Karnataka High Court
Hms Host Services India Pvt Ltd vs Mavalli Tiffin Rooms on 6 January, 2017
Equivalent citations: AIR 2017 KARNATAKA 85, 2017 (4) AKR 356, (2017) 4 CIVLJ 606, (2017) 2 KCCR 1107, (2017) 3 KANT LJ 61, (2017) 3 CIVILCOURTC 478
Author: B.Veerappa
Bench: B.Veerappa
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 06TH DAY OF JANUARY, 2017
BEFORE
THE HON'BLE MR. JUSTICE B.VEERAPPA
MISCELLANEOUS FIRST APPEAL No.4105/2016 (IPR)
R
BETWEEN:
HMS HOST SERVICES INDIA PVT. LTD.,
HAVING ITS REGISTERED OFFICE AT
NO.6/14, PRIMROSE ROAD,
BENGALURU-560025.
REPRESENTED BY ITS DIRECTOR AND
AUTHORIZED SIGNATORY,
MR. M. SRINIVASA RAO.
...APPELLANT
(BY SRI G.L. VISHWANATH, ADVOCATE FOR
SRI P.S. PREETHAM, ADVOCATE)
AND:
MAVALLI TIFFIN ROOMS,
NO.14, LALBAGH ROAD,
BENGALURU-560027.
REPRESENTED BY ITS MANAGING DIRECTOR
MS. P HEMAMALINI MAIYA,
...RESPONDENT
(BY SRI SUSHEN. S. ADVOCATE FOR
SRI HARIKRISHNA S HOLLA, ADVOCATE)
...
THIS MFA IS FILED UNDER ORDER 43 RULE 1(r) OF THE
CPC, AGAINST THE ORDER DATED: 28.04.2016 PASSED ON I.A.
NO.3 IN O.S. NO.2314/16 ON THE FILE OF THE PRINCIPAL CITY
CIVIL & SESSIONS JUDGE, BENGALURU, ISSUING SUIT
SUMMONS AND NOTICE ON IA NO.3 TO THE DEFENDANT.
THIS APPEAL COMING ON FOR ORDERS THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
2
JUDGMENT
This is a defendant's Miscellaneous First Appeal against the order dated 28.04.2016 on I.A.No.3 granting an ad-interim ex-parte temporary injunction in favour of the plaintiff restraining the defendant from infringing the plaintiff's well established registered trademark 'MTR' in running vegetarian restaurant and passing off the same by using the offending mark 'MTC' and 'MTC Express' which is deceptively and confusingly similar as that of plaintiff, till next date.
2. The respondent herein who is the plaintiff filed O.S.No.2314/2016 for permanent injunction restraining the appellant/defendant its servants, assigns or agents or any one claiming through it from in any manner infringing on its well established registered trade mark 'MTR' or any other trademark/trading style which are in any way deceptively similar to its registered trademark by using offending trade name 'MTC' and 'MTC Express' 3 or any other deceptively similar trademark/ trading style, etc. raising various contentions.
3. The plaintiff also filed I.A.No.1 under Order XXXIX Rule 1 and 2 of the Code of Civil Procedure. The Trial Court, considering the application, by an order dated 23.03.2016 granted ex-parte injunction as prayed for and directed the plaintiff to comply with the provisions of Order XXXIX Rule 3(a) of Code of Civil Procedure and issued suit summons and notice on I.A.No.1 to the defendant returnable by 25.04.2016. On 25.04.2016, since the provisions of Order XXXIX Rule 3(a) of Code of Civil Procedure was not complied with by the plaintiff, summons/notice was not issued and the matter was posted on 26.04.2016 and then adjourned to 27.04.2016. On that day the advocate for the plaintiff filed another application I.A.No.3 under Order XXXIX Rule 1 and 2 r/w Section 151 of the Code of Civil Procedure and the matter was heard and posted for 4 orders and subsequently, the impugned order came to be passed on 28.04.2016 on I.A.No.3, again granting ex- parte temporary injunction for the second time. Hence the present appeal is filed by the defendant.
4. I have heard the learned counsel for the parties to the lis.
5. Sri G.L.Vishwanath, learned counsel for Sri P.S. Preetham, advocate for the appellant, contended that the impugned order passed by the Trial Court allowing I.A.No.3 granting ex-parte temporary injunction is contrary to the provisions of Order XXXIX Rule 3(a) of Code of Civil Procedure, since application I.A.No.3 itself was not maintainable. Learned counsel submits that since the plaintiff failed to comply with the order dated 23.03.2016 passed by the trial Court on I.A.No.1, at most, the Trial Court could have vacated the ex-parte interim order, but unfortunately, the Trial Court has proceeded to entertain another application and granted 5 ex-parte temporary injunction on 28.04.2016 which is verbatim/repetition of the earlier order, which is impermissible under law.
