Delhi High Court
Prabhu Shankar Aggarwal And Anr vs Anand Kumar Deepak Kumar And Anr on 21 September, 2001
Equivalent citations: 94(2001)DLT754
Author: Mukul Mudgal
Bench: Mukul Mudgal
JUDGMENT Devinder Gupta, J.
1. In these three separate appeals appellants have challenged the legality and validity of the order passed on 8.5.2000. By the said order while issuing notice, returnable on 12.7.2000, learned Single Judge restrained the appellants from carrying on any business of salted preparation like Bhujia, Paper and Sweets under the trade name of "HALDIRAM BHUJIAWALA" in any territory of India except in the territory of West Bengal.
2. Facts in brief leading to the passing of the impugned order and of filing of appeals are being narrated to the extent to which they are relevant for the purpose of deciding these appeals.
3. On 10.12.1999 a suit was filed by M/s.Anand Kumar Deepak Kumar and another (respondents 1 and 2 in these appeals) against two defendants, who were described as under:-
"1. Haldiram Bhujia Wala 2284, Arya Samaj Road, Karol Bagh, New Delhi.
2. Ashok Kumar C/o Haldiram Bhujia Wala 2284, Arya Samaj Road, Karol Bagh, New Delhi."
4. In the said suit filed in the Court of District Judge, Delhi decree was claimed against the two defendants restraining them, their partners, servants, agents, dealers, representatives, legal heirs and all others acting for and on their behalf from infringing the trade mark No.285062; the said mark has been only renewed and is valid and subsisting; Plaintiff No.1 is the joint proprietor of the trade mark Haldiram Bhujia Wala duly registered under the provisions of Trade and Merchandise Marks Act, 1958; Plaintiff No.2 is also the joint owner of the trade mark in question, therefore, he has been joined as co-plaintiff. In para 7 of the plaint, the immediate cause for filing the suit against defendant was stated as under:-
"The defendant No.1 M/s.Haldiram Bhujiawala 2284, Arya Samaj Road, Karol Bagh, New Delhi, a newly consumption has been constituted/formed by defendant No.2 Mr.Ashok Kumar, son of Smt.Kamla Devi. The true constitution of the defendants is not known to the plaintiff. The defendants are called upon to disclose the true constitution of their firm before the Hon'ble Court in the present action. The plaintiff reserves his right to implead the other partners and additional defendants as parties to the present proceedings on discovery of the correct constitution of the defendants firm."
5. It was further alleged that the cause of action for filing the suit had arisen in the first week of December, 1991 when the plaintiff came to know that a shop under the name of Haldiram Bhujia wala was being opened at Arya Samaj Road, Karol Bagh, New Delhi at the instance of or on behalf of defendant No.2, in violation of the common law and contractual rights of the plaintiffs. It was alleged that the cause of action is a continuous one and continues on day to day basis till the defendants are permanently restrained by permanent injunction. It was stated that the court has territorial jurisdiction to entertain and try the suit as the cause of action had arisen at Delhi and the defendants were residing and working for gain within the territorial jurisdiction of the Courts at Delhi.
6. On the same day on which the suit was instituted Shri Mahinder Pal, Additional District Judge, Delhi passed an ex parte order of injunction restraining Haldiram Bhujiawala, 2284, Arya Samaj Road, Karol Bagh, New Delhi and Shri Ashok Kumar C/o Haldiram bhujiawala, 2284, Arya Samaj Road, Karol Bagh, New Delhi from using the trade mark/trade name "Haldiram Bhujia Wala". The defendants were called upon to file their objections, if any, by 7.1.1992. The order served upon the said defendants 1 and 2 reads:-
"To.
1. Haldiram Bhujiawala, 2284, Arya Samaj Road.
Karol Bagh, New Delhi.
2. Shri Ashok Kumar Haldiram Bhujiawala.
2284, Arya Samaj Road, Karol Bagh, New Delhi.
WHEREAS, in the above noted suit an application under order 29 rule 1 and 2 CPC filed by the plaintiff, (copy attached).
Meanwhile, the defendants i.e. both of your shall stand restrained from using the trade mark/trade name "HALDIRAM BHUJIA WALA" and/or any other name/mark as may be identical or deceptively similar to the plaintiff's trade mark/name "HALDIRAM BHUJIA WALA".
