Gujarat High Court
Manilal Joyataram Patel - An Indian ... vs M M Magajwala on 17 January, 2014
Author: K.M.Thaker
Bench: K.M.Thaker
C/SCA/614/2014 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 614 of 2014
TO
SPECIAL CIVIL APPLICATION NO. 616 of 2014
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MANILAL JOYATARAM PATEL - AN INDIAN NATIONAL....Petitioner(s)
Versus
M M MAGAJWALA....Respondent(s)
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Appearance:
MR HARSHIL SHAH, ADVOCATE for the Petitioner(s) No. 1
MR RR SHAH, ADVOCATE for the Petitioner(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE K.M.THAKER
Date : 17/01/2014
ORAL ORDER
1. Heard Mr.Shah, learned advocate for the petitioner.
2. The present petition is taken out against the order dated 08.01.2014, which reads thus:-
"ORDER BELOW EX.05 Heard learned advocate for the plaintiff, read application and peruse the documentary evidence. Learned advocate for the plaintiff has submitted that to pass ex-party injunction against the defendant because defendant have adopted the plaintiff trademark and infringe the trademark act. So, ex- party injunction is necessary.
Now, looking to the facts of hte case this suit is filed by the plaintiff on 02.01.2014 and order has been passed by this Court to issue show cause notice to the defendant which was returnable on 08.01.2014, but plaintiff has not affix any Court fees stamp, so notice was not issue to the other side. So at this juncture without serving the notice to other side this Court cannot pass ex-party injunction against the defendant. Hence, in the interest of justice, I pass the following order.
ORDER Page 1 of 5 C/SCA/614/2014 ORDER On payment of P.F. Show Cause notice issue to the defendant which is returnable on dated 21.01.2014.
Dated:08/01/2014 Place:Visnagar. (Bhanubhai Nanjibhai Makwana) 2nd Additional District Judge, Mehsana at Visnagar.
Code No.GJ00319"
3. The petitioner is aggrieved by the order dated 08.01.2014 to the extent that learned Trial Court merely issued notice below application (Exh.5) seeking interim relief under Order 39 Rule 1 of the Code of Civil Procedure and did not grant ex-parte ad-interim injunction in favour the petitioners-applicants.
4. In such circumstances, the petitioner, now claims that though the suit is pending before the learned Trial Court, this Court should grant ex-parte interim relief and entertain the petition and decide it on merits, which would translate into conducting & deciding Exh.5 application on merits.
5. The petitioner has prayed inter alia that:-
"9(B) YOUR LORDSHIP may be pleased to issue a writ of certiorari or a writ in the nature of certiorari or any other appropriate writ, order or direction quashing and setting aside the impugned order dated 08.01.2014 passed by the learned 2nd Additional District Judge, Mehsana at Visnagar below Exh.5 in Civil Suit No.1/2014 to the extent of not granting ad interim injunction in favour of the petitioners herein; and further be pleased to restrain the respondents themselves, their proprietor, agents, dealers and distributors or any other person working for and on behalf of the respondents - defendants by order of interim injunction from using and reproducing in any manner the said suit lables with identical trade dress with yellow, red and green colour scheme having same design, get up, style with the symbol of OM in greed Page 2 of 5 C/SCA/614/2014 ORDER background in yellow circles written in Sanskrit language in front and back sides of the label with the word SAI in Gujarati language written in red colour in front and back sides of hte label and thereby restrain from committing an act of infringment of copyrights subsist in the petitioners' suit artistick work OHM labels registered under the Copyrights Act,1957 bearing No.A.63371/2003 as of hte date 10th February,2003, in respect of spices and Jeera."
6. So far as relevant facts are concerned, the petitioner herein, who is the original plaintiff, filed suit alleging infringement of copyright.
7. The said suit came to be registered as Civil Suit No. 1 of 2014. In the said suit, the present petitioner has prayed, inter alia, that:-
"31 (A) The defendants themselves, their proprietor, agents dealers and distributors or any other person working for and on behalf of the defendants be restrained by an order or interim injunction from infringing the copyrights of hte plaintiff's suit artistic work OHM labels registered under the Copyrights Act,1957 bearing No.A-63371/2003 as of the date 10th February,2003 in respect of Spices and Jeera."
8. Considering the relief prayed for by the petitioner, the learned Trial Court passed the above quoted order dated 08.01.2014. The learned trial Court considered it appropriate to issue Notice & call for defendant's reply instead of granting ex-parte interim relief. Some how applicant-petitioner is aggrieved by the said order so far as ex-parte relief is not granted.
9. In the said order dated 08.01.2014, the learned Trial Court seems to have committed an error in mentioning the subject matter of the suit inasmuch as instead of mentioning that the suit is filed for infringement of copyrights, learned trial Court appears to have mentioned Page 3 of 5 C/SCA/614/2014 ORDER infringement of trademarks. In light of the said error, learned advocate for the petitioner submitted that learned trial Court has passed order without application of mind.
10. On perusal of the order dated 08.01.2014, which is impugned in the present petition, it has emerged that along with the suit the petitioner-plaintiff has taken out interim relief application under Order 39 Rule 1 and the learned trial Court considered the submissions of the learned advocate for the plaintiff - petitioner and having regard to the provisions under Order 39 Rule 3, learned trial Court considered it appropriate to issue notice and call for the reply from the defendant instead of granting ex-parte interim relief on the interim relief application (Exh.5) preferred by present petitioner - plaintiff along with the suit.
11. In that view of the matter and also considering the fact that notice is made returnable on 21.01.2014, the Court, at this stage, is not inclined to interfere with the said order, in discretionary jurisdiction invoked by the petitioner in the present petition.
12. It is obvious that on 21.01.2014, learned trial Court will hear present petitioner's interim relief application (Exh.5) and pass appropriate order after hearing both the sides.
13. It is also clear that it would be open for the petitioner-plaintiff to request the Court to not grant adjournment and pass appropriate order below Exh.5 Page 4 of 5 C/SCA/614/2014 ORDER (interim relief application) on 21.01.2014.
14. Since the matter is pending before the learned trial Court and the learned trial Court has already issued notice to the defendant and also having regard to the fact that the learned trial Court has not refused interim relief, on the contrary, has issued notice and called for defendant's reply, the Court is not inclined to interfere with the said order at this stage.
15. However, it is clarified that on 21.01.2014, the learned Trial Court may proceed to hear the interim relief application (Exh.5) preferred by the petitioner under Order 39 Rule 1 and after considering the material available on record, independently pass appropriate order in accordance with law and in light of the facts of the case.
With the aforesaid observation, present petition is disposed of.
(K.M.THAKER, J.) Girish Page 5 of 5