Gujarat High Court
Jitesh Kumar S/O Omprakash Maheshwary ... vs Babushah Ibrahimsha Juneja on 9 January, 2025
NEUTRAL CITATION
C/AO/256/2024 ORDER DATED: 09/01/2025
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IN THE HIGH Court OF GUJARAT AT AHMEDABAD
R/APPEAL FROM ORDER NO. 256 of 2024
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2024
In R/APPEAL FROM ORDER NO. 256 of 2024
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JITESH KUMAR S/O OMPRAKASH MAHESHWARY CEO OF KAKA
PHARMACY
Versus
BABUSHAH IBRAHIMSHA JUNEJA & ANR.
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Appearance:
MR BHUNESH C RUPERA(3896) for the Appellant(s) No. 1
MR. DIGVIJAY SINGH BISHT(14224) for the Appellant(s) No. 1
MR DARSHANKUMAR R KABRA(11246) for the Respondent(s) No. 2
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CORAM:HONOURABLE MR. JUSTICE MAULIK J.SHELAT
Date : 09/01/2025
ORAL ORDER
1. Heard learned Senior Counsel Mr. Harshit S. Tolia with Mr. Digvijay Singh Bisht, learned advocate and Mr.Bhunesh C. Rupera, learned advocate for the appellant and Mr.Manav A. Mehta, learned advocate with Mr. Darshankumar R. Kabra appearing for the respondent no.2 on caveat.
2. The present appeal is filed under Order XLIII Rule 1(r) of the Civil Procedure Code, 1908 (hereinafter referred to as "the Code, 1908") by the original defendant against the judgment Page 1 of 18 Uploaded by MOHD MONIS(HC01900) on Sat Jan 18 2025 Downloaded on : Fri Jan 31 23:46:40 IST 2025 NEUTRAL CITATION C/AO/256/2024 ORDER DATED: 09/01/2025 undefined and order dated 10.12.2024 passed by the 3 rd Additional District Judge, Ahmedabad (Rural), in Trademark Suit No. 1 of 2023.
3. The parties will be referred to as per their original position in the suit.
4. Considering the submissions made by learned advocates for the respective parties and after hearing them, the appeal is admitted. Learned advocate Mr.Darshankumar R. Kabra waives service of notice on behalf of the respondent/s. With the consent of the parties, the matter is taken up for final hearing today itself.
5. The short facts of the present appeal appear to be as under:-
5.1 The respondents herein are the original plaintiffs, who have filed Trademark Suit No. 1 of 2023 against the appellants before the 3rd Additional District Judge, Ahmedabad (Rural), Ahmedabad, seeking relief for infringement of copyright under Section 55 of the Copyright Act, 1957, and passing-off action Page 2 of 18 Uploaded by MOHD MONIS(HC01900) on Sat Jan 18 2025 Downloaded on : Fri Jan 31 23:46:40 IST 2025 NEUTRAL CITATION C/AO/256/2024 ORDER DATED: 09/01/2025 undefined read with Section 151 of the Code, 1908. The plaintiffs appear to have filed an interim injunction application below Exhibit 5 in the suit, which was filed under Order XXXIX Rule 1 and 2 of the Code, 1908, wherein they prayed for the following reliefs "(A) The Hon'ble Court be pleased to restrain the defendant their agents, servants, dealers, representative and all other persons on their behalf by order of temporary injunction for manufacturing and marketing their product under the artwork / dress dress of the plaintiffs label which is almost identical and/or deceptively similar of the plaintiffs registered Copyright which is same / similar artistic work of the plaintiffs work in respect of Ayurvedic Medicinal Oils goods which is deceptively similar to the plaintiffs trademark "RAJ KHUSHBU" which amounts to infringement of copyright Plaintiffs suit product;
(B) That pending hearing and final disposal of the suit, defendant their agents, servants, dealers, representative and all other persons on their behalf by order of temporary injunction for manufacturing and marketing their product under the artwork/dress dress of the Plaintiffs label which is almost identical and/or deceptively similar of the plaintiffs registered Copyright which is same / similar artistic work of the plaintiffs work in respect of Ayurvedic Medicinal Oils goods which amounts to Passing Off of trademark of plaintiffs suit product;
(C) The Hon'ble Court be pleased to grant the Ex-parte injunction as per the Prayer A and B;
(D) The defendant be temporary restrained from reproducing their product under the artistic work having identical style, get-up, Page 3 of 18 Uploaded by MOHD MONIS(HC01900) on Sat Jan 18 2025 Downloaded on : Fri Jan 31 23:46:40 IST 2025 NEUTRAL CITATION C/AO/256/2024 ORDER DATED: 09/01/2025 undefined layout, design, placement of features and colour combination as that of the Plaintiffs;
(E) For an order of costs of these proceedings. (F) For any other relief which this Hon'ble Court deems fit and proper in the facts and circumstances of the case, may also granted in favour of the Plaintiffs and against the defendant, in the interest of justice."
