Kerala High Court

G.M. Sheik vs Raja Biri Private Ltd on 31 August, 2022

             IN THE HIGH COURT OF KERALA AT ERNAKULAM
                             PRESENT
              THE HONOURABLE MR. JUSTICE P.SOMARAJAN
     WEDNESDAY, THE 31st DAY OF AUGUST 2022 / 9TH BHADRA, 1944
                        FAO NO. 94 OF 2022
 AGAINST THE EX-PARTE ORDER OF INJUNCTION IN I.A.No.2/2022 IN OS
  No.4/2022 OF ADDITIONAL DISTRICT COURT-IV, THIRUVANANTHAPURAM
APPELLANTS/DEFENDANTS/RESPONDENTS:

    1     G.M. SHEIK, AGED 28 YEARS,
          S/o ABDUL HOSEN, VILL - KESHABPUR TENAPARA,
          P S -ISLAMPUR DISTRICT - MURSHIDABAD,
          WEST BENGAL - 722 304.

    2     MEHURNEZA, AGED 20 YEARS,
          D/o MUKUL S.K., VILL + PO - UPAR FATHEPUR,
          PS - LALGOLA, MURSHIDABAD DISTRICT,
          WEST BENGAL - 742 148.

    3     FAROOK ABDULLA, AGED 30 YEARS,
          S/o ABDUL HOSEN, TRIVANDRUM BUILDING AND DEVELOPER,
          HARISREE, THIRUVANANTHAPURAM, KERALA ALSO HAVING F & L
          TRADERS, KP VII/236, NEAR VELLAYANI DEVI TEMPLE,
          KANAYAKUMARI ROAD, NEMOM, PALLICHAL VILLAGE,
          THIRUVANANTHAPURAM - 695 020.

          BY ADVS. V.G.ARUN (K/795/2004)
                   V.JAYA RAGI
                   R.HARIKRISHNAN (KAMBISSERIL)
                   NEERAJ NARAYAN


RESPONDENTS/PLAINTIFFS/PETITIONERS:
     1     M/s RAJA BIRI PRIVATE LTD., PUTIKHALI KRISHNAGANJ,
           MAJADIA, NADIA DISTRICT, WEST BENGAL, REPRESENTED BY
           MANAGING DIRECTOR HAREKRISHNA BISWAS,
           S/o SADANATHA BISWAS, RAIL BAZAR P.O., MAJADIA,
           NADIA DISTRICT, WEST BENGAL - 741 507.

    2     MUGAL TRADE LINKS, T.C.NO.100/950-3,
          PANACHAMOOTTIL VEEDU, STATIONKADAVU, KAZHAKOOTTAM P.O.,
          THIRUVANANTHAPURAM - 695 582, REPRESENTED BY ITS
          PROPRIETOR SUDHEER S.

    3     GREEN KERALA MARKETING, THIRUVATHIRA COMPLEX,
          NEAR RTO CHECKPOST, ATTUPURAM, UCHAKKADA P.O.,
          THIRUVANANTHAPURAM - 695 506, ALSO HAVING BUSINESS AT
  FAO NO. 94 OF 2022

                                      2

            3/1090, GROUND FLOOR, KALLUKUZHI JUNCTION,
            UMAYANALLOOR P.O., KOLLAM, KERALA, PIN - 691 589.

    4       ZIYAS TRADERS, CHALI KOTHUVAL STREET,
            THIRUVANANTHAPURAM, ALSO HAVING BUSINESS AT
            PRAVACHAMBALAM, NEMOM, THIRUVANANTHAPURAM - 695
            020.

    5       MUTHU STORE, MARKET ROAD, KATTAKKADA,
            THIRUVANANTHAPURAM - 695 571.

    6       M/s H.ENTERPRISES, TC 6/606, NLRA 25,
            ULLOOR, MEDICAL COLLEGE P.O.,
            THIRUVANANTHAPURAM - 695011.

