Himachal Pradesh High Court
Ulink Agritech Private Ltd vs Sml Limited & Others on 20 August, 2024
Author: Mamidanna Satya Ratna Sri Ramachandra Rao
Bench: Mamidanna Satya Ratna Sri Ramachandra Rao
1 ( 2024:HHC:7049 ) IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA OSA No.5 of 2024 Reserved on: 07.08.2024 .
Pronounced on:20.08.2024
( 2024:HHC:7049 )
ULink AgriTech Private Ltd. ......Appellant
Versus
SML Limited & Others .....Respondents
________________________________________________________________ Coram:
Hon'ble Mr. Justice Satyen Vaidya, Judge.
Whether approved for reporting?
r to Hon'ble Mr. Justice M.S. Ramachandra Rao, Chief Justice.
For the appellant : Ms. Devyani Sharma, Sr. Advocate with Mr. Adarsh Ramanujan and Mr. Vipul Sharda, Advocates.
For respondent no.1 : Mr. Ashok Aggarwal and Mr. Vinay Kuthiala, Sr. Advocates with Dr. Sanjay Kumar, Ms. Arpita Sawhney, Mr. Atul Jhingan and Mr. Priyansh Sharma, Advocates.
M.S. Ramachandra Rao, Chief Justice.
In this OSA though the appellant has challenged a common order dt.
12.01.2024 passed in OMP no.43 of 2024 and OMP no.34 of 2024 in COMS no.3 of 2024, the counsel for the appellant had confined this appeal only to the order dt. 12.01.2024 in OMP no.34 of 2024. Therefore, we permit the appellant to challenge only the said order in this OSA.::: Downloaded on - 20/08/2024 20:38:08 :::CIS 2
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2. The impugned order is an ex-parte ad-interim injunction granted by the learned Single Judge in favour of the 1 st respondent/plaintiff, restraining the appellant (defendant no.3) and others defendants etc. from infringing the patent .
rights of the 1st respondent/plaintiff under Indian Patent No.282092 in any manner including by advertising, marketing and/or selling such product by and through any website(s)/e-portal(s), itself or 3rd party or any other mode, launching, making, using, offering for sale, selling, importing and/or exporting any product including "SELZIC" or any other product covered by the suit patent IN-282092 granted on 30.03.2017 to the 1 st respondent, while directing compliance under Order 39 Rule 3 CPC.
3. The appeal was admitted on 01.08.2024 in the presence of Senior Counsel for the 1st respondent after hearing the matter on admission and CMP no.12083 of 2024 was listed on 07.08.2024 for hearing.
4. On 07.08.2024, orders in the OSA itself were reserved, after making it clear to the parties that the Court is not intending to go into the merits of the matter, having regard to the contention raised by the counsel for the appellant that the impugned ex-parte ad-interim injunction order passed by the learned Single Judge does not contain reasons as mandated by proviso to Order 39 Rule 3 CPC. It was made clear that if such contention found favour before this Court, this Court would remit the matter back to the learned Single Judge by setting aside the order of the learned Single Judge and give opportunity to all parties to make submissions for a fresh decision in OMP no.34 of 2024. ::: Downloaded on - 20/08/2024 20:38:08 :::CIS 3
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5. Therefore, no replies were called for in the OSA since the Court was only focusing on this limited aspect and would not be going into the merits of the claims of the parties.
.
6. Arguments of learned senior counsel for the appellant/defendant no.3 and the two learned senior counsel for respondent no.1 were heard and orders were reserved.