6. Learned counsel further contended that without complying with the provisions of Order XXXIX Rule 3(a) of the Code of Civil Procedure the plaintiff is disentitled to file a fresh application. The Trial Court ought to have rejected the application as not maintainable. Instead of that, the Trial Court has proceeded to pass the impugned ex-parte temporary injunction which is wholly erroneous and contrary to Order XXXIX Rule 3(a) of Code of Civil Procedure. In support of his contentions, learned counsel for the appellant sought to rely on the following decisions.
(i) S.B.L. Limited Vs. Himalaya Drug Co.
(AIR 1998 DEL 126(DB)
(ii) A. Venkatasubbaiah Naidu Vs. S. Chellappa and others (2000) 7 SCC 695.
6Therefore, he submits that the impugned order passed by the Trial Court is liable to be set-aside, by allowing the Miscellaneous First Appeal.
7. Per contra, Sri Sushen.S. learned counsel for Sri Harikrishna S.Holla, advocate for respondent/plaintiff sought to justify the impugned order passed by the Trial Court. He has raised a preliminary objection with regard to maintainability of the appeal and contended that against an ex-parte interim order passed by the Trial Court, the appellant/defendant has the remedy of filing an application for vacating stay under Order XXXIX Rule 4 of Code of Civil Procedure and therefore, the present Miscellaneous First Appeal is not maintainable. He sought to rely on the Division Bench decision of this Court in the case of M/s Parijatha and another vs. Kamalaksha Nayak and others reported in AIR 1982 KAR 105.
7
8. Having heard the learned counsel for the parties, the only point that arises for consideration is:
"Whether the Trial Court is justified in granting an order of ex-parte temporary injunction on IA No.3 for the 2nd time, when the plaintiff failed to comply with the order passed on IA-I under the provisions of Order XXXIX Rule 3(a) of the Code of Civil Procedure, in the facts and circumstances of the case?"
9. I have given my anxious consideration to the arguments advanced by the learned counsel for the parties and perused the entire material on record carefully.
10. It is not in dispute that the respondent herein filed O.S.No.2314/2016 for injunction restraining the appellant/defendant from interfering with the plaintiff's alleged well established registered trademark 'MTR' or any other trademark/trading style which are in any way deceptively similar to plaintiff's registered trademark by using offending trade name 'MTC' and 'MTC Express' or 8 any other deceptively similar trademark/ trading style, etc. raising various contentions in the plaint.
11. It is an admitted fact that the plaintiff filed I.A.No.1 for temporary injunction and the Trial Court, by an order dated 23.03.2016 granted ex-parte temporary injunction as prayed with a direction to the plaintiff to comply with the provisions of Order XXXIX Rule 3(a) of Code of Civil Procedure and issued suit summons and notice on defendant returnable by 25.04.2016, which reads as under:
ORDERS ON IA NO.1 "Perused IA No.1 filed under order 39 rule 1 & 2 r/w Section 151 of CPC, affidavit and the documents such as copy of partnership deed dated 1.11.1999, Trademark certificates bearing No.1262120,126212,1262122,1262123,1552451 1556365 in class 42 (new class 43) obtained from the website of trade mark registry, web page of the plaintiff's restaurant, photographs, box, carry bag and newspaper articles of plaintiff restaurant, search report of defendant's 9 trademark from the website of trade mark registry, newspaper article of defendant's restaurant, website promotion of defendants restaurant, photographs of the defendant's restaurant, details of defendant's restaurant on ministry of corporate affairs, bills issued by the defendant's restaurant and the decisions relied upon by the learned counsel appearing for plaintiff reported in 1) 2004(3) SCC 90 (MIDAS HYGIENE INDUSTRIES-VS-SUDHIR BHATIA), 2) 1998 PTC 18(MRF LTD., VS NR FARIDABAD RUBBERS), 3) 2007 (35) PTC 406 (GM MODULAR VS TM MARKETING), 4) 2004 (29) PTC 88 (GLAXO GROUP LTD VS NEON LABORATORIES), 5) 2005 (80) PTC 233 (DHARIWAL INDUSTRIES VS MSS FOOD PRODUCTS) 6) AIR 1974 P & H 14 ( THE GENERAL ELECTRIC CO. VS PYARA SINGH.
2. At this stage the plaintiff has made out a prima-facie case for grant of ad-interim exparte temporary injunction as prayed in I.A.1. Hence issue of prior notice on IA No.1 to the defendant is dispensed as the very object of granting injunction would be defeated by delay. Hence issue an ad-interim temporary injunction restraining the defendant, their servants, workers, agents, dealers, sales persons or any 10 persons claiming through them in any manner from infringing the plaintiff's well established registered trade mark MTR in running vegetarian restaurant and passing off the same by using the offending mark MTC and MTC express which is deceptively and confusingly similar as that of plaintiff till next date.