    7       M/s N.S.MARKETING, NEAR PRAVACHAMBALAM,
            NEMOM, THIRUVANANTHAPURAM - 695 020.

            R1 & R2 BY ADVS. VAISAKHI V
                             BABU KARUKAPADATH(B-13)
                             M.A.VAHEEDA BABU(V-4)
                             P.U.VINOD KUMAR(K/647/2002)
                             ARYA RAGHUNATH(K/000474/2018)
                                T.M.MUHAMMED MUSTHAQ(K/000261/2018)
                                AJWIN P LALSON(K/001394/2018)
                                KARUKAPADATH WAZIM BABU(MAH/8319/2019)
                                P.LAKSHMI(K/001868/2021)
                                AISWARYA ANN JACOB(K/001838/2021)

            R3 & R7 BY ADV. G.SREEKUMAR (CHELUR)




     THIS    FIRST    APPEAL   FROM       ORDERS    HAVING   COME   UP   FOR
ADMISSION    ON   31.08.2022,     THE       COURT    ON   THE   SAME     DAY
DELIVERED THE FOLLOWING:
  FAO NO. 94 OF 2022

                                       3

                                                                         CR
                             JUDGMENT

This appeal came up for hearing today.

Heard both sides. The dispute is pertaining to

alleged infringement of trade mark and name of

Raja Biri and Raja Bidi.

2. The preliminary objection raised that the

appeal will not stand as there is no provision for

it against an ex parte interim order cannot be

sustained in view of the legal position settled by

the Apex Court in A.Venkatasubbiah Naidu v.

S.Challappan and Ors. (AIR 2000 SC 3032).

3. Before issuance of notice to the

defendants/counter petitioners, an ex parte ad

interim injunction was granted restraining the

defendants from doing their business. The suit was

filed on 31/05/2022. Interim ex parte injunction

was granted on 01/06/2022 before issuing notice to

the appellants/counter petitioners. The

defendants/appellants entered appearance and filed FAO NO. 94 OF 2022

their counter on 27/06/2022. But, the matter was

not heard on merit within the time schedule of 30

days. It was adjourned to 02/7/2022 and then to

13/07/2022. The appellants/defendants hence filed

an application for early hearing under Order XXXIX

Rule 3 A C.P.C.. But in spite of the said

application, the matter was not heard on merit.

The trial court in the meanwhile appointed a

Commission to collect the materials belonged to

the defendants supplied to various shops and

afforded police protection to the Commissioner.

The Commissioner in turn collected all the

materials belonged to the defendants supplied to

various shops, with police protection and thereby

the trial court has implemented the interim ex

parte injunction granted without notice to the

counter petitioners, who are the appellants

herein.

4. It is submitted that the trial court is

well within the jurisdiction of granting even an

ex parte ad interim injunction without notice to FAO NO. 94 OF 2022

the counter petitioners/appellants by virtue of

Section 135 of the Trade Marks Act, 1999, which is

extracted below for reference:

"Relief in suits for infringement or for passing off (1) The relief which a court may grant in any suit for infringement or for passing off referred to in section 134 includes injunction (subject to such terms, if any, as the court thinks fit) and at the option of the plaintiff, either damages or an account of profits, together with or without any order for the delivery-up of the infringing labels and marks for destruction or erasure.

(2) The order of injunction under sub- section(1)may include an ex parte injunction or any interlocutory order for any of the following matters, namely:--

(a) for discovery of documents;

(b) preserving of infringing goods, documents or other evidence which are related to the subject-matter of the suit;

(c) restraining the defendant from disposing of or dealing with his assets in a manner which may adversely affect plaintiff's ability to recover damages, costs or other pecuniary remedies which may be finally awarded to the plaintiff. (3) Notwithstanding anything contained in sub-section(1), the court shall not grant relief by way of damages (other than nominal damages) or on account of profits in any case--

(a) where in a suit for infringement of a trade mark, the infringement complained of is in relation to a certification trade mark or collective mark; or FAO NO. 94 OF 2022

(b) where in a suit for infringement the defendant satisfies the court--

(i) that at the time he commenced to use the trade mark complained of in the suit, he was unaware and had no reasonable ground for believing that the trade mark of the plaintiff was on the register or that the plaintiff was a registered user using by way of permitted use; and

(ii) that when he became aware of the existence and nature of the plaintiff's right in the trade mark, he forthwith ceased to use the trade mark in relation to goods or services in respect of which it was registered; or

(i) that at the time he commenced to use the trade mark complained of in the suit, he was unaware and had no reasonable ground for believing that the trade mark for the plaintiff was in use; and

(ii) that when he became aware of the existence and nature of the plaintiff's trade mark he forthwith ceased to use the trade mark complained of."