Contention of counsel for appellant
7. The learned Senior Counsel for the appellant referred to the impugned order passed by the learned Single Judge in OMP no.34 of 2024 in COMS no.3 of 2024 and contended that the learned Single Judge dealt with the said OMP from Paras 6 to 13 in the said order; that the Court while issuing notice, heard the learned counsel for the 1st respondent/plaintiff and referred to the said aspect in Paras 6 & 7 and then recorded the contentions of the counsel for the 1st respondent/plaintiff in Para 7(i) to Para 11; and thereafter by merely observing that "in view of the said submissions, and at that stage," the learned Single Judge "was of the considered view that a prima facie case is made out in favour of the 1st respondent/plaintiff for grant of ex-parte ad-interim relief; that balance of convenience was in favour of the said party as otherwise irreparable loss and injury would be caused to it in case the prayer was not considered", granted the ex-parte ad-interim injunction.
8. The learned Senior counsel contended that what was stated by the learned Single Judge from Paras 6 to 11 of the impugned order, are not the reasons of ::: Downloaded on - 20/08/2024 20:38:08 :::CIS 4 ( 2024:HHC:7049 ) the learned Single Judge for granting the ex-parte interim relief, and Para 12 of the said order does not disclose application of mind by the learned single Judge. She contended that the learned Single Judge was bound to record reasons .
for her opinion that the object of granting the injunction would be defeated by delay, if notices were to be issued before granting the interim relief as held in the judgments of the Supreme Court in Morgan Stanley Mutual Fund vs. Kartick Das1, Shiv Kumar Chadha vs. Municipal Corporation of Delhi & Ors.2, and the recent decision of the Supreme Court in Bloomberg Television Production Services India Private Limited & Ors. vs. Zee Entertainment Enterprises Limited3.
9. The learned Counsel for the appellant contended that an ex-parte injunction can be granted only under exceptional circumstances; the learned single Judge has to discuss prima facie the strength of the plaintiff's case at least by cursorily dwelling on the merits of the plaint; and merely recording that a prima facie case exists, that the balance of convenience is in favour of grant of the injunction, and that an irreparable injury would be caused, would not amount to an application of mind to the facts of the case; that grant of an ex-parte ad-interim injunction by way of an unreasoned order, would fall within the ambit of discretion being exercised arbitrarily, capriciously & 1 (1994) 4 SCC 225 2 (1993) 3 SCC 161 3 (2024) SCC OnLine SC 426 ::: Downloaded on - 20/08/2024 20:38:08 :::CIS 5 ( 2024:HHC:7049 ) perversely; and such an order would warrant interference by this Bench in appeal.
Contentions of counsel for respondent no.1/plaintiff .
10. Mr. Ashok Aggarwal, learned Senior Counsel appearing for the applicant, and Mr. Vinay Kuthiala, learned Senior Counsel appearing for the 1 st respondent/plaintiff, however, contended vehemently that the use of the words "In view of the above, at this stage, I am of the considered view that, a prima facie case is made out in favour of the plaintiff-applicant for grant of ex-parte ad-interim relief", indicates that there is application of mind by the learned Single Judge to the factors necessary for granting ex-parte ad-interim relief; and that this reasoning itself is sufficient to sustain the impugned order without more.
11. They also contended, inter alia, as under:-
a) That when an appeal is preferred against two orders, the appeal has to be treated as defective, and on an oral representation of the counsel for the appellant, the Court cannot permit the appellant to confine the appeal only to one of the orders;
b) That the appeal against the order passed by the learned Single Judge in the OMP is not maintainable under Section 13 of the Commercial Courts Act, 2015 or under Rule 11 of the High Court of Himachal Pradesh Case Flow Management (High Court) Rules, 2005;::: Downloaded on - 20/08/2024 20:38:08 :::CIS 6
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c) The impugned order should be deemed to contain the requirement of reasons even if such reasons are not stated in so many words. They placed reliance on the judgment of the Supreme Court in .