OBJECTIONS, if any, be filed on or before the date fixed i.e. 7.1.1997.
Given under my hand and the sale of the court on this 10th day of December, 1991."
7. The plaintiffs sought amendment to the plaint by incorporating claim for recovery of damages to the tune of Rs.6,00,000/-, which was allowed. Because of this amendment, the plaint was ordered to be returned for begin presentation in an appropriate court having pecuniary jurisdiction to try the suit. Amended plaint was thus presented in this Court on its original side on 17.2.1992. The application for temporary injunction was ultimately decided by learned Single Judge on 12.5.1999 thereby restraining the aforementioned two defendants by the following order:-
"Defendants, their agents/representatives/servants or successors in interest are hereby restrained by means of interim injunction from using the trade name and/or trade mark "Haldiram Bhujiawala" with or without logo, as registered vide registration No.285062 of any other trade mark identical or deceptively similar thereto in India except the state of West Bengal;
2. The defendant shall submit within two months, statement of accounts showing the details of the sales made by them in Delhi since 10.12.1991 using this trade name and/or trade mark verifying its correctness on affidavit;
3. The defendants shall make discovery on affidavit within one month of all the documents, account books, papers etc. relating to such business since 10.12.1991 and shall file an undertaking that they shall not destroy or part with such documents till further orders of this court; and
4. They shall make available for inspection by the plaintiffs all such documents, account books, papers, etc. pertaining to the said business, if so required."
8. Appeal [FAO(OS) No.155/99] against the aforementioned order dated 12.5.1999 preferred by the defendants was admitted for hearing but the application praying for stay of the operation of the order was dismissed on 25.5.1999 by the Division Bench. The appeal is still pending consideration.
9. On 8.9.1999 an application was filed by the plaintiff (CCP.82/99) complaining violation of the order dated 12.5.1999 by defendants 1 and 2 in which it was prayed that the defendants be punished for being guilty of having committed Contempt of Court and their properties be attached and they be detained in civil prison in accordance with the provisions of Order 39 Rule 2A and Section 12 of the Contempt of Courts Act, 1971. This application was taken up for consideration on 16.7.1999 on which date learned counsel for defendants 1 and 2 stated before the Court that the trade mark "Haldiram Bhujia Wala" was not being used by the defendants since 12.7.1999 and till further orders the defendants will not use the same. An undertaking was given by the defendants that they will not display any board at their shop, the boards will be removed and if any of the agents of the defendant are using the board they (defendants) will also immediately inform them not to use the same. The application was adjourned to enable the defendants to file their reply to the application, which is still pending consideration. The order passed on 16.7.1999 reads:-
"16.07.1999 Present: Mr.Amarjeet Singh with Mr.Mohinder Rana for the petitioner.
Mr.Mukul Rotagi, Sr.Advocate with Mr.R.K.Aggarwal for the respondent.
Respondent is present in person.CCP.82/99
Learned counsel for the respondent states that the use of the trade mark Haldiram Bhujiawala is not being used by the respondent since 12.7.1999 and till further order he will not use the same. He further states that by now the containers/cartons have also been changed to Rameshwaran and they will also not display any board at the shop, that the boards will be removed wheresoever they may be available in Delhi and if any of the agents of the defendant are using this board they will immediately inform them not to use the same.
Notice of this petition is given to the respondent. Reply, if any, be filed within two weeks. Rejoinder within two weeks thereafter.
Be listed on 13th September, 1999."
10. Defendants 1 and 2 also filed an application under Order 7 Rule 11 C.P.C. praying for rejection of the plaint on the ground that plaintiff No.1 M/s.Anand Kumar Deepak Kumar was an unregistered partnership firm. Therefore, suit was barred under Section 69(2) of the Indian Partnership Act, 1932. The said application (IA.5996/99) was dismissed on 2.11.1999 by learned Single Judge. Appeal [FAO(OS) 365/99) against the said order was dismissed by Division Bench in liming on 30.11.1999. Defendants preferred further appeal to Supreme Court [CS.1786/2000 arising out of SLP (C) No.1048/2000], which was dismissed on 28.2.2000.