3. Plaintiff to comply with the provisions of Order 39 rule 3(a) of CPC.
Issue suit summons and notice on IA. No.1 to the defendant returnable by 25.4.2016."
12. It is also not in dispute that the plaintiff has not complied with the order dated 23.03.2016 passed by the Trial Court. Therefore, the suit summons was not issued as could be seen from the office note in the order sheet of the Trial Court dated 25.04.2016 and 26.04.2016. On 27.04.2016, the plaintiff, instead of filing necessary application for extension of time for compliance of the order dated 23.03.2016, filed fresh application I.A.No.3 under Order XXXIX Rule 1 & 2 of 11 Code of Civil Procedure for grant of ex-parte temporary injunction. The Trial Court ignoring the non compliance of its earlier order dated 23.03.2016 by the plaintiff, entertained the second application for the very same relief and granted exparte injunction on 28.04.2016 assigning reasons which are verbatim/ repetition of the order dated 23.03.2016 which reads as under:
ORDERS ON IA NO.3 "On perusal of the order sheet the predecessor in office has granted exparte adinterim temporary injunction against the defendant as sought in IA.1 filed under order 39 rule 1 & 2 CPC till next date of hearing and directed the plaintiff to comply order 39 rule 3(a) CPC vide order dated 23.3.2016. The plaintiff has not complied the provisions of order 39 rule 3(a) CPC and summons were not issued to the defendant. Thereafter the plaintiff has filed IA No.3 under the same provision of law for the same relief as sought in IA.1.12 2. Perused IA No.3 filed under order 39 rule 1
& 2 r/w Section 151 of CPC, affidavit and the documents such as copy of partnership deed dated 1.11.1999, Trademark certificates bearing No.1262120,126212,1262122,1262123,1552451 1556365 in class 42 (new class 43) obtained from the website of trade mark registry, web page of the plaintiff's restaurant, photographs, box, carry bag and newspaper articles of plaintiff restaurant, search report of defendant's trademark from the website of trade mark registry, newspaper article of defendant's restaurant, website promotion of defendants restaurant, photographs of the defendant's restaurant, details of defendant's restaurant on ministry of corporate affairs, bills issued by the defendant's restaurant and the decisions relied upon by the learned counsel appearing for plaintiff reported in 1) 2004(3) SCC 90 (MIDAS HYGIENE INDUSTRIES-VS-SUDHIR BHATIA), 2) 1998 PTC 18(MRF LTD., VS NR FARIDABAD RUBBERS), 3) 2007 (35) PTC 406 (GM MODULAR VS TM MARKETING), 4) 2004 (29) PTC 88 (GLAXO GROUP LTD VS NEON LABORATORIES), 5) 2005 (80) PTC 233 (DHARIWAL INDUSTRIES VS MSS FOOD PRODUCTS) 6) AIR 1974 P & H 14 ( THE GENERAL ELECTRIC CO. VS PYARA SINGH.13
3. At this stage the plaintiff has made out a prima-facie case for grant of ad-interim exparte temporary injunction as prayed in I.A.3. Hence issue of prior notice on IA No.3 to the defendant is dispensed as the very object of granting injunction would be defeated by delay. Hence issue an ad-interim temporary injunction restraining the defendant, their servants, workers, agents, dealers, sales persons or any persons claiming through them in any manner from infringing the plaintiff's well established registered trade mark MTR in running vegetarian restaurant and passing off the same by using the offending mark MTC and MTC express which is deceptively and confusingly similar as that of plaintiff till next date.
4. Plaintiff to comply with the provisions of Order 39 rule 3(a) of CPC.
Issue suit summons and notice on IA. No.3 to the defendant returnable by 24th."
13. Since the plaintiff has failed to comply with the order dated 23.03.2016 passed on IA-1, the Trial Court ought to have vacated the interim order of injunction 14 without expressing any opinion on the merits of the case leaving it open for the parties to have hearing on IA-I, instead of entertaining the second application and granting ex-parte injunction reiterating the reasons assigned while allowing on IA-I and the same is contrary to the very object of the provisions of Order XXXIX Rule 1 and 2 and Order XXXIX Rule 3(a) of Code of Civil Procedure which is nothing but to encourage the litigants to raid on the Court in violating the court orders which is impermissible under law. Absolutely no discussion is made by the Trial Court with regard to the earlier order dated 23.03.2016 except observing that the earlier order is not complied and the same is erroneous, cannot be sustained. Therefore, the very application filed by the plaintiff for the second time is not maintainable.