A. Venkatasubbiah Naidu vs. S. Chellappan & Ors.4;
d) That appeals against the interlocutory orders should not be entertained, when there is a remedy provided to the aggrieved party to seek vacation of the ex-parte injunction order in Rule 4 of Order 39 CPC;
e) They also contended that the impugned order passed by the learned Single Judge is an order passed only under Order 39 Rule 3 CPC, against which no appeal is provided in Order 43 Rule 1 CPC; that under Clause(r) of Order 43 Rule 1 CPC an appeal is provided only against the orders passed under Rule 1, Rule 2, Rule 2A, Rule 4 or Rule 10 of Order 39 CPC, but not in respect of an order passed under Rule 3 of Order 39 CPC; and therefore, this appeal should be dismissed as not maintainable. Reliance is placed in support of his contention on M/s Parijatha And Anr. vs Kamalaksha Nayak And Ors.5, Smt. Urmila Devi and others vs. Nagar Nigam, Luknow,6 Lakhani vs. Ram Niwas and others,7; & 4 (2000) 7 SCC 695 5 AIR 1982 Karnatka 105 6 AIR 2003 Allahabad 158, 7 AIR 1987 Allahabad 345 ::: Downloaded on - 20/08/2024 20:38:08 :::CIS 7 ( 2024:HHC:7049 )
f) Discretionary orders of the learned Single Judge cannot be interfered with in exercise of appellate jurisdiction. They cited the decisions in The Saharanpur Cooperative Cane Development .
Union Ltd. and others vs. the Lord Krishna Sugar Mills Ltd and others,8 Wander Ltd. and anr. vs. Antox India (P) Ltd.,9 M/s Gujarat Bottling Co. Ltd and others vs. Coco Cola Company and others,10 Sree Jain Swetambar Terapanthi Vid (S) vs. Phundan Singh and others,11N.R. Dongre and others vs. Whirlpool Corporation and another12 & Esha Ekta Appartments CHS Ltd. And others vs. Municipal Corporation of Mumbai and another13 Consideration by the Court.
RE:Contention-(a)
12. As regards the first contention-(a) of the 1 st respondent's counsel is concerned, there is no restriction on the power of the Court under Section 151 CPC to permit the appellant to confine the appeal to only one of the impugned orders where by mistake a single appeal is preferred against two orders.
13. In our opinion, there is no prohibition in the Code of Civil Procedure prohibiting the Court from doing so and the inherent power of the Court can 8 AIR 1973 SC 1451, 9 1990 (Supp.) SCC 727, 10 AIR 1995 SC 2372, 11 AIR 1999 SC 2322, 12 (1996) 5 SCC 714 13 (2012) 4 SCC 689.
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( 2024:HHC:7049 ) come to its aid to act ex debito justitiae from doing real and substantial justice between the parties.
14. Counsel for respondent no.1 has not been able to point out any provision .
in the CPC prohibiting the Court from adopting this course of action. So by allowing the appellant to confine the appeal to only one of the IAs , the defect , if any, in the appeal as originally filed stands rectified. Therefore this point is held against the respondent no.1.
RE:Contention-(b)
15. As regards contention-(b) urged by the counsel for respondent no.1, we may point out that Section 13 of the Commercial Courts Act, 2015 deals with appeals under the said law. It states as under:-
"13. Appeals from decrees of Commercial Courts and Commercial Divisions.-- [(1) [Any person aggrieved by the judgment or order of a Commercial Court below the level of a District Judge may appeal to the Commercial Appellate Court within a period of sixty days from the date of judgment or order.
(1A) Any person aggrieved by the judgment or order of a Commercial Court at the level of District Judge exercising original civil jurisdiction or, as the case may be, Commercial Division of a High Court may appeal to the Commercial Appellate Division of that High Court within a period of sixty days from the date of the judgment or order:
Provided that an appeal shall lie from such orders passed by a Commercial Division or a Commercial Court that are specifically enumerated under Order XLIII of the Code of Civil Procedure, 1908 (5 of 1908) as amended by this Act and section 37 of the Arbitration and Conciliation Act, 1996 (26 of 1996).] (2) Notwithstanding anything contained in any other law for the time being in force or Letters Patent of a High Court, no appeal shall lie from any ::: Downloaded on - 20/08/2024 20:38:08 :::CIS 9 ( 2024:HHC:7049 ) order or decree of a Commercial Division or Commercial Court otherwise than in accordance with the provisions of this Act." (emphasis supplied)
16. Thus, according to the proviso to sub-Section (1A) of Section 13 of the .
said Act, an appeal would lie from an order passed by Commercial Division of a High Court from such orders as are specifically enumerated under Order 43 of the Code of Civil Procedure, 1908 also in addition to final judgments in the proceedings before the learned single Judge of the High Court.