11. On 2.5.2000 an application (CCP.55/2000) was filed by the plaintiffs under Order 39 Rule 2A read with Section 151 CPC and Section 12 of the Contempt of Courts Act, 1971 read with Order 39 Rules 1 and 2 CPC. Filing of this application and order passed therein has led to the appellants in filing these appeals. The memorandum of parties appended to this application, in addition to the names of original defendants 1 and 2, also included 5 more names, who are not so shown to be as defendants in the suit. The plaintiffs also gave an additional address of defendant No.2 as follows:-
"2. Shri Ashok Kumar Aggarwal S/o Late Sh.Rameshwar Lal Aggarwal 2284, Arya Samaj Road, Karol Bagh, New Delhi.
ALSO AT:
3-1, BROJODULAL STREET, CALCUTTA700.006"
12. In addition to defendants 1 and 2, who were arrayed as respondents 1 and 2 in the said application in which defendant No.2 was also shown at 3A, but with a new address at Brojodulal Street, Calcutta, the other respondents imp leaded are Prabhu Shankar Aggarwal Mahesh Kumar Aggarwal Smt.Kamla Devi Aggarwal Sharad Aggarwal and M/s.Pratik Marketing. Out of the 5 newly added names the first three have preferred these three separate appeals.
13. The plaintiffs alleged in the application that on 12.5.1999 ad-interim injunction had been granted against he defendants, therefore, Smt.Kamla Devi and late Shri Rameshwar Lal and also the legal heirs, persons, firms companies claiming title through them were also held to be bound by the findings give by learned Single Judge of this Court while passing the interim order of injunction dated 12.5.1999. It was further alleged that despite injunction order, the defendants as well as Smt.Kamla Devi and legal heirs of Shri Rameshwar Lal and persons claiming title through them have willfully continued using trade mark/trade name Haldiram Bhujiawala with Logo HRB and that "on account of the defendants" continuous contemptuous and contumacious acts, the plaintiffs were constrained to move an application (CCP.82/99) in which an undertaking was given by the defendants. In para 7 of the application, the plaintiffs alleged that despite orders dated 16.7.1999 passed in CCP.82/99 and despite the "undertaking given by the defendant that they will not use the trade mark Haldiram Bhujiawala till further orders, the said defendants and the said persons have contumaciously, willfully and in flagrant disobedience and breach of orders and undertaking dated 16.7.1999 inserted an advertisement in newspapers. Plaintiffs further alleged that Shri Ashok Kumar Aggarwal claiming title through Smt.Kamla Devi and/or late Shri Rameshwar Lal Aggarwal and others had been restrained by the court vide order dated 12.5.1999 from using the trade mark. Thus despite order of injunction and undertaking given by the defendants, order was still being flouted. The plaintiffs further alleged that all defendants have knowledge of the interim orders dated 12.5.1999 and 16.7.1990. Their counsel were very much aware of the injunction order. The defendants have abetted in the commission of violating the orders passed by this Court by inserting and publication of advertisement, therefore, they should not be allowed to reap the benefits of their own acts and were liable to be proceeded with for having violated orders of the Court and were liable to be injuncted for restoring the status quo as on 12.5.1999.
14. The new application came up before learned Single Judge on 8.5.2000. On that date notice of this application was directed to be issued, returnable on 12.7.2000 and simultaneously an ex parte order was passed as aforementioned. The order reads:-
"8.5.2000 Present: Ms.Kamaldeep for the applicants.
Mr.Mahinder Rana for the respondent.CCP.55/2000 in S.635/92
Issue notice returnable on 12th July, 2000.
Counsel for the petitioner has submitted that this is the second contempt petition which the petitioners have been constrained to file. Despite undertakings given by the alleged contemners 1 and 2, those undertakings are being violated. Since defendants 3 to 7 were not parties in the previous proceedings, I am satisfied that in the interest of justice they should be injuncted, which has now been firmly established. Learned counsel for the petitioners submits that the petition filed by defendant 1 and 2 has also been dismissed by order dated 20th February, 2000.