5.2 After service of notice upon the defendant, the defendant filed an affidavit in reply-cum-written statement vide Exhibit 13 and written arguments at Exhibit 21. 5.3 The plaintiffs also filed a rejoinder affidavit at Exhibit
15. The necessary documents in support of their case were duly submitted by the respective parties to the suit, which can be referred to as under:-
Documents filed by the plaintiff:
Sr.No. Particulars of documents Mark
1. Copy of certificate of MSME. 3/1
2. Copy of Trademark Registration Certificate. 3/2
3. Copy of Plaintiff's renewal certificate. 3/3
4. Copy of Copyright Registration Certificate. 3/4
5. Copy of G.S.T. Certificate. 3/5
6. Copy of Product Test Report issued by Gujarat 3/6
Laboratory.
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NEUTRAL CITATION
C/AO/256/2024 ORDER DATED: 09/01/2025
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7. Copy of Certificate of Food and Drugs Control 3/7
Administration issued by Joint Commissioner (Drugs).
8. Copy of Certificate of TIN Number. 3/8
9. Copy of ISO 9001: 2015 Certification of plaintiff. 3/9 10 Copy of plaintiff's label. 3/10
11. Copy of defendant's infringing label. 3/11 12 Copy of power of attorney. 3/12
13. Copy of sales invoice (colly). 3/13
14. Copy of defendant's trademark application 3/14 number 5444391 in class 3 dated 11/05/2022.
15. Copy of examination report in application 3/15 number 5444391 dated 05/08/2022 filed by the defendant.
Documents filed by the defendant
Sr.No. Particulars of documents Mark
1. Photo of Drug Licence of the defendant. 14/1
2. Downloaded copy of the product has been selling 14/2 by the plaintiffs.
3. Downloaded copy of the affidavit filed by the 14/3 plaintiff before the trademark registry for the trademark application no. 2302890.
4. Downloaded copy of the status of the Trademark 14/4 Application No. 2855550 filed by the plaintiffs.
5. Downloaded copy of the status of the Trademark 14/5 Application no. 3008333 filed by the plaintiffs.
6. Downloaded Copy of the affidavit filed by the 14/6 plaintiff before the trademark registry for the trademark application no. 3008333.
7. Downloaded copy of the status of the Trademark 14/7 Application No. 5266348 filed by the plaintiffs.
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plaintiff before the trademark registry for the Trademark Application No. 5585576.
5.4 After hearing the contesting parties to the suit, who relied upon several authorities in support of their respective arguments, the Trial Court, vide its impugned judgment and order dated 10.12.2024 partly allowed the interim injunction application of the plaintiffs below Exhibit 5 in terms of Para 25(a), (b), and (d) of such application. It was observed in the impugned order that such an order would remain in operation till the final disposal of the suit.
6. Being aggrieved and dissatisfied with the impugned judgment dated 10.12.2024 passed by the 3 rd Additional District Judge, Ahmedabad (Rural), Ahmedabad, the present appeal from order is preferred by the original defendant. SUBMISSION OF THE APPELLANT/DEFENDANT
7. At the outset, learned Senior Counsel Mr.Harshit Tolia submitted that the impugned order passed by the Trial Court is a non-speaking order as there are no reasons assigned by the Page 6 of 18 Uploaded by MOHD MONIS(HC01900) on Sat Jan 18 2025 Downloaded on : Fri Jan 31 23:46:40 IST 2025 NEUTRAL CITATION C/AO/256/2024 ORDER DATED: 09/01/2025 undefined Trial Court while allowing the aforesaid prayers made by the plaintiffs in its impugned application filed below Exhibit 5. He would further submit that the Trial Court recorded the submissions made by the learned advocates appearing for the respective parties and cited/referred to the authorities cited by the respective advocates in support of their arguments. However, there is no appreciation of any of the submissions made by the parties, as reflected from a reading of the impugned order.