17. Admittedly, the application filed by the 1 st respondent before the learned Single Judge, i.e., OMP no.34 of 2024, was under Order 39 Rules 1 & 2 read with Section 151 of CPC for interim injunction pending suit.
18. The learned Single Judge had passed an order in that application, which is impugned herein on 12.01.2024, and while granting exparte ad-interim injunction in Para 12 of the said order, directed compliance of Order 39 Rule 3 CPC.
19. Order 39 Rule 3 CPC is a procedural provision which normally requires the Court to grant a notice of the application to be given to the opposite party before granting a temporary injunction; but where it appears that the object of granting such injunction would be defeated by delay, the proviso would require the Court to record reasons for forming opinion that the object of granting injunction would be defeated by delay.
20. In our considered opinion, the relief granted by the learned Single Judge is in the nature of an interim injunction under Order 39 Rule 2 CPC. ::: Downloaded on - 20/08/2024 20:38:08 :::CIS 10
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21. We do not agree with the contention of the respondent's counsel that the impugned order should be treated as an order only under Order 39 Rule 3 CPC and not as an order under Order 39 Rule 2 CPC. Merely because the learned .
single Judge directed the respondent no.1 /plaintiff to comply with Rule 3 of Or 39 CPC, it cannot be said that the order of the learned single Judge is referable to that provision.
22. Further, the Supreme Court in A. Venkatasubbiah Naidu's case (4 supra), in Para 13 explained that Order 39 is the repository of the power to grant orders of temporary injunction with or without notice, interim or temporary or till further orders or till the disposal of the suit.
It rejected the plea that the power to pass interim ex-parte orders of injunction does not emanate from the said Rule. It held that any order passed in exercise of the powers in Rule 1 of Order 39 CPC would be appealable under Order 43 Rule 1 of the Code. It further held the choice is for the party affected by the order either to move the appellate Court or to approach the same Court which passed the ex-parte order for any relief (possibly under Rule 4 of Or.39 CPC).
23. The judgments in M/s Parijatha And Anr.(5 supra) , Smt. Urmila Devi and others ( 6 supra), Lakhani (7 supra) cited by the counsel for respondent no.1 taking the view that an ex parte injunction order is not appealable under or.43 Rule 1 (r) CPC, are therefore not good law. ::: Downloaded on - 20/08/2024 20:38:08 :::CIS 11
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24. In the instant case, the ex-parte ad-interim injunction granted by the learned single Judge is referable to Rule 2 of Order 39 of CPC, since it is with regard to a patent infringement which would not come under Order 39 Rule 1 .
CPC, but the logic of the Supreme Court's judgment in A.Venkatasubbiah Naidu's case (4 supra) equally applies. Rule 2 of Order 39 CPC is the repository of the power to grant orders of temporary injunction with or without notice, interim or temporary, like Rule 1 of Or.39 in situations covered by that provision like the instant one, and the order passed by the learned single Judge is one passed in exercise of the power in Rule 2 of Order 39 CPC and would be appealable under Order 43 Rule 1 Clause (r) of the CPC.
25. Once this is so, as per the proviso to sub-Section (1A) of Section 13 of the Commercial Courts Act, 2015, the order of the learned Single Judge/Commercial Division of the High Court, granting ex-parte ad-interim injunction, is appealable under Order 43 of CPC, and hence, is also appealable under Section 13 (1A) of the Commercial Courts Act, 2015 and the contention to the contra of the respondent No.1's counsel is rejected.