(emphasis supplied)

5. The scope of grant of ex parte injunction

under Section 135 of the Act is limited to the

matters enumerated under clauses (a) to (c) of

sub-section (2), subject to the exception carved

out under sub-section (3) of the Act. Admittedly,

the interim order granted would not come under the

purview of clause (a) or (b) of Section 135(2) of FAO NO. 94 OF 2022

the Act. It is submitted that it is by virtue of

clause (c) of Section 135(2), an ex parte ad

interim injunction was granted by the trial court.

But clause (c) of Section 135(2) of the Act, can

be applied only for the purpose of preserving the

property and assets of the defendant as a

precautionary measure so as to satisfy the

damages, costs or pecuniary remedies that may be

awarded in the suit. The purpose of Section 135(2)

before judgment under Order XXXVIII Rule 5 C.P.C..

It is for the purpose of preserving and protecting

the interest of the plaintiff and the award that

may be passed for payment of damages, costs and

other pecuniary remedies, the property of the

defendant or his assets can be preserved and

protected by way of an ad interim injunction and

not for the purpose of preventing any violation of

passing off or infringement. The order of

injunction granted by the trial court for

preventing sale of goods belonged to the defendant FAO NO. 94 OF 2022

in contravention of alleged trade mark or name and

by collecting the goods by appointing a

Commission, would not come under the purview of

Section 135(2)(c) of the Act. There is only a

limited scope under Section 135 of the Trade Marks

Act to grant interim injunction and it should be

pertaining to the matters incorporated in clause

(a) to (c) of Sub-Section (2) of that section. It

cannot have any exhaustive application. Hence, the

court must be more vigil and cautious while

granting an ad interim injunction without notice

to the counter petitioner/defendant. It would be

too adventurous to implement an ex parte ad

interim injunction order passed without notice to

the defendants/counter petitioners.

6. Yet another interesting question is also

involved in the present case as to whether an ex

parte ad interim order of injunction can be

executed through the court by exercising

jurisdiction under Section 36 of C.P.C. and

whether it can be treated in par with an order FAO NO. 94 OF 2022

passed on its merits after hearing both the

parties or an ex parte order, in which one of the

parties remained ex parte after notice. There is

lot of confusion in the user of the word "ex

parte" to an ad interim injunction granted before

issuance of notice to the counter petitioner under

Order XXXIX C.P.C.. Rule 3 of Order XXXIX C.P.C.

says that before granting ad interim injunction,

court has to issue notice to the opposite party.

It is by virtue of the proviso attached to Rule 3,

the court can issue interim injunction without

giving notice to the opposite party, for which

reason should be stated. An order of ad interim

injunction granted under the proviso to Rule 3

without giving notice of the application to the

opposite party would also be an "ex parte" order

though normally the said expression is used to

refer orders or decree passed in the absence of

opposite party. In fact, the expression "ex parte"

stands for and signifies something done or said by

one person, not in the presence of his opponent. FAO NO. 94 OF 2022

This term is applied in law to refer any order or

a decree that was passed in the absence of the

opposite party. It is laid down by the High Court

of Madras in Gorakonda Venkatasubbiah v.

Deliparthi Lakshminarasimham (AIR 1925 Mad.1274)

that the term "ex parte" merely means "in the

absence of other party", to which the Apex Court

had given approval in Sangram Singh v. Election

Tribunal, Kotah (AIR 1955 SC 425). An ex parte

decree stands for a decree granted by the court on

the basis of evidence of plaintiff due to the non-

appearance of contesting defendant. The provisions

contained in C.P.C. to set a party ex parte and to

set aside ex parte also proceeds on the very same

pedestal and hence it can be safely concluded that

the expression "ex parte" stands for a decision

taken by a court or Judge or a Tribunal in the

absence of other party. An ad interim injunction

granted without notice to the respondent would

also come under the purview of "ex parte" order.

