Exh-10, the Civil Judge has committed jurisdictional error in not recalling the Order which was based on the suppression of material fact.
39. Such reasons cannot be also justified as the Court is of the opinion that pending the Special Civil Suit No.212 of 2019, there is an attempt on the part of the parties to the suit in changing the status of the land in planned manner and filing of Second Suit so as to create the evidence with regard to the possession of the suit land which in the subsequent suit is now claimed by the respondent Nos.4 and 5 and to substantiate such claim and pleadings, an application for drawing the panchnama was made and ordered. This would amount to giving premium to the wrong."
31. In the present case, admittedly after passing the order by this court on 29.01.2020 issuing local commissioner ex-parte against the respondent, it was mandatory for the court commissioner under Order 26 Rule 18 of the Code to issue notice to the concerned parties. In the present case, no notice of commission was issued to the respondent herein and petitioners alongwith its senior officials entered into the premises of the respondent. It must be remembered that Rule 10(2) of Order 26 of the code makes the report of the Page 40 of 50 Downloaded on : Fri May 06 20:05:06 IST 2022 C/SCA/2588/2020 CAV JUDGMENT DATED: 29/04/2022 Commissioner evidence in the suit. Therefore, it is of importance that the report should not be founded on representation made to the Commissioner or on matters brought to his notice by one party to the suit alone. In fact, it is so manifestly improper that one party to a suit should be given a commission and the advantage of a report by the Commissioner without the knowledge of the opposite party. This Court is satisfied to interfere in the present proceedings so far admissibility of the report submitted by the Court Commissioner.
32. It is principle of natural justice that it is only evidence taken in the presence of the party that can be used against him. It appears that Order 26 Rule 18 contemplates that opportunity to be given to the party to be present before the commissioner in the property at the time of investigation.
33. Even apart from the principles underlying order 26 Rule 18 of the Code, said provisions also is imperative in nature. The presence of the parties is considered imperative by the very provision contained in Order 26 Rule 18 of the Code. Consequently, non observance of the provision contained in Order 26 Rule 18 will not justify reception of the report as part of the evidence under Order 26 Rule 10 Sub Rule 2 of the code.
34. It is not necessary for this court to deal in detailed Page 41 of 50 Downloaded on : Fri May 06 20:05:06 IST 2022 C/SCA/2588/2020 CAV JUDGMENT DATED: 29/04/2022 regarding he conduct of the court commissioner to part a view under Rule 18 of Order 26 of the Code, there cannot be any doubt arisen that commissioner should have issued notice to all the parties.
35. It further appears from the record that the petitioners have received the report of the court commissioner and they are in possession of the said report. No direction was issued by this court to handover a copy of the report by the court commissioner to the present petitioners. The petitioners have not disclosed before the court commissioner about pasing the order dated 3rd March 2020/4th March 2020, this court has directed that court commissioner's report be kept in the custody of Nazir and if same is required by the learned trial court then petitioners may approach the trial court which would then decide the application in accordance with law.
36. Certain papers were produced by the petitioners during the course of hearing purporting to be of an application supposedly made on 05.03.2020 for calling of the court commissioner's report submitted to this Court. The said application preferred by the petitioner is still pending and not heard by the court below, and however, report of the court commissioner is available with the petitioners and in their possession. Further, it appears from the record that in total 11 Page 42 of 50 Downloaded on : Fri May 06 20:05:06 IST 2022 C/SCA/2588/2020 CAV JUDGMENT DATED: 29/04/2022 sealed covers, court commissioner's reports were sent to this court on 21st September 2020 to be kept in a custody of Nazir. Further, there is no provisions of law much less under Order 26 Rule 10 of the Code that the copy of the court commissioner's report may be given to the parties against the directions of the court. It is supersized that however, there was no direction issued by this court while passing an order on 29.01.2020 then as to how and why such report is available into the hands of the petitioners.
37. It further appears from the record that after completion of the inspection of the premises of the respondent by the court commissioner, the petitioners purposely circulated disparaging/defaming articles regarding the respondent which featured in prominent trade magazines stating that the respondent is carrying out infringing activities. Such deliberate acts of spreading and disparaging information only shows that the petitioners are desperate and are trying their level best to damage the goodwill of the respondent.
