Bombay High Court
Innovations Garment Pvt. Ltd. vs Bhavesh Ramjibhai Gada on 6 November, 2025
2025:BHC-OS:20477 1/22 916-IA-1681-2025.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
IN ITS COMMERCIAL DIVISION
INTERIM APPLICATION NO. 1681 OF 2025
IN
COMMERCIAL IP SUIT NO. 80 OF 2025
Innovations Garment Pvt. Ltd. ]
a private limited company incorporated and ]
existing under the Companies Act, 1956, ]
having its registered office at, 85, Podar Centre, ]
Parel Post Office Lane, Dr. B.R. Ambedkar Road, ]
Mumbai-400012. ...Applicant
In the matter of:
Innovations Garment Pvt. Ltd. ]
a private limited company incorporated and ]
existing under the Companies Act, 1956, ]
having its registered office at, 85, Podar Centre, ]
Parel Post Office Lane, Dr. B.R. Ambedkar Road, ]
Mumbai-400012. ...Plaintiff
Versus
Bhavesh Ramjibhai Gada ]
An adult Indian inhabitant, ]
Age: unknown ]
trading under the name and style of ]
M/s. Ankur ]
A Hindu Undivided Family ]
Bearing GST No:27AAHHB0351A1Z2 ]
having its shop at, 12, D3 Satellite Garden, ]
Aarey Bhaskar Road, ]
Goregaon (East), Mumbai-400063 ] ...Defendant
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WITH
INTERIM APPLICATION NO. 1802 OF 2025
IN
COMMERCIAL IP SUIT NO. 294 OF 2024
Innovations Garment Pvt. Ltd. ]
a private limited company incorporated and ]
existing under the Companies Act, 1956, ]
having its registered office at, 85, Podar Centre, ]
Parel Post Office Lane, Dr. B.R. Ambedkar Road, ]
Mumbai-400012. ...Applicant
In the matter of:
Innovations Garment Pvt. Ltd. ]
a private limited company incorporated and ]
existing under the Companies Act, 1956, ]
having its registered office at, 85, Podar Centre, ]
Parel Post Office Lane, Dr. B.R. Ambedkar Road, ]
Mumbai-400012. ...Plaintiff
Versus
Ramji L. Gada ]
An adult Indian inhabitant, ]
Age: unknown ]
Having his address at; ]
having its shop at, ]
Shop Number 16, Vishwakarma ]
Paradise, Phase -1, Ambadi Road, ]
Vasai (West), Palghar-401201. ...Defendant No.1
And
M/s. Ankur ]
A Hindu Undivided Family ]
bearing GST No:27AAAHS6787E1ZS ]
having its shop at,
Shop Number 16, Vishwakarma ]
Paradise, Phase -1, Ambadi Road, ]
Vasai (West), Palghar-401201. ] ...Defendant No.2
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WITH
INTERIM APPLICATION NO. 1322 OF 2024
IN
COMMERCIAL IP SUIT NO. 101 OF 2024
Innovations Garment Pvt. Ltd. ]
a private limited company incorporated and ]
existing under the Companies Act, 1956, ]
having its registered office at, 85, Podar Centre, ]
Parel Post Office Lane, Dr. B.R. Ambedkar Road, ]
Mumbai-400012. ...Plaintiff
Versus
Kashyap Rathod ]
An adult Indian inhabitant, ]
Age: unknown ]
a sole proprietor of and trading as ]
M/s. Aastha School Uniform ]
having its shops at, ]
1-13, Trishla Complex, Opposite ]
Sakar School, New CG Road Chandkheda, ]
Ahmedabad - 382424. ] ...Defendant
-----
Dr. Virendra Tulzapurkar a/w Mr. Hiren Kamod Mr. Prem Khullar, Mr.
Aditya Chitale, Mr. Prashant Shetty, Mr. Sumedh Ruikar & Saikiran Mergu
i/b RK Dewan Legal Services, for the Applicant/Plaintiff.
Mr. M. M. Vashi a/w Ms. Itisha Ranka i/b M. P. Vashi & Associates, for the
Defendant.
Mr. Deepak S. Bhalerao, Second Assistant to Court Receiver, present.
-----
CORAM : ARIF S. DOCTOR, J.