This would make the position clear that the term FAO NO. 94 OF 2022

"ex parte" stands for an order passed or a decree

passed in the absence of other party. There may be

atleast two occasions in the larger sense for

passing an ex parte order i.e. (i) without issuing

notice to the opposite party including an order

passed under the proviso attached to Rule 3 of

Order XXXIX C.P.C. and (ii) after issuing notice

to the opposite party, who remained absent in

spite of notice. If the absence is without any

lawful excuse, the ex parte order or decree would

stand binding on the opposite party. In the

latter case, every order passed after affording

opportunity of being heard would stand binding on

the opposite party. But in the former case, it may

not have any such binding force on the opposite

party, since it is deprived of "audi alteram

partem" - the right to be heard, which is the

fundamental requirement in the legal parlance to

make it binding on the parties. The only

exception to this fundamental principle is with

respect to administrative matter when there is no FAO NO. 94 OF 2022

occasion for causing prejudice to the opposite

party, and also in the exercise of legislative

authority. But if it is pertaining to judicial or

quasi judicial functions, being exercised under

any legislative authority, it requires the

compliance of the noble principle, audi alteram

partem based on natural justice. But at the same

time, though the ex parte order passed without

notice would not have any binding force, being an

order issued by a competent court or authority, it

shall be respected and honoured till it was merged

in the final order after notice to the opposite

party. The "right to be heard" in the legal

parlance especially in litigation is the most

valuable right, which cannot be defeated in any

manner except on the default of the opposite

party. The principle behind the maxim "audi

alteram partem" is well recognised and adopted in

the judicial system as one of the fundamental

guiding principles. The Apex Court in Nawabhkhan

Abbaskhan v. State of Gujarat (AIR 1974 SC 1471) FAO NO. 94 OF 2022

had laid down that it is obligatory on the part of

the judicial authority to hear, expressly or by

implication by giving an "opportunity to be heard"

as a natural justice, otherwise, the impugned act

or order was never valid. But, it may not have any

application, where the authority is acting in

exercise of the legislative powers (Tulsipur Sugar

Company Ltd. v. Notified Area Committee (1980) 2

SCC 295). The Apex Court in Union of India v.

Tulsi Ram Patel [(1985) 3 SCC 398] had emphasised

the importance of "right to be heard" and laid

down the law that the "audi alteram partem" rule

in its fullest amplitude means that a person

against whom an order to his prejudice may be

passed, should be informed of the allegations and

the charges against him, be given an opportunity

of submitting his explanation thereto, have the

right to know the evidence, both oral or

documentary, by which the matter is proposed to be

decided against him. The Apex Court in Union of

India v. W.N.Chadha (AIR 1993 SC 1082) has FAO NO. 94 OF 2022

discussed the application of said rule in

administrative law in the following lines:

"The rule of audi alteram partem is a rule of justice and its application is excluded where the rule will itself lead to injustice. There is exclusion of the application of audi alteram partem rule to cases where nothing unfair can be inferred by not affording an opportunity to present and meet a case. This rule cannot be applied to defeat the ends of justice or to make the law "lifeless, absurd, stultifying and self defeating or plainly contrary to the common sense of the situation" and this rule may be jettisoned in very exceptional circumstances where compulsive necessity so demands.

The fact that a decision, whether a prima facie case has or has not been made up, is not by itself determinative of the exclusion of hearing, but the consideration that the decision was purely an administrative one and a full fledged enquiry follows is a relevant - and indeed a significant - factor in deciding whether at that stage, there ought to be hearing which the statute did not expressly grant.

The rule of audi alteram partem is not attracted unless the impugned order is shown to have deprived a person of his liberty or his property."