Accordingly, till the next date of hearing the defendants are restrained from carrying on any business of salted preparation like Bhujia, paper and sweets under the trade name of 'HALDIRAM BHUJIAWALA' in any territory in India except in the territory of West Bengal.
Case to be listed before Joint Registrar on 12.7.2001.
Notice dusty also May 8, 2000 VIKRAMJIT SEN, J."
15. The aforementioned order is challenged in these three appeals. Shri Prabhu Shankar Aggarwal and Shared Aggarwal minor son of Ravi Shankar Aggarwal have challenged the order dated 8.5.2000 in FAO(OS) No.142/2000. Smt.Kamla Devi Aggarwal has challenged the impugned order in FAO(OS) No.143/2000 and Shri Mahesh Kumar Aggarwal has challenged the impugned order in FAO(OS) No.153/2000.
16. Needless to add that the appellants without showing cause before learned Single Judge and without filing any reply before learned Single Judge preferred these three appeals separately questioning the legality and validity of the order. When appeals [FAO(OS) Nos.142 and 143 of 2000] came up before us for preliminary hearing on 22.5.2000, appeal was admitted for hearing an on the interim application prima facie finding that the said appellants were not party to the suit and had also not been imp leaded as such by any of the subsequent order of the Court, operation of the impugned order in so far as it pertain to the appellants was directed to be stayed till further orders. Similar order was passed on 25.5.2000 in FAO(OS). 153/2000. This interim order passed by us was challenged by the plaintiff/respondent by filing S.L.P. but the Supreme Court dismissed the appeal with the observation that since appeals were coming up for hearing, no interference was called for in the interim order.
17. When the appeals were taken up for hearing, we clearly informed learned counsels for the parties that they should confine their arguments only to the limited extent to enable us to examine the legality and validity of the impugned order passed ex parte on 8.5.2000 and not on merits. Despite that learned counsels or the parties have put forth their submissions as if we were hearing the appeals on merits of the application filed by the plaintiffs and on various other allied questions. We again made it clear that we are confining the hearing and will consider only those submission, which relate to the basic question that whether the learned Single Judge on 8.5.2000 was justified in passing the ex parte order of injunction restraining the appellants. The other questions accordingly are not being dealt with by us in this appeal since those will be open to the parties to be raised by them before learned Single Judge as and when the appellants will show cause by filing their replies, pursuant to the notice, which had been issued to them. Needless to add that till date the appellants have not filed their relies to CCP.55/2000. However, in order to be fair to learned counsels or the parties in breif we will put forth the points raised by them before us.
18. Learned counsels or the plaintiffs/respondent urged that the issues arising before the Court were:-
"(i) Whether the suit against the firm Haldiram bhujiawala, defendant No.11 is really a suit against all the partners who were its partners at the time of accrual of the cause of action i.e. 1.12.91 and/or against members of the Joint Hindu Family constituted by Joint Venture Agreement dated 10.12.1991 confirmed on 12.5.1999 binds the other partners of the firm and or members of the Joint Hindu Family, though not visually or ostensibly parties to the suit?
(ii) Whether a partner is an agent of firm and of the partners by virtue of Section 4 and 18 of the Partnership Act.
(iii) Whether the third parties strangers to the suit can be bound by the injunction order dated 12.5.1999.
(iv) Powers under Articles 215, 225 of the Constitution of India are also available to High Court to undo the wrong besides remedy provided under Rule2A of Order XXXIX for violating/disobedience of its injunction orders.
(v) Whether there is any power/jurisdiction in High Court to compel implementation of the order by issuance of an interim injunction under its inherent powers.
(vi) Whether the Courts have jurisdiction to issue injunction order dated 8.5.2000 in an application under Order 39 Rule 2A C.P.C.
(vii) Whether the appellants are aiders and abettors in the willful disobedience of the injunction order dated 12.5.1999."
19. After elaborating these points, learned counsel for the respondents also tried to draw our attention to various documents on the basis of which it was tried to be show that the firm Haldiram Bhujiwala, Calcutta in Karol Bagh was a Joint Family business of appellants and the defendants in the suit and also the documents and circumstances by which is was tried to be shown that the appellants had notice and knowledge of the injunction order dated 12.5.1999.