RESERVED ON : 16 th OCTOBER, 2025
PRONOUNCED ON: 6th NOVEMBER, 2025
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JUDGMENT:
1. Since the issues that arise for consideration and the submissions made
in all three captioned Interim Applications are common, the captioned
Interim Applications were heard together and are being disposed of by this
common order.
2. This Court on 7th May 2024 passed an ex parte ad interim Order by
which the Defendants in the captioned Interim Applications were, inter alia,
restrained from using the trade mark ("the said trade mark") in
relation to manufacturing, selling, advertising, distributing, marketing,
exhibiting for sale or otherwise dealing in garments/uniforms ("the
impugned goods"). The Defendants, on being served with the ex parte ad
interim Order, have filed an Affidavit in Reply in Interim Application No.
1681 of 2025 invoking the provisions of Order XXXIX Rule 4 of the Code of
Civil Procedure, 1908 ("CPC"), to have the ex parte ad interim Orders set
aside on the ground that the Plaintiff had obtained the same by suppression
of material facts.
SUBMISSIONS ON BEHALF OF THE DEFENDANTS:
3. Mr. Vashi, Learned Senior Counsel appearing on behalf of the
Defendants, at the outset submitted that the Plaintiff had falsely stated in the
Plaint that the cause of action arose in the fourth week of April 2024, and
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that it was on this basis, by creating a false sense of urgency, that the Plaintiff
obtained ex parte ad-interim relief.
4. Mr. Vashi then submitted that the Plaintiff had suppressed the fact
that in an earlier Suit 1, ("the First Suit"), filed by one Anandilal and Ganesh
Poddar Society ("the Society") as Plaintiff No. 1, in which the present Plaintiff
was arrayed as Plaintiff No. 2, the same reliefs had been sought for. He
submitted that the First Suit had been filed against unknown persons, i.e.,
'John Doe/Ashok Kumar' Defendants, in which ad interim relief had been
refused by this Court by an order dated 28 th February 2018.
5. Mr. Vashi pointed out that the Plaintiffs had thereafter filed a
Chamber Summons seeking to implead four additional parties as Defendants
to the First Suit, one of whom, i.e., 'Ankur', is the Defendant in two of the
captioned Suits, namely, Suit No. 80 of 2025 and Suit No. 294 of 2024. He
submitted that the Chamber Summons was allowed, and accordingly,
'Ankur', i.e., the Defendant to the Suit Nos 80 of 2025 and 294 of 2024, was
impleaded as Defendant No. 4 to the First Suit. For ease of reference, the
Defendants in Suit Nos. 80 of 2025 and 294 of 2024 shall hereinafter be
referred to as the Defendants.
6. Mr. Vashi then also pointed out that in the First Suit, it had been
specifically pleaded that the present Plaintiff was a licensee of the Society in
respect of the said trade mark which was directly contrary to the stand taken
by the Plaintiff in the present Suit, where the Plaintiff has claimed to be the
registered proprietor of the same trade mark. He submitted that the First Suit
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was eventually dismissed for default, yet the Plaintiff, in the present Suit had
once again impleaded 'Ankur' as a Defendant without making any reference
to the First Suit.
7. Mr. Vashi then submitted that the Plaintiff had deliberately suppressed
the First Suit and thus created a false sense of urgency basis which the
Plaintiff had obtained the ex parte ad interim orders dated 7 th May 2024. He
submitted that such suppression amounted to a concealment of material
facts, and on this ground alone, the ex parte ad interim order dated 7 th May
2024 was required to be set aside. In support of his contention that
suppression of material facts is sufficient to warrant the setting aside of an ex
parte order, he placed reliance upon the judgement of this Court in Pidilite
Industries Limited v. Astra Chemtech Private Limited & Ors .
8. Mr. Vashi then also placed reliance upon the decision of the Delhi
High Court in the case of Reliance Big Entertainment Pvt. Ltd. v. Jyoti Cable
Network & Ors. to point out that the Delhi High Court had recognised and
affirmed the practice of granting injunctions in Suits filed against unknown
or unidentified defendants, commonly referred to as "John Doe" or "Ashok
Kumar". He pointed out that the Delhi High Court held that 'John Doe/Ashok
Kumar' orders were preventive in nature and were intended to safeguard a
Plaintiff's proprietary and statutory rights against potential infringers whose
identities were not known at the time of the filing of such Suit. He thus
submitted that since the First Suit was instituted for infringement of the same
trade mark, it was directed against all infringers, whether known or
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unknown, and would therefore necessarily include the present Defendants
and thus ought to have been disclosed.