14. Though the learned counsel for the plaintiff Sri Sushen raised preliminary objection with regard to 15 maintainability of the present appeal relying on the dictum of the Division Bench of this Court in the case of M/s Parijatha, (supra), the fact remains that, it was a case where an application for temporary injunction was made in a regular course after following the procedure as contemplated, and under those circumstances it was open for the defendant, if aggrieved by the ex-parte injunction, to file an application under Order XXXIX Rule 4 of Code of Civil Procedure. But in the present case, it is undisputed fact that though an order of temporary injunction was granted by the Trial Court on 23.03.2016, the plaintiff failed to comply with the provisions of Order XXXIX Rule 3(a) of Code of Civil Procedure. Inspite of the same the Trial Court again entertained the second application for the very same relief which is not permissible, unless and until the plaintiff complied with the previous order. The facts of the said case has no application to the facts and circumstances of the present case. Therefore, 16 contention of the learned counsel for the respondent/plaintiff that the present appeal is not maintainable, cannot be accepted, since, the ex-parte temporary injunction granted by the Trial Court by entertaining the second application itself is erroneous.
15. The material on record clearly depicts that the Trial Court has committed a mistake in not following the procedure as contemplated under law and therefore there is no bar to file an appeal under Order 43 Rule 1(r) of Code of Civil Procedure. Therefore, the preliminary objection raised cannot be accepted and same is rejected. My view is fortified by the dictum of the Hon'ble Supreme Court in the case of A.Venkatasubbiah Naidu vs. S.Chellappan and others reported in (2000)7 SCC 695, at para 21 which reads as under:
"21. It is the acknowledged position of law that no party can be forced to suffer for the inaction of the court or its omissions to act according to 17 the procedure established by law. Under the normal circumstances the aggrieved party can prefer an appeal only against an order passed under Rules 1, 2, 2A, 4 or 10 of Order 39 of the Code in terms of Order 43 Rule 1 of the Code. He cannot approach the appellate or revisional court during the pendency of the application for grant or vacation of temporary injunction. In such circumstances the party which does not get justice due to the inaction of the court in following the mandate of law must have a remedy. So we are of the view that in a case where the mandate of Order 39 Rule 3A of the Code is flouted, the aggrieved party, shall be entitled to the right of appeal notwithstanding the pendency of the application for grant or vacation of a temporary injunction, against the order remaining in force. In such appeal, if preferred, the appellate court shall be obliged to entertain the appeal and further to take note of the omission of the subordinate court in complying with the provisions of Rule 3A. In appropriate cases the appellate court, apart from granting or vacating or modifying the order of such injunction, may suggest suitable action 18 against the erring judicial officer, including recommendation to take steps for making adverse entry in his ACRs. Failure to decide the application or vacate the ex-parte temporary injunction shall, for the purposes of the appeal, be deemed to be the final order passed on the application for temporary injunction, on the date of expiry of thirty days mentioned in the Rule."
16. The Division Bench of Delhi High Court while considering the provisions of Order XXXIX Rule R3(a) and (b) of the Code of Civil Procedure in the case of S.B.L.Limited vs. Himalaya Drug Co. reported in AIR 1998 DEL 126 at para 36 held as under:
"36. We are of the opinion that if the court is satisfied of non-compliance by the applicant with the provisions contained in the proviso then on being so satisfied the court which was persuaded to grant an ex-parte ad interim injunction confiding in the applicant that having been shown indulgence by the court he would comply with the requirements of the proviso, it would simply vacate the ex parte order of injunction without expressing any opinion of the merits of 19 the case leaving it open to the parties to have a hearing on the grant or otherwise on the order of injunction but bi-part only. The applicant would be told that by his conduct (mis-conduct to be more appropriate) he has deprived the opponent of an opportunity of having an early or urgent hearing on merits and, therefore, the ex parte order of injunction cannot be allowed to operate any more."
17. For the reasons stated above, the point raised in the present appeal has to be answered in the negative holding that the Trial Court is not justified in granting an ex-parte injunction on IA No.3 for the second time, when the Plaintiff failed to comply with the orders passed on IA-I under the provisions of Order XXXIX Rule 3(a) Code of Civil Procedure.
18. For the reasons stated above, the Miscellaneous First Appeal is allowed. The impugned ex-parte interim order dated 28.04.2016 on I.A.No.3 in O.S. No.2314/2016 on the file of the XVIII Addl. City Civil 20 and Sessions Judge, Bengaluru, (CCH-10) is set-aside. However, in the interest of justice, it is needless to observe that the Trial Court shall consider IA-I after hearing both the parties, in accordance with Law.
19. In view of disposal of the appeal, I.A.No.1/2016 for vacating stay does not survive for consideration.
20. The Registry is directed to circulate a copy of this order to all learned Judges who are handling the civil matters for proper adjudication.
Sd/-
JUDGE kcm