38. From the averments made in the plaint by the petitioners before the trial court, it appears that there was no specific averments as to any particular product or model of the respondent which allegedly infringes its rights under the Patent Act. As submitted by the respondent, application dated Page 43 of 50 Downloaded on : Fri May 06 20:05:06 IST 2022 C/SCA/2588/2020 CAV JUDGMENT DATED: 29/04/2022 21.02.2008 of the petitioners under the Patent Application No. 876/CHENP/2008 was rejected vide order dated 13.10.2020 under Section 15, 25(1) of the Indian Patent Act, 1970 and appeal is pending before the Intellectual Property Appellate Board. Another Patent Application No. 1606/MUMNP/2009 with PCT Application No. PCT/IL2008/00032 was granted as Indian Patent No. 271425 on the basis of priority of its Israel Patent Application No. 181484. As per the submissions of the respondent, this Israel Patent Application No. 181484 was abandoned way back on 28.10.2010.
39. Learned advocate for the petitioners in support of his arguments has relied upon the judgments passed by this Court in Special Civil Application No. 11240 of 2017 (Hon'ble Mr. Justice CL Soni, J.) wherein ex-parte order was passed for appointment of court commissioner for local inspection for the purpose of inventory of the chicaneries/devices at the premises of the respondents No. 1 to 12.
40. In another matter, Hon'ble Delhi High Court in case of Anant Construction (P) Limited v. Ram Niwas, held that there was a question to be decided under order 6 read with order 8 of the Code wherein it was observed that defendant has to specifically deny everything-every material averment in written statement is presumed to be denied by the plaintiff and Page 44 of 50 Downloaded on : Fri May 06 20:05:06 IST 2022 C/SCA/2588/2020 CAV JUDGMENT DATED: 29/04/2022 for that purpose, he need not file a replication. In the present case there is no question of under Order 6 or order 9 of the code.
41. In another case, Hon'ble High Court of Bombay at Goa, in Writ Petition No. 210 of 2015, in case of UTV Motion Pictures and Ors v. Murphy Enterprises and Ors., there was a question under Order 6 Rule 14 of the Code, which clearly provides for pleadings shall mean plaint or written statement containing of an affidavit in reply or rejoinder could not partake or nature of pleadings within meaning of Order 6 Rule 1 of the Code.
Here also, facts of the cited case is quite different from the present case.
42. In another case, Hon'ble High Court of Andhra Pradeh in Second Appeal No. 511 of 2008, in case of K. Sajjan Raj v. Gopisetty Chandramouli, same dispute of pleadings of written statement was involved. It was held therein that non filing of any answer by plaintiff to specific pleading of defendant that there was fresh lease or renewal of lease could not be taken as admission made by the plaintiff. Further, except self-serving statement of defendant, there was no iota of evidence to show that there was oral agreement between plaintiff and defendant extending lease for another period of Page 45 of 50 Downloaded on : Fri May 06 20:05:06 IST 2022 C/SCA/2588/2020 CAV JUDGMENT DATED: 29/04/2022 20 years. However, defendant was in possession of the property as lessee and it was not in dispute that plaintiff had issued quit notice and inspite of receiving said notice, defendant did not vacate the premises. Therefore, it was held that though the defendant had taken specific plea in his written statement and even if same was not denied by way of filing rejoinder or additional written statement by plaintiff, same did not amount to admission and appeal was dismissed.
43. In another case, Hon'ble High Court of Madras in Appeal No. 187 of 1967, in case of Veerasekhara Varmarayar v. Amirthavalliammal and Ors, the issue is relating to Section 6 Explanation 1 of the Hindu Succession Act. In this case, death of coparcener leaving behind him heirs mentioned in Section. Share of deceased notionally separated from date of his death from joint family. It was held that Manager cannot represent heirs of deceased and deal with their interest. Here the facts are completely contrary to the facts of this case.
44. In another case, this Court in Writ Petition (PIL) No. 42 of 2020 Civil Application Nos. 6, 8, 9, 10 and 11 of 2020 in case of Suo Motu v. State of Gujarat and Ors, it was a case of health issue and opening of hospitals/clinics and relates to arrangements made with private hospitals for treatment of Covid 19 patients. It was held that private Page 46 of 50 Downloaded on : Fri May 06 20:05:06 IST 2022 C/SCA/2588/2020 CAV JUDGMENT DATED: 29/04/2022 clinics/hospitals/nursing homes closed by their owners/management. State Government directed to ensure that all such private clinics/hospitals/nursing homes are immediately opened up. It was further directed to make supplement health facilities available to non Corona patients at large. The issue is not related to the present case.