9. Mr. Vashi additionally submitted that the Plaintiff's case was also
replete with contradictions. He pointed out that, in paragraph 6 of the
Rejoinder, the Plaintiff had asserted that the Plaintiff had been using the
trade mark since 2013 and had obtained registration thereof on 12 th
December 2017. He, however, pointed out that, contrary to such assertion,
the record showed that on 8 th February 2018, the Society had executed a
user agreement in favour of the Plaintiff in respect of the very same trade
mark which evidenced that the Plaintiff was only a permitted user of the
mark and not the proprietor of the said trade mark. This user agreement, he
submitted, was subsequently cancelled by the Society through its letter dated
25th August 2018. He further pointed out that the Society had also, by an
earlier resolution dated 18 th May 2015, resolved to grant a licence to the
Plaintiff to use the said trade mark. He thus submitted that ownership of the
said trade mark clearly vested in the Society, not in the Plaintiff. He
submitted that the Plaintiffs had not only failed to reconcile all these
contradictions and inconsistencies but had also totally suppressed them. He
submitted that such conduct amounted not only to suppression but to a
deliberate attempt to mislead the Court by presenting inconsistent and
mutually destructive pleas in two different proceedings.
10. Mr. Vashi submitted that, on one hand, the Plaintiff was seeking to
enforce rights in respect of a registered trade mark and copyright, while on
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the other hand, the school run by the Society had issued a circular, making
it optional for students to purchase stationery and uniforms from the
Plaintiff. He pointed out that this circular was issued pursuant to a directive
of the Deputy Director of Education, which prohibited schools from
compelling students to purchase uniforms or educational materials
exclusively from the school or specific vendors nominated by it. He pointed
out that such a circular had been issued pursuant to the Order dated 10 th
April 2003 passed by this Court in a Writ Petition 2 filed in the public
interest, wherein this Court had taken note of complaints from parents that
students were being compelled to purchase uniforms and educational
material directly from schools.
11. Basis the above, he submitted that, given that the Plaintiffs had
suppressed all of the above material facts from this Court, the ex parte ad
interim orders dated 7th May 2024 were required to be set aside.
SUBMISSIONS ON BEHALF OF THE PLAINTIFF :
12. Dr. Tulzapurkar, Learned Senior Counsel appearing on behalf of the
Plaintiff, at the outset submitted that the Defendants' contention of
suppression of material facts by the Plaintiff was wholly misconceived and
devoid of merit. He submitted that the Defendant's sole intention was to
divert the attention of the Court from the fact that the Defendant had
absolutely no answer to the Plaintiff's claim on the merits. He took pains to
point out that the Defendant had not even attempted to offer any justification
2 paragraph 7
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for the continued and blatant infringement of the Plaintiff's registered trade
mark and copyright. He submitted that it was thus clear that the Defendants
were rank infringers, and the allegations of suppression made by the
Defendants were entirely baseless and misconceived, both in fact and in law.
13. He then pointed out that the Plaintiff is not only the registered
proprietor of the said trade mark but also the registered owner of the
copyright subsisting in the artistic work bearing registration No. A-
136633/2021 ("the Copyright"). He submitted that both the trade mark and
the copyright registrations were valid and subsisting and thus constituted a
statutory recognition of the Plaintiff's exclusive proprietary rights in the said
mark and artistic work.
14. Dr. Tulzapurkar then submitted that since the year 2013, the Plaintiff
was engaged in the business of manufacturing and selling clothing,
including uniforms and ready-made garments, and has been continuously
using the said trade mark in relation to these goods and services. He
submitted that as a result, the Plaintiff had built substantial goodwill and
reputation in the said mark, which was both long-standing and well
established. In contrast, he pointed out that the Defendants were rank
infringers who had adopted an identical or deceptively similar mark to the
Plaintiff's registered trade mark without any licence, authority, or
assignment from the Plaintiff. He therefore submitted that the Defendants'
actions amount to both infringement and passing off, and that the ex parte
ad interim orders dated 7 th May 2024 had been rightly granted since this
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Court was satisfied that the Plaintiff had established a strong prima facie case
and that the balance of convenience was entirely in favour of the Plaintiff.