20. Similarly, learned counsel for the appellants in their respective submission tried to meet each and every point raised by learned counsel for the plaintiffs/ respondents by making reference to various documents, which were for the first time filed in these appeals and were not before learned Single Judge. Even without the aid of those documents, it was tried to be shown that the plaintiffs have not been able to show or even prima facie establish that Prabhu Shankar was a partner int he newly constituted firm functioning at Karol Bagh or that Mahesh Kumar was partner to the said firm or Kamla Devi had anything to do with Karol Bagh firm. Reference was made to Section 24 of the Trade Marks Act, 1958 on behalf of the respondents, to which also learned counsel for the appellant by making reference to Section 63 of the English Act and paragraph 118 of Halsbury's Laws of England Fourth Edition submitted that rights of appellant in the trade mark of which they are the joint proprietors is an individual right to use the trade mark "Haldiram Bhujiawala" and joint venture agreement between the parties, which was sought to be relied upon by plaintiff/respondent clause 8 whereof makes that position clear. Therefore, it was urged that Courts had no jurisdiction to pass any order of injunction against the appellants, who were not parties to the suit since they had not been imp leaded as such in the suit. Learned counsel for the appellants also urged that:-
"(i) it is clear on a plain reading of the plaint and the body of the judgment that the injunction order related to Ashok Kumar and his newly constituted firm at Karol Bagh from doing business at Karol Bagh or at best anywhere else in India except West Bengal. It is abundantly clear that the injunction order did not relate to the old firm of Haldiram Bhujiawala at Calcutta of which Prabhu Shankar the appellant was a partner. Prabhu Shankar had been carrying on business not only in Calcutta but all over India for the last approximately 44 years under the trade name of Haldiram Bhujiawala.
(ii) The plaintiffs after a period of ten years from the date of institution of the suit with oblique motive filed the contempt application against the appellants by the ingenuous device of impleading them under the firm Haldiram Bhujiawala and by describing "also at" 3A Brojo Dalal Street, Calcutta-700062.
(iii) The application under Article 215 of the Constitution of India or Section 151 of the Code of Civil Procedure or Section 94(c) and (e) of the Code of Civil Procedure was not maintainable.
(iv). The injunction in favor of the plaintiff affected only the private rights of the parties under Order 39 Rules 1 and 2 of the Code of Civil Procedure. The remedy for breach of such an injunction is clearly provided under Order 39 Rule 2A can be invoked only against the parties to the suit and their servants and agents. It cannot be invoked against he person who was not a party to the suit or who was not acting as a servant or an agent of a party in a suit even if such a person had knowledge of the injunction.
(v) Article 215 of the Constitution of India, Section 151 of CPC and Section 94(c) and (e) CPC are all provisions relating to the inherent powers of the Court to prevent the abuse of the process of Court and the obstruction of the administration of the justice. These provisions can be invoked only under (a) exceptional circumstances and (b) where no other remedy is available and (c) where the statute has not provided for the redressal of a wrong."
21. As has been noticed above that though learned counsel for the parties tried to argue the appeals as if we were hearing them on the merits of the application (CCP.55/2000) but we are confining ourselves only to the limited question that whether the order passed on 8.5.2000 suffers from any illegality and is liable to be interfered with.
22. Admittedly, the appellants have not been imp leaded as defendants in the suit. Till date they have not been imp leaded as such. But on independent reading of the application filed under Order 39 Rule 2A CPC (CCP.55/2000) and impression is gathered that the appellants are parties to the suit, which would be clear, if reference is made to paras 4 and 8 of the said application, wherein the plaintiffs alleged:-
"4. Smt.Kamla Devi and late Shri Rameshwar Lal and also the legal heirs, persons, firms, companies claiming title through them were also held to be bound by the findings given by Hon'ble High Court of Delhi while passing the interim order of injunction dated 12th May, 1999.