Contention(c)
26. Coming to contention (c) raised by the 1 st respondent's counsel, this point has been dealt with by the Supreme Court in Shiv Kumar Chadha's case ( 2 supra), Morgan Stanley's case (1 supra) & in Bloomberg Television Production Services India Private Limited & Ors case ( 3 supra). ::: Downloaded on - 20/08/2024 20:38:08 :::CIS 12
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27. In Shiv Kumar Chadha's case (2 supra), the Supreme Court held that power to grant injunction is an extraordinary power vested in the Court to be exercised taking into consideration the facts and circumstances of a particular .
case; that the Courts have to be more cautious when the said power is being exercised without notice or hearing the party who is to be affected by the order so passed; and that is why Rule 3 of Order 39 of the Code requires that in all cases the Court shall, before grant of an injunction, direct notice of the application to be given to the opposite party, except where it appears that object of granting injunction itself would be defeated by delay. It noted that by the CPC Amendment Act, 1976, a proviso had been added to the said rule saying 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......". ( emphasis supplied) It held that when the statute itself requires reasons to be recorded, the Court cannot ignore that requirement by saying that if reasons are recorded, it may amount to expressing an opinion in favour of the plaintiff before hearing the defendant.
It further held that the requirement for recording reasons for grant of ex-parte injunction, cannot be held to be a mere formality and that such requirement is consistent with the principle that a party to a suit, who is being restrained from exercising a right, which such party claims to exercise either ::: Downloaded on - 20/08/2024 20:38:08 :::CIS 13 ( 2024:HHC:7049 ) under a statute or under a common law, must be informed why instead of following the requirement of Rule 3, the procedure prescribed under the proviso has been followed.
.
It also held that the party which invokes the jurisdiction of the Court for grant of an order of restraint against a party, without affording an opportunity to him of being heard, must satisfy the Court about the gravity of the situation and the Court has to consider briefly these factors in the ex-parte order. It held that the ex-parte orders have far reaching effect and, therefore, the condition has been imposed that the Court must record reasons before passing such order. It declared that if compliance with the proviso is made only optional and not obligatory, then the introduction of the proviso by the Parliament shall be a futile exercise and that part of Rule 3 will be a surplusage for all practical purposes.
It also held that if the statute requires a thing to be done in a particular manner, it should be done in that manner or not at all.
28. In Morgan Stanley's case ( 1 supra), in Para 38, the Supreme Court reiterated its judgment in Shiv Kumar Chadha's case (2 supra), and emphasized the need to give reasons before passing ex-parte orders of injunction. The Supreme Court also laid down the following principles for grant of ex-parte injunction by a Court. It held:- ::: Downloaded on - 20/08/2024 20:38:08 :::CIS 14
( 2024:HHC:7049 ) "36. As a principle, ex parte injunction could be granted only under exceptional circumstances. The factors which should weigh with the court in the grant of ex parte injunction are-
(a) whether irreparable or serious mischief will ensue to the plaintiff;
.
(b) whether the refusal of ex parte injunction would involve greater injustice than the grant of it would involve;
(c) the court will also consider the time at which the plaintiff first had notice of the act complained so that the making of improper order against a party in his absence is prevented;
(d) the court will consider whether the plaintiff had acquiesced for sometime and in such circumstances it will not grant ex parte injunction;
(e) the court would expect a party applying for ex parte injunction to show utmost good faith in making the application.
(f) even if granted, the ex parte injunction would be for a limited period of time.
(g) General principles like prima facie case balance of convenience and irreparable loss would also be considered by the court."