15. Dr. Tulzapurkar submitted that the entire foundation of the
Defendant's case was that the Plaintiff had suppressed the existence of the
First Suit, which, according to the Defendant, amounted to suppression of a
material fact. He pointed out that this was based on two alternative
contentions (i) that the Defendants were expressly impleaded as parties to
the First Suit, and (ii) even assuming otherwise, since the First Suit was
instituted as a 'John Doe/Ashok Kumar' action, it was an action in rem and
would therefore encompass all infringers, including the present Defendants.
He submitted that both these contentions were fundamentally misconceived,
factually incorrect, and legally untenable.
16. Dr. Tulzapurkar, in dealing with the Defendants' first contention,
namely, that the Defendants were a party to the First Suit submitted that such
an assertion was plainly false and misleading. He pointed out, from the cause
titles of both Suits, that the entity "Ankur", impleaded as Defendant No. 4 in
the First Suit, was a separate and distinct entity from the Defendants in the
present Suits. He pointed out that this was evident from the fact that the
addresses as well as the GST numbers of each of the entities named 'Ankur'
were different. He therefore submitted that, apart from a mere similarity in
name, the Defendants to the present Suits and Defendant No. 4 in the First
Suit were distinct and independent legal entities. Dr. Tulzapurkar also took
pains to point out that the Defendants had failed to produce any material to
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demonstrate even a nexus or relationship between the Defendants in the
present Suits and Defendant No. 4 in the First Suit, much less to establish that
they were one and the same entity.
17. Dr. Tulzapurkar then submitted that the Defendants had deliberately
withheld the complete set of papers and proceedings in the First Suit in order
to create a false impression that the Defendants in the present Suits were
party to the First Suit. He pointed out that the Plaintiff, in the Affidavit in
Rejoinder, had annexed the entire record of the First Suit, which clearly
reflected that not only were the present Defendants not parties to the First
Suit, but also that no summons or notice was ever issued to any of the
Defendants in the First Suit, nor was any relief sought or granted against
Defendant No. 4 in the First Suit.
18. Dr. Tulzapurkar submitted that the Defendants had also conveniently
failed to disclose that the First Suit had been dismissed for default, and thus
there had been no adjudication on the merits of the claims made in the First
Suit. He therefore pointed out that there were no findings which were
binding on the parties and which would in any manner affect or impact the
present Suit. He submitted that even assuming, without admitting, that the
Defendants in the present Suits were party to the First Suit, the dismissal of
the First Suit for default rendered it non est in the eyes of law. He submitted
that a Suit dismissed for default does not operate as res judicata, nor does it
create any estoppel or bar against subsequent proceedings on the same cause
of action. Accordingly, he submitted that the Defendants' reliance on the
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First Suit was entirely misplaced, as it had no relevance to the present
proceedings. He then submitted that the First Suit was wholly immaterial and
hence was not required to have been disclosed in the present Suit.
19. Dr. Tulzapurkar also pointed out that the provisions of Order XXXIX
Rule 4 of CPC could only be invoked if it was established that the injunction
was obtained by suppression of material facts. He submitted that the
existence of an earlier Suit which was dismissed for default and did not
concern the Defendants in the present Suits would not constitute a material
fact, the non-disclosure of which would vitiate the ex parte ad interim order.
It was thus that he submitted that the Defendants' first contention was,
therefore, based entirely on conjecture, a misreading of the record, and
deliberate suppression of context.
20. Dr. Tulzapurkar then, in dealing with the next contention, i.e., that the
First Suit was an action in rem and would therefore also include the
Defendants in the present Suits, submitted that such contention was based on
a complete misunderstanding of the nature and scope of 'John Doe/Ashok
Kumar' actions as recognised under Indian law. He pointed out that a 'John
Doe/Ashok Kumar' Suit was a procedural innovation intended to enable a
Plaintiff to obtain protective orders against unknown infringers whose
identities were not ascertainable at the time of filing the suit. He submitted
that such suits were not and could never be treated as actions in rem but
were actions in personam. He submitted that it was only because, at the stage
of institution of such suits, the identity of the infringers was unknown that
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such suits were instituted by arraying the infringers as 'John Doe/Ashok
Kumar'. He submitted that upon discovery of the identity of the infringers,
the pleadings were amended, and the infringers were then joined by name.
