Gujarat High Court

Jitesh Kumar S/O Omprakash Maheshwary ... vs Babushah Ibrahimsha Juneja on 9 January, 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
                       ==========================================================

                         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

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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

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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;

(D) The defendant be temporary restrained from reproducing their product under the artistic work having identical style, get-up,

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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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                       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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                       8.         Downloaded copy of the affidavit filed by the         14/8

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

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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

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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

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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?

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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

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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

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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

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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

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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

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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

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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

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