5. XXX XXX XXX
6. XXX XXX XXX
7. XXX XXX XXX
8. That it is pertinent to submit that the defendants have natured into a Joint Venture Agreement purported to be executed on 10.12.1991 pertaining to the Registered Trade Mark No.330375 in Class 30 and the parties to the said Joint Venture Agreement are Prabhu Shankar Aggarwal, Mahesh Kumar Aggarwal, Ashok Kumar Aggarwal, all sone of late Rameshwar Lal Aggarwal and Sharad Aggarwal, minor son of late Ravi Shankar Aggarwal, deceased son of late Shri Rameshwar Lal Aggarwal. The address of all the parties to the said purported Deed of Joint Venture Agreement relates to the ownership and use of the registered trade mark No.330375. It is further submitted that the aforesaid 4 persons according to the defendants became co-owners of the trade mark. The impugned advertisement appearing in Jaipur Edition has been in fact issued by Shri Ashok Kumar Aggarwal, a alleged co-owner of the impugned trade mark No.330375 by inserting his Calcutta address, namely, Haldiram Bhujiawala Pvt. LIMITED (Calcutta). Even otherwise Shri Ashok Kumar Aggarwal being an alleged co-owner of the said trade mark as well as all others claiming title through Smt.Kamla Devi and/or late Shri Rameshwar Lal Aggarwal have been restrained by this Hon'ble Court vide order dated 12.5.1999 from using the trade marl/trade name Haldiram bhujiawala in the entire territory of India except the State of West Bengal and as such has no right, title or interest to issue the said public advertisement or by virtue of which appointing the super distributor for Rajasthan pertaining to the goods of Haldiram Bhujiwala/Haldirams. Besides the above Shri Ashok Kumar Aggarwal being the alleged co-owner of the said trade mark has bound himself and other co-owners of the trade mark HALDIRAM BHUJIAWALA, namely, Prabhu Shankar, Mahesh Kumar, minor son Sharad Aggarwal with his undertakings dated 16.7.1999 made before this Hon'ble Court to the following effect:
"Learned counsel for the respondent state that the use of the trade mark HALDIRAM BHUJIAWALA is not being used by respondent since 12.7.99 and till further order he will not use the same.""
23. Learned Single Judge while passing the impugned order on 8.5.2000 also appears to have proceeded on the assumption as if the appellants had been imp leaded as parties to the suit and that though they were not parties in the previous proceedings but since rights of the plaintiffs had been firmly established, therefore, there was necessity also to restrain them from violating the established rights of the plaintiffs.
24. From the bare reading of the application filed by plaintiff/respondents, it has been tried to be projected that in fact the order of injunction passed on 12.5.1999 by learned Single Judge, while deciding IA.1575/92 is an order of injunction not only against defendants 1 and 2 but also against the appellants, which would be clear from the aforequoted paras 4 and 8 of the application. We may also point out that nowhere in the plaint it has been alleged by the plaintiff/respondents that Ashok Kumar, defendant No.2. is being imp leaded in the suit as a representative of the appellants or of the Firm 'Haldiram Bhujiawala' functioning in Calcutta. No where in the plaint it is alleged by the plaintiffs that defendant No.1 Haldiram Bhujiawala, 2284, Arya Samaj Road, Karol Bagh, New Delhi is a projection of the firm which is functioning at Calcutta. Rather the clear and unequivocal and specific averment made by the plaintiffs in para 7 of the plaint is that defendant No.1 M/s.Haldiram bhujiawala, 2284, Arya Samaj Road, Karol Bagh, New Delhi is a newly constituted firm, which was intending to start its business for the manufacture of sale of edible articles and the said firm has been constituted and formed by Ashok Kumar. It is further alleged that the true constitution of defendant firm is not known to the plaintiffs and upon discovery of true constitution of the firm the plaintiffs reserve their right to implead other partners as additional defendants. The plaintiffs did not imp leaded others as parties to the suit.
25. In case the version of the plaintiffs, as stated in the application under Order 39 Rule 2A C.P.C. is taken at its face value that the order passed on 12.5.1999 and the undertaking given by defendants 1 and 2 on 16.7.1999 is binding on the appellants, who are not parties to the suit, question immediately arises. What was the urgent need or necessity for the plaintiffs to have sought re-enforcement of the same order of injunction against the appellants by making similar prayer in CCP.No.55/2000? Question would also arise that when the learned Single Judge without any notice to them, who even to his knowledge were not parties to the suit, proceeded to pass an ex parte order of injunction? Either the appellants are bound by the order or they are not bound by the order. In case they are bound by the order, there was no need to have passed any separate order. In case they were not bound by the order, the question whether such an order could be passed against them ought to have been considered and examined by learned Single Judge and his mind ought to have been disclosed in the impugned order by stating some ground or reason that why such an order of restraint was necessary and what was the urgency of passing ex parte order, which could not have waited even service of a show cause notice on them.
