Allahabad High Court
M/S India Glycols Limited vs Radico Khaitan Limited on 13 August, 2021
Bench: Ajit Kumar
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 7
Case :- MATTERS UNDER ARTICLE 227 No. - 3933 of 2021
Petitioner :- M/S India Glycols Limited
Respondent :- Radico Khaitan Limited
Counsel for Petitioner :- Mohit Singh
Hon'ble Ajit Kumar,J.
Heard Sri Navin Sinha, learned Senior Advocate assisted by Sri Mohit Singh, learned counsel for the petitioner and Sri Shashi Nandan, learned Senior Advocate assisted by Sri Rahul Sahai, learned counsel appearing for the contesting respondent-plaintiff.
By means of this petition under Article 227 of the Constitution, the order of temporary injunction granted by the trial court dated 23.7.2021 in O.S. No.1 of 2021 has been challenged. The ground of challenge is that the trial court while passing an ex parte temporary injunction order did not record any satisfaction with regard to balance of convinience and irreparable loss, the two of the three mandatory principles that guide the Court to grant temporary injunction.
Per contra, Sri Shashi Nandan has raised preliminary objection regarding maintainability of this petition under Article 227 of the Constitution of India on the ground that the petitioner has efficacious statutory remedy to prefer an application to vacate the ex parte interim temporary injunction order, under Order XXXIX Rule 4 of the Code of Civil Procedure, 1908. Learned Senior Advocate has relied upon a judgment of the Supreme Court in the case of Virudhunagar Hindu Nadargal Dharma Paribalana Sabai and Others vs. Tuticorin Educational Society and others reported in (2019) 9 Supreme Court Cases 538. He has drawn the attention of the Court towards paragraph no.13 of the said judgment wherein the Supreme Court has held:
"13. Therefore wherever the proceedings are under the code of Civil Procedure and the forum is the Civil Court, the availability of a remedy under the CPC, will deter the High Court, not merely as a measure of self imposed restriction, but as a matter of discipline and prudence, from exercising its power of superintendence under the Constitution. Hence, the High Court ought not to have entertained the revision under Article 227 especially in a case where a specific remedy of appeal is provided under the Code of Civil Procedure itself."
Having heard learned counsel for the parties and having gone through the records, while I find that the trial court proceeded to grant temporary injunction ex parte, it recorded an absolute finding of fact making out a prima facie case in favour of the plaintiff restraining the defendant from using the product of amazing holding it to be copied from the design of the plaintiff's registered trademark magic moments, it granted absolute injunction, though temporarily for a time bound period.
In considered opinion of the Court this kind of an absolute injunction restraining a party from using the product produced by it only on the basis of ex parte version should be passed when there is an absolute emergency to protect the interest of the plaintiff failing which irreparable loss will be caused to the plaintiff and for that proper reasons should be given which is quite lacking in the order impugned.
However, at the same time, I find that since it is an order of temporary injunction and is a time bound order, it would have been more appropriate for the defendant to have moved an application under Order XXXIX Rule 4 of the Code of Civil Procedure, 1908 for vacation of the interim injunction order.
At this stage, both the learned Senior Counsel appearing for their respective parties agree that since the interim injunction order is limited till the next date and the next date fixed is 16.8.2021, the court below may be directed to consider the objection of the defendant against the temporary injunction application of the petitioner and the temporary injunction already granted, if it is filed and placed before the Court before proceeding further to either extend the interim temporary injunction order or confirming the same.
In such above view of the matter, without further proceeding and making any observations on the merits of the claim of the respective parties this petition at this stage is disposed of with the direction that in the event any objection is filed by the present petitioner against the miscellaneous application of the plaintiff seeking temporary injunction, the same shall be considered on its own merits and any further order on the application of the temporary injunction including the order for extension of temporary injunction already passed, shall be passed after hearing the litigating parties in the matter of grant of temporary injunction.
However, it is further clarified that in case, if the matter is not heard on the date fixed for any unavoidable reason, the same shall be heard on the very next working day, so that the rights and interest of the respective parties are not prejudiced because of the delay in consideration either of the temporary injunction application or the objection, of the plaintiff and defendant respectively.
Before parting, it is observed that any observation made in this order shall not affect the hearing of temporary injunction application of the petitioner and the same shall be considered and decided on its own merits in the light of the directions issued hereinabove.
Order Date :- 13.8.2021
Deepika