21. He submitted that the Defendants' interpretation would lead to an
absurd and legally impermissible result, namely that a single 'John
Doe/Ashok Kumar' suit would perpetually cover all future infringers. He
submitted that if such a contention were to be accepted, then a Plaintiff could
proceed indefinitely against all infringers, whether related or not, without
ever instituting fresh proceedings. He submitted that this would not only be
contrary to Order I Rule 3 of the CPC but also the fundamental principles of
natural justice, as it would deem a person/entity to be bound by a decree in
proceedings to which such person/entity had no opportunity to contest.
22. Dr. Tulzapurkar then submitted that 'John Doe/Ashok Kumar'
jurisprudence had been developed by the Courts to balance enforcement of
intellectual property rights with procedural fairness, and not to obliterate it.
It was thus he submitted that the Defendants' contention that a 'John
Doe/Ashok Kumar' suit was an action in rem was misconceived and legally
untenable.
23. Dr. Tulzapurkar submitted that the Defendants' reliance on the
circulars prohibiting schools from insisting that students purchase goods
from appointed vendors was wholly irrelevant to the present proceedings. He
pointed out that the Plaintiff is neither an educational institution nor a body
governed by such circulars. He pointed out that the Plaintiff is a separate
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legal entity, distinct from the Society, and is engaged in the lawful business
of manufacturing and selling clothing, garments, and uniforms in the open
market. He pointed out that the Plaintiff being the registered proprietor of
the said trade mark, there was no legal prohibition preventing the Plaintiff
from carrying on its legitimate trade and business.
24. He further submitted that the scope of the present Suit was strictly
confined to issues of infringement of the Plaintiff's registered trade mark,
copyright, and passing off under the Trade Marks Act, 1999, and the
Copyright Act, 1957, and that the Defendants' attempt to rely on circulars
issued by the education authorities and thereby convert these proceedings
into a public interest litigation was entirely misconceived and legally
impermissible.
25. He also pointed out that the Defendants' contentions were self-
contradictory, inasmuch as, on the one hand, the Defendants claimed to have
been impleaded as Defendant No. 4 to the First Suit, while on the other hand,
have asserted that since the First Suit was a 'John Doe/Ashok Kumar' action,
the same would cover all unknown infringers, including the Defendants. He
submitted that these contentions were mutually destructive and thus exposed
the falsity of the Defendant's case. He reiterated that the Plaintiff had neither
suppressed any material fact nor misled this Hon'ble Court in any manner.
26. Dr. Tulzapurkar then invited my attention to Order XXXIX Rule 4 of
the CPC and pointed out that an order of injunction granted under Rules 1 or
2 may be discharged, varied, or set aside by the Court upon an application
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made by any party dissatisfied with such order. He, however, pointed out
that the proviso to Rule 4 specifically stipulated that where an injunction has
been granted without notice to the opposite party, such injunction shall not
be discharged, varied, or set aside unless the Court is satisfied that the party
obtaining the injunction has misrepresented or concealed material facts. He
submitted that the scope and object of Order XXXIX Rule 4 was, therefore,
limited, and the inquiry contemplated under this provision was confined
solely to examining whether the injunction was obtained by
misrepresentation or suppression of material facts and did not extend to a
reconsideration of the underlying merits of the case. In support of this
submission, Dr. Tulzapurkar placed reliance on the decisions of this Court in
Laser Shaving (India) Pvt. Ltd. v. RKRM International Products Pvt. Ltd. and
K.L.F. Nirmal Industries Pvt. Ltd. v. K.L.F. Nirmal Industries Pvt. Ltd.
27. Basis the above, he submitted that the Defendants cannot, under the
guise of an application under Order XXXIX Rule 4 of the CPC, seek to reopen
or argue issues of infringement, ownership, or validity of the Plaintiff's
statutory rights and that the merits of the Plaintiff's claim were to be tested at
the stage of deciding the Plaintiff's application under Order XXXIX Rule 1
and 2 and not by invoking the provisions of Order XXXIX Rule 4. He thus
submitted that the Defendants' attempt to use Order XXXIX Rule 4 as a
means to revisit the substantive merits of the Plaintiff's infringement action is
wholly impermissible and contrary to the legislative intent of the provision.