7.1 Learned Senior Counsel appearing for the appellant would further submit that merely reproducing the words of a section of a statute book i.e., "marks are apparently deceptively similar in nature" and that the plaintiff is the prior user of the mark would not tantamount to reasoning, that too in a trademark suit. He would submit that it was the duty of the Trial Court to pass a reasoned order by appreciating the submissions canvassed before it and to have considered the authorities cited by the respective parties, including the Page 7 of 18 Uploaded by MOHD MONIS(HC01900) on Sat Jan 18 2025 Downloaded on : Fri Jan 31 23:46:40 IST 2025 NEUTRAL CITATION C/AO/256/2024 ORDER DATED: 09/01/2025 undefined defendant, against whom the impugned order has been passed. 7.2 He has requested this Court that at this stage, without further entering into the merits and controversy involved in the suit, only on the ground that the impugned order is a non- speaking order and therefore, the impugned order may be quashed and set aside and the matter may be remanded to the Trial Court for its fresh adjudication after giving an opportunity of hearing to the respective parties and allowing the parties to tender additional documents, if any, in support of their claims.
7.3 Thus, he requested this Court to allow the present appeal by quashing and setting aside the impugned order and remand the matter back to the concerned Trial Court. SUBMISSION OF THE RESPONDENT/S /PLAINTIFF/S
8. Per contra, learned advocate Mr. Manav A. Mehta, appearing with Mr.Kabra would submit that the Trial Court, after considering the submissions made by the respective parties and appreciating the controversy at hand, has passed Page 8 of 18 Uploaded by MOHD MONIS(HC01900) on Sat Jan 18 2025 Downloaded on : Fri Jan 31 23:46:40 IST 2025 NEUTRAL CITATION C/AO/256/2024 ORDER DATED: 09/01/2025 undefined an appropriate order in favour of the plaintiff, which may not be interfered with by this Court while exercising its power under Order XLIII Rule 1 of the Code, 1908. 8.1 He would further submit that the plaintiffs have a good prima facie case, and the balance of convenience is also in their favour. He argued that if the stay granted in their favour is not confirmed, they will suffer irreparable loss by losing their reputation in the market. Thus, he requested this court not to accede to the request made by the learned Senior Counsel appearing for the appellant for remanding the matter back to the trial court. According to him, no error is committed by the Trial Court while granting Exh.5 application. POINTS OF DETERMINATION
9. The following points are determined for consideration of the controversy involved in the present appeal:-
1. Whether, in the facts and circumstances of the case, the impugned order passed by the Trial Court while granting the injunction application filed by the plaintiff below Exhibit 5 is a non-speaking order or not?Page 9 of 18 Uploaded by MOHD MONIS(HC01900) on Sat Jan 18 2025 Downloaded on : Fri Jan 31 23:46:40 IST 2025
NEUTRAL CITATION C/AO/256/2024 ORDER DATED: 09/01/2025 undefined
2. If yes, whether, in the facts and circumstances of the case, the matter requires to be remanded back to the Trial Court or not?
ANALYSIS OF THE SUBMISSIONS
10. Prima facie, after going through the aforesaid observation of Trial Court, I am in agreement with the submissions of learned senior counsel Mr. Tolia that except observing that marks challenged, are apparently deceptively similar in nature and plaintiff being prior user of mark, there is no other appreciation of submission. Normally, such observation got made by Trial Court after analyzing the facts, submission and applicability of provisions of law and the decisions cited, which is apparently missing in the impugned order.
11. As stated hereinabove, this Court, after going through the impugned order, would gather the fact that there is no independent appreciation of evidence and oral submissions of the parties by the Trial Court in its impugned order. The reasons are not assigned while granting relief in favour of the plaintiff by allowing its impugned application filed below Page 10 of 18 Uploaded by MOHD MONIS(HC01900) on Sat Jan 18 2025 Downloaded on : Fri Jan 31 23:46:40 IST 2025 NEUTRAL CITATION C/AO/256/2024 ORDER DATED: 09/01/2025 undefined Exhibit 5. It is true that the Trial Court has recorded submissions made by the respective parties and also the cited decisions, which are so referred by the respective parties during the course of arguments. However, unfortunately, there is no appreciation of submissions and applicability/non- applicability of citations referred to in the impugned order by the Trial Court while allowing the application.
12. It is a well-settled legal position of law that a judicial order, which is passed by a trained judicial mind, must assign reasons while passing such an order. It is now a well-settled legal position of law that reasons are the heart of any order, and if they are missing, then corrective measures are required to be taken by the appellate authority to cure such an inherent mistake committed by the Trial Court while adjudicating the dispute between the parties.