29. This was reiterated in Bloomberg Television Production Services India Private Limited & Ors's case (3 supra), where the Supreme Court held that Courts should not grant ex-parte injunctions except in exceptional cases; they must record that there exists a prima facie case, balance of convenience and irreparable loss or harm for the grant of interim relief; that these requirements must not be applied mechanically to the detriment of the other party; that a mere cursory reproduction of the submissions and precedents before the court is not sufficient; the Court must provide detailed reasons and analyze how the three tests are satisfied; and if the trial Judge does not discuss, even cursorily the prima facie strength of the plaintiff's case, nor does he deal with balance of ::: Downloaded on - 20/08/2024 20:38:08 :::CIS 15 ( 2024:HHC:7049 ) convenience or irreparable hardship that is caused, then the order would have to be treated as an unreasoned order warranting interference by the Appellate Court.
.
30. This Court had applied the judgment of the Supreme Court in Shiv Kumar Chadha's case ( 2 supra), in M/s Salus Pharmaceuticals and Anr v. M/s Shilpa Medicare Limited14 and also in M/s Eris Lifesciences Ltd vs. Boehringer Ingelheim Pharma Gmbh15.
31. Having regard to the above settled legal position, we do not agree with the contention of the counsel for the respondent that reasons must be deemed to be contained by implication in the impugned order passed by the learned Single Judge.
32. No doubt, in the judgment in A. Venkatasubbiah Naidu (4 supra), there is an observation by the Supreme Court in Para 12, which states as under:-
"12. What would be the position if a court which passed the order granting interim ex parte injunction did not record reasons thereof or did not require the applicant to perform the duties enumerated in clauses (a) & (b) of Rule 3 of Order 39. In our view such an Order can be deemed to contain such requirements at least by implication even if they are not stated in so many words. But if a party, in whose favour an order was passed ex parte, fails to comply with the duties which he has to perform as required by the proviso quoted above, he must take the risk. Non-compliance with such requisites on his part cannot be allowed to go without any consequence and to enable him to have only the advantage of it. The consequence of the party (who secured the order) for not complying with the duties he is required to perform is that he cannot be allowed to take advantage of such order if the order is not obeyed by 14 Order dt. 29.07.2024 in CMP(M) no.872 of 2024 in/and FAO(OS) no.10 of 2024 15 Order dt.6.12.2023 in OSA No.3 of 2023 ::: Downloaded on - 20/08/2024 20:38:08 :::CIS 16 ( 2024:HHC:7049 ) the other party. A disobedient beneficiary of an order cannot be heard to complain against any disobedience alleged against another party."(emphasis supplied)
33. The observation with regard to presuming the existence of reasons in an .
order of ex-parte injunction, runs counter to the judgments of the Supreme Court in Morgan Stanley's case ( 1 supra) and Shiv Kumar Chadha's case (2 supra). These judgments have not been considered in A. Venkatasubbiah Naidu's case ( 4 supra). We shall therefore apply the decisions in Morgan Stanley's case (1 supra) and Shiv Kumar Chadha's case (2 supra) as the law laid down in these decisions has not been overruled.
34. Also, the judgment of A. Venkatasubbiah Naidu (4 supra) essentially deals with what is to happen if there is non-compliance by the party (who secured an ex-parte injunction) of his duty contained in Clauses (a) & (b) of Order 39 Rule 3 of CPC, which compel him to deliver to the opposite party, after he secures an order of ex-parte injunction, copy of the application for injunction and other documents, and to file on the day on which such injunction is granted or the day immediately following it, an affidavit stating that copies aforesaid have been so delivered or sent. It was held that a disobedient beneficiary of an order cannot be heard to complain against any disobedience alleged against another party and he will not be permitted to take advantage of his own wrong.
35. Therefore, this contention of the counsel for the 1 st respondent is also rejected.
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( 2024:HHC:7049 ) Contention-(d)
36. As regards the contention (d) that the appeal ought not to be entertained because there is a remedy available to the aggrieved party under Order 39 Rule .
4 CPC, the Supreme Court in A. Venkatasubbiah Naidu ( 4 supra), has held that the aggrieved party has a choice either to move the Appellate Court or to approach the same Court which passed the ex-parte order for any relief (Para
13). We have already discussed this aspect in paras 15 to 24 supra while dealing with contention (b).