26. Power, which can be exercised by Courts in granting ex parte order of injunction is contained in Order 39 Rules 1 and 2 CPC and the Supreme Court has in Shiv Kumar Chadha v. Municipal Corporation of Delhi and others in clear terms held that whenever a court considers it necessary in the fats and circumstances of a particular case to pass an order of injunction without notice to the other side, it must record the reasons for doing so and should take into consideration, while passing an order of injunction, all relevant factors including as to how the object of granting injunction itself shall be defeated if an ex parte order is not passed. Supreme Court also emphasised about the statutory requirement of issuing show cause notice or hearing the parties before granting an order of injunction, as contained in Rule 3 of Order 39 C.P.C and observed that the same were still being violated has been added to Rule 3 of Order 39 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. The 39 was highlighted saying:-
"The imperative nature of the proviso has to be urged in the context of Rule 3 of Order 39 of the Code. Before the proviso aforesaid was introduced, Rule 3 said "the court shall in all cases, except where it appears that the object of granting the injunction would be defeated by the delay, before granting an injunction, direct notice of the application for the same to be given to the opposite party". The proviso was introduced to provide a condition, where court proposes to grant an injunction without gibing notice of the application to the opposite party, being of the opinion that the object of granting injunction itself shall be defeated by delay. The condition so introduced is that the court "shall record the reasons" why an ex parte order of injunction was being passed in the facts and circumstances of a particular case. In this background, the requirement for recording the reasons for grant of ex parte injunction, cannot be held to be a mere formality. This 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 under a statute or under the common law, must be informed why instead of following the requirement of Rule 3, the procedure prescribed under the proviso has been followed. 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 an court has to consider briefly these factors in the ex parte order. We are quite conscious of the fact that there are other statutes that contain similar provisions requiring the court or the authority concerned to record reasons before exercising power vested in them. In respect of some of such provisions it has been held that they are required to be complied with but non-compliance therewith will not vitiate the order so passed. But same cannot be said in respect of the proviso to Rule 3 of Order 39. The Parliament has prescribed a particular procedure for passing of an order of injunction without notice to the other side, under exceptional circumstances. Such ex parte orders have far-reaching effect, as such a condition has been imposed that court must record reasons before passing such order. If it is held that the compliance with the proviso aforesaid is 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. Proviso to Rule 3 of Order 39 of the Code attracts the principle, that if a statute requires a thing to be done in a particular manner, it should be done in the manner or not all. This principle was approved and accepted in well-known cases of Taylor v. Taylor ((1875) 1 Ch D 426: 45 LJ Ch 373) and Nazir Ahmed v. Emperor This Court has also expressed the same view in respect of procedural requirement of the bombay Tenancy and Agricultural Lands Act in the case of Ramchandra Keshav Adke v. Govind Joti Chavare ."
27. In the impugned order no reasons are assigned as to how the object of granting injunction would have been defeated if ex parte order was not passed. In Shiv Kumar Chanda's case (supra) it was 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. It was emphasised that the Courts have to be more cautious when the said power is being exercised without notice of hearing to the other party who is to be affected by the order so passed. Such ex parte orders have far reaching affect and as such a statutory condition has been imposed by the proviso to Rule 3 of Order 39 that Courts must record reasons before passing such orders. This is imperative nature and not optional. The Supreme Court in Shiv Kumar Chanda's case (supra) also issued directions about the manner in which an application for interim injunction should be considered and disposed of saying:-
"(i) The Court should first direct the plaintiff to serve a copy of the application with a copy of the plaint along with relevant documents on the counsel for the Corporation and the order should be passed only after hearing the parties.