45. In another case relied upon by the petitioners in Special Leave Petition (Civil) No. 2725 of 1988 in case of Union of India (UOI) and Ors. v. E. Bashyan, raising question of mega importance viz. Whether failure to supply a copy of th report of the Enquiry Officer to the delinquent before the Disciplinary Authority, makes up his mind and records the finding of guilt as against him would constitute violation of Article 311(2) of the Constitution of India and violation of principles of natural justice. The issue decided by Hon'ble Supreme Court of India in the cited case is not related to the present case.
46. The Hon'ble Supreme Court of India in Civil Appeal No. 8285 of 2009 in the case of Ram Lal and Ors v. Salig Ram and Ors, wherein it is the case of encroachment/demarcation of land. Suit of the plaintiff was dismissed as well as Appeal. High Court was justified in setting aside decree of First Appellate Court on the ground that Local Commissioner had Page 47 of 50 Downloaded on : Fri May 06 20:05:06 IST 2022 C/SCA/2588/2020 CAV JUDGMENT DATED: 29/04/2022 not carried out demarcation in accordance with applicable instructions. If the report of the court commissioner was suffering from want of compliance of applicable instructions, what course was to be adopted by High Court. In this judgment, Hon'ble Supreme Court has held in para 5 as under:
"5. If report of Local Commissioner was suffering from on irregularity ie., want of following applicable instructions, proper course for High Court was either to issue a fresh commission or to remand matter for reconsideration but entire suit could not have been dismissed for any irregularity on part of Local Commissioner. Plaintiffs had been asserting encroachment by defendants on their land and had also adduced oral and documentary evidence in that regard. First Appellate Court had allowed appeal and decreed suit filed by plaintiff not only with reference to Commissioner's report but also with reference to other evidence of parties. High Court appeared to have overlooked other evidence on record."
47. From the record, court commission appointed by this court vide order dated 29.01.2020 has not followed the provisions of the Code and has not issued any notice to the respondent before coming to the premises of the respondent. The court commissioner has acted beyond what was directed by this Court and has provided a copy of the report of the commissioner was never allowed to be parted with as it was ordered to be kept in sealed cover with the Nazir of the court.
48. The fact that local commissioner's report and for that matter a properly drawn up report, is requisite in the Page 48 of 50 Downloaded on : Fri May 06 20:05:06 IST 2022 C/SCA/2588/2020 CAV JUDGMENT DATED: 29/04/2022 present case for the purpose of elucidating the matter in dispute is not of any debate. The order dated 29.01.2020 passed by this Court having attained finality as it was not challenged by the respondent.
49. In the given issue and circumstances, this court is of the view that if the report of the local commissioner is suffering from irregularity ie. want of following applicable instructions and mandatory provisions of the Code, the proper course for this Court would be either to issue a fresh commission or to remand the matter for reconsideration.
50. For just and effectual determination of all questions involved in the matter, reports submitted by the court commissioner shall be discarded by the court below and fresh commission shall be issued by the trial court as per the order dated 29.01.2020 following requisite provisions of the Code.
51. After taking report of the local commissioner afresh and affording an opportunity to the parties to submit their objections, if any, trial court to decide the suit in accordance with law.
With these observations, all the four petitions are disposed of.
(B.N. KARIA, J) Page 49 of 50 Downloaded on : Fri May 06 20:05:06 IST 2022 C/SCA/2588/2020 CAV JUDGMENT DATED: 29/04/2022 FURTHER ORDER:
Learned advocate for the petitioners has requested to suspend the judgment and order passed by this court today.
Learned advocate for the respondent has strongly objected the same and submitted that this court has directed to issue fresh commission, and therefore, there is no need to suspend the judgment and order passed by this court today.
Considering the peculiar facts of the case and the submissions made by learned advocates for the respective parties and as the fact remains that this court has discarded the reports of the local commissioner and directed to issue fresh local commission, request of learned advocate for the petitioner cannot be accepted by this court and hence, his prayer of suspending the judgment and order is hereby rejected.
(B.N. KARIA, J) K. S. DARJI Page 50 of 50 Downloaded on : Fri May 06 20:05:06 IST 2022