37. Therefore, the 1st respondent cannot insist that the appellant avail only the remedy in Rule 4 of Or 39 CPC only inspite of the fact that it has also a choice to avail the appellate remedy under Order 43 Rule 1(r) of CPC read with proviso to Section 13 (1A) of the Commercial Courts Act, 2015, and ask this Court to dismiss the appeal. We therefore reject this plea of counsel for respondent no.1.
Contention-(e)
38. So far as the contention raised in (e) is concerned, this point has already been answered supra while dealing with point(b). We hold that the Court has no power to pass an ex-parte injunction order under Order 39 Rule 3 CPC and that any such order would be an order either under Order 39 Rule 1 or Rule 2 CPC. Such order is therefore appealable under Rule 1 (r) of Order 43 Rule 1 CPC. ::: Downloaded on - 20/08/2024 20:38:08 :::CIS 18
( 2024:HHC:7049 ) Contention-(f)
39. As regards the contention raised in point (f )by the counsel for the 1 st respondent is concerned, the Supreme Court in Wander Ltd. Case ( 9 supra) .
held:-
"14. The appeals before the Division Bench were against the exercise of discretion by the Single Judge. In such appeals, the Appellate Court will not interfere with the exercise of discretion of the court of first instance and substitute its own discretion except where the discretion has been shown to have been exercised arbitrarily, or capriciously or perversely or where the court had ignored the settled principles of law regulating grant or refusal of interlocutory injunctions. An appeal against exercise of discretion is said to be an appeal on principle. Appellate Court will not reassess the material and seek to reach a conclusion different from the one reached by the court below if the one reached by the court was reasonably possible on the material. The appellate court would normally not be justified in interfering with the exercise of discretion under appeal solely on the ground that if it had considered the matter at the trial stage it would have come to a contrary conclusion. If the discretion has been exercised by the Trial Court reasonably and in a judicial manner the fact that the appellate court would have taken a different view may not justify interference with the trial court's exercise of discretion. After referring to these principles Gajendragadkar, J. in Printers (Mysore) Private Ltd. v. Pothan Joseph :
... These principles are well established, but as has been observed by Viscount Simon in Charles Osention & Co. v. Johnston the law as to the reversal by a court of appeal of an order made by a judge below in the exercise of his discretion is well established, and any difficulty that arises is due only to the application of well settled principles in an individual case.
The appellate judgment does not seem to defer to this principle."
(emphasis supplied)
40. In Wander Limited case ( 9 supra), it was thus held that if an appeal is filed before a Division Bench against the exercise of discretion by a Single Judge, normally the Appellate Court will not interfere with the exercise of ::: Downloaded on - 20/08/2024 20:38:08 :::CIS 19 ( 2024:HHC:7049 ) discretion of the Court of first instance and substitute its own discretion. But the exception is where the discretion has been shown to have been exercised arbitrarily, or capriciously or perversely or where the Court had ignored the .
settled principles of law regulating grant or refusal of interlocutory injunctions. In such a situation, the appellate Court ought to interfere with the discretion exercised by the learned trial Judge.
41. Similar view has been taken in The Saharanpur Cooperative Cane Development Union Ltd. and others ( 8 supra), Sree Jain Swetambar Terapanthi's case (11 supra), N.R. Dongre ( 12 supra) and r Esha Ekta Apartments's case ( 13 supra).
42. Thus, in a situation like the instant one where the appellant urges that there are no reasons for grant of ex-parte injunction order, this Court in appeal cannot be restrained from interfering with the order of the learned Single Judge, if it agrees with the contention of the learned counsel for the appellant raised in point(f).
43. Now, we shall proceed to consider:
"whether in the impugned order passed by the learned Single Judge contains reasons for grant of ex-parte ad-interim injunction or not?"