13. At this stage, we remind ourselves that passing any order that too by judicial person without assigning reasons are antithesis to justice delivery system. It is apposite to refer and Page 11 of 18 Uploaded by MOHD MONIS(HC01900) on Sat Jan 18 2025 Downloaded on : Fri Jan 31 23:46:40 IST 2025 NEUTRAL CITATION C/AO/256/2024 ORDER DATED: 09/01/2025 undefined reply upon decision of the Honourable Apex Court of India in a case of UPSRTC V/S Jagdish Prasad Gupta reported in 2009 (12) SCC 609, observed as under:-
"[8] Reasons introduce clarity in an order. On plainest considera- tion of justice, the High Court ought to have set forth its reasons, howsoever brief, in its order indicative of an application of its mind, all the more when its order is amenable to further avenue of challenge. The absence of reasons has rendered the High Court s judgment not sustainable.
[9] Even in respect of administrative orders Lord Denning M.R. in Breen v. Amalgamated Engineering Union 1971 (1) All E.R. 1148 observed "The giving of reasons is one of the fundamentals of good administration". In Alexander Machinery (Dudley) Ltd. v. Crabtree 1974 LCR 120 it was observed: "Failure to give reasons amounts to denial of justice. Reasons are live links between the mind of the decision taker to the controversy in question and the decision or conclusion arrived at". Reasons substitute subjectivity by objectiv- ity. The emphasis on recording reasons is that if the decision re- veals the "inscrutable face of the sphinx", it can, by its silence, render it virtually impossible for the Courts to perform their appel- late function or exercise the power of judicial review in adjudging the validity of the decision. Right to reason is an indispensable part of a sound judicial system, reasons at least sufficient to indicate an application of mind to the matter before Court. Another rationale is that the affected party can know why the decision has gone against him. One of the salutary requirements of natural justice is spelling out reasons for the order made, in other words, a speaking out. The "inscrutable face of a sphinx" is ordinarily incongruous with a judicial or quasi-judicial performance.
[10] This Court in State of Orissa v. Dhaniram Luhar has while re- iterating the view expressed in the earlier cases for the past two Page 12 of 18 Uploaded by MOHD MONIS(HC01900) on Sat Jan 18 2025 Downloaded on : Fri Jan 31 23:46:40 IST 2025 NEUTRAL CITATION C/AO/256/2024 ORDER DATED: 09/01/2025 undefined decades emphasised the necessity, duty and obligation of the High Court to record reasons in disposing of such cases. The hallmark of a judgment/order and exercise of judicial power by a judicial fo- rum is to disclose the reasons for its decision and giving of reasons has been always insisted upon as one of the fundamentals of sound administration justice- delivery system, to make known that there had been proper and due application of mind to the issue before the Court and also as an essential requisite of principles of natural justice. Any judicial power has to be judiciously exercised and the mere fact that discretion is vested with the court/forum to exercise the same either way does not constitute any license to exercise it at whims or fancies and arbitrarily as used to be conveyed by the well-known saying: "varying according to the Chancellor s foot". Arbitrariness has been always held to be the anathema of ju- dicial exercise of any power, all the more so when such orders are amenable to challenge further before higher forums. Such ritualistic observations and summary disposal which has the effect of, at times, cannot be said to be a proper and judicial manner of dis- posing of judiciously the claim before the courts. The giving of reasons for a decision is an essential attribute of judicial and judi- cious disposal of a matter before courts, and which is the only in- dication to know about the manner and quality of exercise under- taken, as also the fact that the court concerned had really applied its mind."
Emphasis supplied."