7. Necessarily, 'right to notice' for

affording "right to be heard" is an indispensable

right, which would be the very basis of binding FAO NO. 94 OF 2022

force of any order or decree that may be passed

on the respective parties including the opposite

party. In short, what actually governs a "binding

force" or "binding nature" is really resting on

the "right to be heard" and not on the authority

or jurisdiction vested with any court in the

matter of issuance of any ad interim order or

precautionary measure, without notice to the

opposite party or to the person who will stand

prejudiced by the order affecting his interest.

But there shall not be any misunderstanding with

the jurisdiction of the court to pass

orders/directions, to summon a document or a

witness and it shall not be placed in par with any

adjudicatory order or decree. The orders, which

were issued before giving notice to the opposite

party or without affording a right of hearing

though would fall under the category of ex parte

order, the legal consequences that may flow out of

the said orders is quite different from that of an

order or an ex parte decree passed after notice to FAO NO. 94 OF 2022

the opposite party, which is capable of execution

in terms with Section 36 and Order XXI of C.P.C..

This might be the reason why the legislature has

incorporated provision for dealing with the issue

regarding violation/disobedience of ex parte ad

interim orders under Rule 2 A of Order XXXIX

C.P.C.. An order passed without issuing notice to

the opposite party hence cannot be brought under

the purview of Section 36 C.P.C. and it cannot be

executed through court until the same is merged in

a subsequent order after notice to the opposite

party. As discussed earlier, the binding force or

the binding nature of any order or decree is

resting on the principle of "right to be heard"

and notice thereof. When there is default on the

part of the opposite party to appear and answer,

the consequent order passed ex parte would stand

binding upon him, but when no notice was issued

and no opportunity of hearing was given, the ex

parte orders passed either by way of ad interim

injunction or otherwise would fall under the ambit FAO NO. 94 OF 2022

of Order XXXIX Rule 3 A C.P.C. and for violation

of the order, the opposite party can be

prosecuted. It is not permissible to treat an ex

parte order of ad interim injunction granted

before notice to opposite party under the proviso

to Rule 3 of Order XXXIX C.P.C.. in par with other

ex parte orders/decree. The question of

implementation of an ad interim injunction can be

done only after making it absolute after service

of notice to opposite party. Then only, it will

get a binding nature on the respective parties.

Till that time, it cannot be executed through the

court either under Section 36 or under Order XXI

C.P.C., but the court can prosecute the opposite

party for its violation under Order XXXIX Rule 2 A

C.P.C..

8. Strange enough, the court below had

implemented the ex parte ad interim injunction

passed before issuance of notice to the party by

appointing a Commissioner and by giving police

protection without hearing the counter FAO NO. 94 OF 2022

petitioners/defendants, though they have entered

appearance and filed their counter. It is a naked

violation of the mandate under sub-section (3) of

Section 135 of the Trade Marks Act, besides the

mandate under Order XXXIX Rule 3 A C.P.C.. The

matter was not heard by the trial court in spite

of an application submitted for early hearing and

even after the lapse of 30 days and thereby

violated the mandate under Order XXXIX Rule 3 A

C.P.C. and it would fall under the mischief

recognized by the Apex Court in A.Venkatasubbiah

Naidu v. S. Challappan and Ors. (AIR 2000 SC

3032). The relevant portion of the judgment is

extracted below for reference:-

" 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 FAO NO. 94 OF 2022

cases, the appellate court, apart from granting or vacating or modifying the order of such injunction, may suggest suitable action 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."

9. Further, in a matter of alleged

infringement of or passing off trade mark or trade

name, the court should be more cautious and

vigilant while passing ex parte interim orders by

virtue of Section 135 of the Trade Marks Act. An

injunction can be granted only pertaining to the

matters included in clause (a) to (c) to sub-

section (2) of Section 135 of the Trade Marks Act.

While ordering ad interim injunction and ex parte

ad interim injunction, the court must be more

vigilant and cautious about the exception carved

out under sub-section (3) and there should be a

prima facie satisfaction that the matter would not FAO NO. 94 OF 2022

fall under the exception so carved out, besides

the grounds available for exercise of jurisdiction

under sub-section 2 of Section 135 of the Act. An

ad interim injunction shall not be granted in

derogation of the right of opposite party. The

exercise of jurisdiction to issue an ex parte ad