28. Dr. Tulzapurkar submitted that the Defendants had failed to make out
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any case for setting aside the ex parte ad interim order dated 7th May 2024.
He reiterated that the Defendants' contentions rested on misconceived legal
propositions, misstatements of record and extraneous considerations wholly
irrelevant to the limited inquiry under Order XXXIX Rule 4 of the CPC. He
submitted that the Plaintiff had made a full and fair disclosure of all material
facts relevant to the present Suit and that the Plaintiff, being the registered
proprietor of the said trade mark as also the owner of the said copyright, had
made out a strong prima facie case for protection of its registered trade
marks and copyrights. He submitted that both the balance of convenience
and equity lie entirely in favour of the Plaintiff, and that it was imperative for
this Court to confirm the ex parte ad interim Order to prevent irreparable
injury to the Plaintiff more so when the Defendant did not have nor had
asserted even the semblance of any right to use the Plaintiff's registered trade
mark and copyright.
REASONS AND CONCLUSIONS:
29. Having heard the Learned Senior Counsel for the parties and upon
carefully considering their rival submissions as well as the case law relied
upon, I have no hesitation in rejecting the Defendant's contention that the
Plaintiff had obtained the ex parte ad interim order by suppression of
material facts for the following reasons:
A. At the outset, it is pertinent to note that the sole case put forth in the
Affidavit in Reply rests on an allegation of suppression of material
facts by the Plaintiff and on no other ground. The Defendants have
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not even attempted to offer any justification or explanation for their
use of the impugned trade mark of which the Plaintiff is the
registered proprietor, as clearly evidenced from the copyright
certificate which can be found at Exhibit-B of the present suits.
Thus, the Defendants, on their own showing, are rank infringers.
B. On merits, the contention that failure to disclose the First Suit
amounted to a material suppression of fact is also entirely devoid of
any merit. The material placed on record by the Plaintiff clearly
establishes that, apart from the similarity in name, the Defendants in
the present Suits and Defendant No. 4 in the First Suit are entirely
separate and distinct legal entities. This is evident from the fact that
their respective addresses and GST registration numbers are
different. Crucially, the Defendants have not produced a shred of
evidence to show how the Defendants to the present Suits are even
connected to Defendant No. 4 in the First Suit, let alone that they are
the same entity.
C. The contention that the First Suit was an action in rem and would
therefore bind the Defendants in the present Suit is also thoroughly
misconceived. John Doe/Ashok Kumar suits are instituted against
unidentified persons who are infringers or potential infringers and
whose identities are unknown at the time of filing of such suit. The
object of these suits is to enable a Plaintiff to obtain preventive or
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protective relief against such unknown persons to prevent
infringement. Such unknown infringers upon identification are then
impleaded by name as Defendants, and any orders passed are
applicable to them. It is, therefore, not the anonymity of the
defendant that defines the nature of such an action, but rather the
individual acts of infringement or apprehended infringement which
do. Even though the defendants are unnamed at the stage of
institution of the suit, the cause of action arises from their specific
acts of infringement or apprehended acts of infringement.
Consequently, any injunction or relief granted in a John Doe or
Ashok Kumar action operates personally against those infringers
and not against the public at large.
D. To accept the Defendants' contention that 'John Doe/Ashok Kumar'
suits are actions in rem would lead to untenable and absurd
consequences. It would imply that a single 'John Doe' order could
operate in perpetuity, binding all infringers known or unknown,
present or future, without notice or opportunity of hearing. Such a
position would be in direct contravention of Order I Rule 3 of the
CPC, which mandates that persons against whom a right to relief is
claimed must be properly joined and served, and would also be in
violation of the principles of natural justice. As rightly submitted on
behalf of the Plaintiff, 'John Doe/Ashok Kumar' jurisprudence is
intended to supplement procedural fairness and not to supplant or
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override it. Accordingly, the First Suit cannot, either in fact or in law,
be construed as having been instituted against the Defendants in the
present proceedings.