(ii) If the circumstances of a case so warrant and where the court is of the opinion, that the object of granting the injunction would be defeated by delay, the court should record reasons for its opinion as required by proviso to Rule 3 of Order 39 of the Code, before passing an order for injunction. The court must direct that such order shall operate only for a period of two weeks, during which notice along with copy of the application, plaint and relevant documents should be served on the competent authority or the counsel for the Corporation. Affidavit of service of notice should be filed as provided by proviso to Rule 3 of Order 39 aforesaid. If the Corporation has entered appearance, any such ex parte order of injunction should be extended only after hearing the counsel for the Corporation.
(iii) While passing an ex parte order of injunction the court shall direct the plaintiff to give an undertaking that he will not make any further construction upon the premises till the application for injunction is finally heard and disposed of."
28. Before us learned counsel for the parties made reference to various proceedings of the Trade Mark Registry and of the orders passed in appeal in those proceedings or of proceedings pending or decided before various Courts, in order to highlight their respective submissions. On behalf of the plaintiffs, it was tried to be urged that the appellants are bound by the impugned orders whereas on behalf of the appellants it was tried to be urged that the appellants not being parties to the suit are not bound by the orders. Neither they are claiming through the defendants nor are they agents of the defendants. They are neither abettors nor being added in the alleged act for commission of violation of the orders passed by the Court.
29. On behalf of learned counsel for the parties reliance was placed on a number of decisions in support of their submissions. One of the decisions relied upon being a Division Bench judgment of this Court in Dr.Bimal Chandra Sen, Delhi v. Mrs.Kamla Mathur, Delhi and another 1983 Cr.LJ 495 about maintainability of the application filed by the plaintiff and that whether in such application proceedings can or cannot be initiated against the appellant or that similar alleged violation would amount to civil or criminal contempt or whether it will be only an application under Order 39 Rule 2A, which would be maintainable and not an application for invoking Court's jurisdiction under Article 215 of the Constitution of India.
30. Reliance was also placed on Full Bench decision of Madras High Court in Vidya Charan Shukla v. Tamil Nadu Olympic Association and another about powers of the Court to pass interim orders during contempt of courts proceedings and of taking action against parties, who are not parties to the suit, but are aider and abettor.
31. Not only that the learned counsel for the parties tried to rely upon material, which was filed for the first time in appeal before us and not before learned Single Judge but also such further documents, which were filed during course of arguments. Even after conclusion of arguments copies of orders passed subsequent to the passing of the impugned order have been filed in order to support their respective cases on merits. It will neither be procedurally correct nor appropriate for an appeal Court to decide the issues on merits not raised before learned Single Judge. Appeal court is expected to and as far as possible should confine only to such of the matters, which had arisen before the court of first instance or before the Court whose order is under challenge and not those, which are not dealt with or decided by such court. Before learned Single Judge the appellants have yet to put in appearance and submit their case. Learned Single Judge has had no benefit of their side of the case. Therefore, while deciding the appeal we are justified in going only into those aspects, which were projected before us on behalf of the parties as regards propriety of learned Single Judge in issuing notice to the respondents. Maintainability of the application and other questions cannot be decided at this stage.
32. In our view, the order passed on 8/5/2000 is not in consohance with the law laid down by the Supreme Court in Shiv Kumar Chadha's case (supra). In case even according to the plaintiffs own showing the appellants were bound by the order of injunction, there was no need to have passed any order of injunction and for that reason learned Single Judge ought not to have passed any interim order against the appellants without notice to them and without hearing them. In case learned Single Judge was of the view that without notice the appellants deserved to be restrained, in that case also it was necessary for learned Single Judge to have recorded his reasons, which learned Single Judge has not done, which vitiates the impugned order.
33. Consequently, the appeals are allowed The impugned order in so far as it has granted ex parte order of injunction is set aside with direction to the learned Single Judge to hear and dispose of the application on merits after allowing the defendants/appellants to file their reply. The appellants will file their respective replies on or before 12.10.2001 where after rejoinder, if any, may be be filed by the plaintiffs respondents within a period of two weeks. Learned Single Judge will thereafter proceed to hear and decide the application on merits as expeditiously as possible. Needless to add that we should not be understood as having expressed our view either way or on merits of the case. Parties are directed to appear before learned Single Judge on 6.11.2001.