44. As pointed out earlier, the learned Single Judge has dealt with OMP no.34 of 2024 from Para 6 to Para 12. Paras 6 & 7 state as under:-
"6. Notice in the aforesaid terms. Reply be filed within four weeks and rejoinder within two weeks thereafter.::: Downloaded on - 20/08/2024 20:38:08 :::CIS 20
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7. Heard. The plaintiff-applicant seeks interim relief for restraining the defendants-respondents from infringing the plaintiff's-applicant's rights in Indian Patent No.282092, Brand name (TECHNO-Z). Learned Senior Counsel for the plaintiff-applicant submitted that plaintiff's-applicant's pleaded case as supported .
with the documents is that:-
7(i) to 7(v). xxx xxx xxx...."
These two paragraphs do not contain any reasons for the grant of exparte interim relief.
45. Para 7(i) to Para 11, deal with the contentions of the Senior Counsel for
46. to the 1st respondent/plaintiff, urged before the learned Single Judge.
This is followed by Para 12, wherein the learned single Judge stated as under:-
"12. In view of above, at this stage, I am of the considered view, a prima facie case is made out in favour of the plaintiff-applicant for grant of ex-parte ad-interim relief. Balance of convenience lies in favour of the plaintiff-applicant as otherwise, irreparable loss and injury shall be caused to it in case prayer is not considered. Accordingly, the defendants are restrained by themselves, their Directors, partners, licensees, stockists and distributors, agents and/or anyone claiming through any of them, jointly and severally from infringing the patent rights of the plaintiff applicant under Indian Patent No. 282092 in any manner including by advertising, marketing and/or selling such product by and through any website(s)/e- portal(s), itself or third-party or any other mode, launching, making, using, offering for sale, selling, importing and/or exporting any product including "SELZIC" or any other product covered by the suit patent IN 282092 granted on 30.03.2017 to the plaintiff-applicant."
47. From a reading of the above passage, it is clear that the learned Single Judge had recorded her conclusion that a prima facie case has been made out in ::: Downloaded on - 20/08/2024 20:38:08 :::CIS 21 ( 2024:HHC:7049 ) favour of the 1st respondent/plaintiff for grant of ex-parte ad-interim relief, and that balance of convenience was in favour of the said party, and irreparable injury would be caused to the said party, in case the prayer is not considered.
.
48. The conclusion of the learned Single Judge is not preceded by any reasons, which reasons are mandatorily to be recorded under proviso to Order 39 Rule 3 CPC.
49. We do not agree with the contention of the learned Senior Counsel for the 1st respondent/plaintiff that Para 12 of the impugned order contains reasons for grant of ad-interim injunction or that such reasons are presumed to be implied in the said order.
50. Merely recording the contentions of the counsel for the 1 st respondent without any cursory discussion of the merits of such contentions even cursorily, would not amount to compliance with the requirement of giving reasons under proviso to Order 39 Rule 3 CPC. It thus falls within the exception mentioned in Wander Limited ( 9 Supra) that the impugned order was passed ignoring the principle contained in proviso to Rule 3 of Or.39 CPC.
51. In this view of the matter, the impugned order passed by the learned Single Judge in OMP no.34 of 2024 in COMS no.5 of 2024 is set aside; the said OMP is remitted back to the learned Single Judge for fresh consideration; the appellant is permitted to file a reply to the said OMP within one week from today; and the learned Single Judge is requested to decide the said OMP as expeditiously as possible, preferably within four weeks from the date of filing ::: Downloaded on - 20/08/2024 20:38:08 :::CIS 22 ( 2024:HHC:7049 ) of the reply by the appellant. List the OMP no.34 of 2024 in COMS no.5 of 2024 before the learned Single Judge on 22.8.2024.
52. The OSA is allowed to the above extent. No costs.
.
53. Accordingly, all pending miscellaneous application(s), stand disposed of.
(M.S. Ramachandra Rao) Chief Justice August 20, 2024.
(Yashwant)
r to (Satyen Vaidya)
Judge
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