E. The decision of the Delhi High Court in the case of Reliance Big
Entertainment Pvt. Ltd. v. Jyoti Cable Network also does not support
the Defendants' contention that a 'John Doe/Ashok Kumar' Suit is an
action in rem. On the contrary, the said judgement specifically
records that "Since names and addresses of such cable
operators/persons are not known, they have been collectively
arrayed as defendant nos. 6 to 30 in the assumed name of 'Mr Ashok
Kumar3." Thus there is no finding or even suggestion that the order
passed in a 'John Doe/Ashok Kumar' would bind the world at large.
On the contrary, it envisaged that such unknown persons would be
identified and joined as defendants in due course.
F. The contention that the Plaintiff has taken inconsistent or
contradictory stands in the First Suit and the present Suits is both
untenable and wholly irrelevant. The Defendants, being both rank
infringers and not parties to the First Suit, have no locus to raise
such an objection. In any event, as clarified in the Plaintiff's Affidavit
in Rejoinder, the First Suit was a joint action instituted by the
Plaintiff and the Society to protect their respective trade marks
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against unknown infringers. The record further sets out, that the
user agreement dated 8th February 2018 has been cancelled. The
registration certificates dated 12th December 2017, in Classes 18,
21, 25, 26, and 35, confer upon the Plaintiff statutory proprietary
rights under the Trade Marks Act, 1999, including the exclusive
right to use the said mark and to seek relief against infringement
thereof. The causes of action in the First Suit and the present Suit are
distinct and arising at different points in time, against different
parties. Thus there is, no inconsistency or misrepresentation on the
part of the Plaintiff as alleged.
G. Also, it is undisputed that the First Suit was dismissed for default,
prior to which no summons or notice was served upon Defendant
No. 4 in the First Suit. Hence, the filing of the First Suit is entirely
inconsequential to the present Suits and is far from being a material
fact which ought to have been disclosed by the Plaintiff in the
present Suit. Accordingly, the decision in the case of Pidilite
Industries Ltd. v. Astra Chemtech Pvt. Ltd. relied upon by the
Defendants is entirely inapplicable to the facts of the present case.
H. As regards the reliance placed by the Defendants on circulars issued
by educational authorities, such reliance is entirely misconceived.
The circulars in question are wholly extraneous to the issues which
fall for consideration in the present Suit, namely infringement of the
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Plaintiffs' statutory rights as registered proprietors of the said trade
mark and copyright . The Plaintiff is a private limited company
engaged in the manufacture and sale of uniforms and garments; it is
neither a school nor an educational institution nor an authority to
which the said circulars apply. These administrative directives,
issued in the context of regulating school practices, cannot be
invoked to justify or condone infringement of a registered trade
mark, nor can they serve as a basis for vacating an injunction
granted to protect statutory intellectual property rights. The
protection conferred under the Trade Marks Act, 1999, arises from
statute and cannot be diluted or overridden by departmental
circulars of non-binding character.
I. It is well settled that the power under Order XXXIX Rule 4 of the
CPC is circumscribed by the proviso which states that an ex parte
injunction can be vacated only if the Court is satisfied that the order
was obtained by misrepresentation or concealment of material facts.
The enquiry under Rule 4 does not involve a re-examination on the
merits. The object of Order XXXIX Rule 4 is limited to ensure that
the Court is not misled into granting a protective order on the basis
of deliberate or material non-disclosure.
Vaibhav
22/22 916-IA-1681-2025.doc
30. Given that in the facts of the present case I am satisfied that the ex
parte ad interim order dated 7th May 2024 was not obtained by either
misrepresentation or concealment of material facts. Hence the question of
setting aside/vacating the said Order under the provisions of Order XXXIX
Rule 4 does not arise. As already noted above, the Defendants are rank
infringers who do not have a semblance of a right to use the Plaintiff's
registered trade mark and copyright, despite which the Defendants have
done so with impunity. Hence, I pass the following order:
ORDER
i. The Defendants' application under Order XXXIX Rule 4 of
the Code of Civil Procedure, 1908, for setting aside the
Order dated 7th May 2024 is rejected.
ii. The Interim Application is allowed in terms of prayer
clauses (a), (b) and (c).
[ARIF S. DOCTOR, J.]
Vaibhav