14. When this Court, after minutely going through the impugned order, wherein prima facie this Court would find that there is no independent appreciation of evidence and submissions made by the parties by the Trial Court and reasons are missing from the impugned orders. This Court Page 13 of 18 Uploaded by MOHD MONIS(HC01900) on Sat Jan 18 2025 Downloaded on : Fri Jan 31 23:46:40 IST 2025 NEUTRAL CITATION C/AO/256/2024 ORDER DATED: 09/01/2025 undefined normally would not like to quote the impugned order passed by the Trial Court in its judgment. However, to appreciate the aforesaid aspect and the submissions made by learned senior counsel appearing for the appellant, a portion of the impugned order, whereby findings in favour of the plaintiff have been recorded by the Trial Court in its impugned order, is required to be reproduced hereinbelow, which reads as under:
"I have perused the submissions made by the Ld. Advocate for the parties and considering the prima facie case on record the Marks that are challenged are apparently deceptively similar in nature and the plaintiffs being the prior user of the mark it transpires that there is a prima facie case for grant of interim injunction and at this juncture the balance of convenience and the irreparable loss cause to the party is in favour of the plaintiffs. Hence, in view of the principle laid down in the case of Laxmikant V. Patel Vs. Chetanbhat Shah and Ors., (2002) 3 SCC 65 and the case of Midas Hygiene v. Sudhir Bhatia 2004 (3) SCC 90, interim injunction till the final disposal of the suit is required to be granted in favour of the plaintiff. Therefore, following order is passed in the interest of justice:"
15. When the aforesaid observation brought to the notice of learned advocate Mr. Manav A. Mehta, appearing for the original plaintiff, he candidly accepted the fact that the impugned order may fall within the category of a non-speaking Page 14 of 18 Uploaded by MOHD MONIS(HC01900) on Sat Jan 18 2025 Downloaded on : Fri Jan 31 23:46:40 IST 2025 NEUTRAL CITATION C/AO/256/2024 ORDER DATED: 09/01/2025 undefined order, as there is no appreciation of submissions of the respective parties by the Trial Court. So, In view of the above, he has also now requested this Court to pass an appropriate order by remanding the matter to the Trial Court concerned for its fresh adjudication on merits by giving an opportunity to both sides to submit their additional documents, if any, and thereafter decide the injunction application filed by the plaintiff within some stipulated time, as the plaintiff is facing great hardship.
16. Thus, in view of the aforesaid facts and position of law, this Court is of the view that the impugned order is a non- speaking order, which requires to be quashed and set aside, and the matter is required to be remanded back to the Trial Court for its fresh adjudication on merits.
17. In view of the aforesaid facts and observations, the present appeal from the order is allowed on the following terms:-
i. The impugned order dated 10.12.2024, passed by the Page 15 of 18 Uploaded by MOHD MONIS(HC01900) on Sat Jan 18 2025 Downloaded on : Fri Jan 31 23:46:40 IST 2025 NEUTRAL CITATION C/AO/256/2024 ORDER DATED: 09/01/2025 undefined 3rd Additional District Judge, Ahmedabad (Rural), Ahmedabad, is hereby quashed and set aside, as according to this Court, the impugned order is a non-
speaking order.
ii. The impugned application filed by the plaintiff below Exhibit 5 in Trademark Suit No. 1 of 2023 pending before the 3rd Additional District Judge, Ahmedabad (Rural), Ahmedabad, is restored back to its file.
iii.Both parties are at liberty to submit additional documents, if any, within 2 weeks from the date of receipt of the copy of this order.
iv. Once such an exercise will be undertaken by the parties, the Trial Court is requested to hear the matter afresh in accordance with law and decide afresh the impugned application filed below Exhibit 5, preferably within a period of 6 weeks after submission of such additional documents by the parties.
v. It goes without saying that this Court has neither gone Page 16 of 18 Uploaded by MOHD MONIS(HC01900) on Sat Jan 18 2025 Downloaded on : Fri Jan 31 23:46:40 IST 2025 NEUTRAL CITATION C/AO/256/2024 ORDER DATED: 09/01/2025 undefined into nor examined the merits of the matter. vi. It is open for the Trial Court to pass a reasoned order after appreciating the submissions made by the respective parties through their counsel and considering the law prevailing as on the date of adjudication of the injunction application filed by the plaintiff. It is also expected from the respective parties that they will give full cooperation to the Trial Court so that the Court concerned can hear the matter afresh and decide the impugned application below Exhibit 5 at the earliest, preferably within 6 weeks from submission of additional documents, if any, by the parties, as suggested hereinabove.
vii. It is made clear that the Trial Court shall, without being influenced any observation made by this Court while adjudicating the present appeal, decide afresh the injunction application filed by the plaintiff below Exhibit 5 in Trademark Suit No. 1 of 2023 pending Page 17 of 18 Uploaded by MOHD MONIS(HC01900) on Sat Jan 18 2025 Downloaded on : Fri Jan 31 23:46:40 IST 2025 NEUTRAL CITATION C/AO/256/2024 ORDER DATED: 09/01/2025 undefined before it, in accordance with law.
17. In view of the above, the present appeal from the order is allowed to the aforesaid extent. No order as to costs. In view of the disposal of the main matter, the civil application is also disposed of accordingly.
(MAULIK J.SHELAT,J) MOHD MONIS Page 18 of 18 Uploaded by MOHD MONIS(HC01900) on Sat Jan 18 2025 Downloaded on : Fri Jan 31 23:46:40 IST 2025