THAKKER, J.

(1). Admit. MRule A. L. Shah, learned Advocate appearing on caveat for the plaintiffs waives service of the notice. In the facts and circumstances of the case, the appeal is taken up for final hearing today.

(2). This appeal is filed against an ex-parte order passed by the Assistant judge, Baroda on 3/04/1992, granting ad-interim relief in favour of the plaintiffs under the provisions of Order 39 Rule 3 of the Code of Civil procedure, 1908 (hereinafter referred to as the Code).

(3). To appreciate the rival contentions of both the parties, few relevant facts may now be stated. The plaintiffs filed a Suit in the District Court, baroda, being Special Civil Suit No. 1 of 1992, for permanent injunction restrainirg the defendant from using in any manner, in relation to pharmaceutical or medicinal preparations, the impugned trade mark CLOFRANIL or any other distantly similar trade mark so as to infringe the trade mark registered in favour of the plaintiff No. 1, bearing No. 233145 under the style of anafranil. Along with the plaint, the plaintiffs file an application Exh. 5 for interim relief. It appears that the learned Assistant Judge, after hearing the learned Counsel for the plaintiffs and after perusing documents and affidavit, passed the following order :

"ad-interim injunction is granted. Defendant is restrained from using in any manner, in relation to pharmaceutical or medicinal preparations, the impugned trade mark CLOFRANIL till 21-4-1992. Show cause notice be issued to the defendants returnable on 24-4-1992. Urgent process and notice be issued. "

It is against that order the present appeal is filed by the defendant in this court.

(4). MRule K. G. Vakharia, Senior Advocate appearing with MRule Y. J. Trivedi, for the appellant submitted that the order passed by the trial Court granting ex-parte ad-interim relief, without issuing notice to the present appellant is contrary to law, without jurisdiction and requires to be quashed and set aside. He submitted that on merits CLOFRANIL and ANAFRANIL are entirely distinct and the point is concluded in a number of decisions of the Supreme Court as well as this Court. He also submitted that, if ex-parte ad-interim relief is continued, irreparable injury and loss would be caused to the appellant, inasmuch as the defendant has not only started manufacturing the drug in question, but has also put it in market for sale and since last more than one month, sale is going on. He, therefore, submitted that, not only the trial Court should be directed to hear and dispose of the matter (Exh. 5)immediately, but the order granting ex-parte ad-interim injunction should also be suspended till the disposal of application Exh. 5.

(5). MRule G. N. Desai, learned Counsel appearing with MRule A. L. Shah for the plaintiffs, on the other hand, supported the order passed by the trial Court, inter alia. contending that the appeal filed by the appellant against an order granting ex-parte ad-interim relief, is not maintainable at law, since the order is passed by the Court under Rule 3 of Order 39 of the Code. Alternatively, he submitted that even if the appeal filed by the appellant is maintainable, as held by the division Bench of this Court in the case of Patel Jasmat Sangaji v. Gvjarat electricity Board and Ors. , reported in [1982 (2)] XXIII (2) GLR 104, this Court may not exercise its appellate jurisdiction, since according to him, this cannot be said to be a "rarest of rare case", which requires interference at this stage. On merits, he submitted that the test which is sought to be applied by the learned Counsel for the appellant is not a proper one and on merits, he would be in a position to satisfy the Court that infringement of trade mark has been committed by the defendant. He further submitted that the Court, undoubtedly, has jurisdiction to grant ex-parte ad-interim relief, if it is satisfied for the same and reasons are recorded to that effect, as contemplated by the proviso to Rule 3 of Order 39. He, however, submitted that the plaintiffs have no objection to proceed with the hearing of application, Exh. 5 even before that period, if this Court directs the trial Court to dispose of the matte Rule But he submitted that when ad-interim relief is granted in favour of the plaintiffs and is in operation, during the intervening period, it may not be vacated.

(6). I have anxiously considered the submissions made by the rival parties. At the outset, I make it clear that I am not expressing any opinion on merits inasmuch as, not only the suit is pending before the trial Court, even application exh. 5 is also not disposed of and some observations here and/or there, may cause prejudice to either party. It is for the trial Court to decide application exh. 5, after appreciating the facts and circumstances of the case on its own merits.

(7). Regarding maintainability of appeal, I am of the opinion that, when the trial Court passes an Order under Rule 3 of Order 39 of the Code, even without issuing notice to the opposite party, nonetheless it can be said to be an order under Rules 1 and 2 of Order 39 of the Code and appeal under Order 43, Rule 1 (r) is maintainable and the point is concluded by a decision of the Division Bench of this Court in Patel Jasmat Sangajis case (supra). I am in respectful agreement with the said decision. Therefore, the appeal is maintainable even against an ex-parte ad-interim relief granted by the trial Court. It is undoubtedly true that as per the ratio laid down therein, only in exceptional cases or in "rarest of rare cases", such an appeal may be entertained by the appellate Court. There are, however, cases and cases. My attention has been invited by the learned Counsel for the appellant to certain decisions of this Court wherein, against ad-interim orders, not only appeals have been entertained, but they were allowed by this Court. Therefore, the present appeal filed by the present appellant against ex-parte ad-interim relief is indeed maintainable.

(8). In the facts and circumstances of the case, I am constrained to observe that there was undue haste on the part of the learned Judge in granting ex-parte ad-interim relief against the defendant. As stated in the plaint itself, the plaintiffs came to know about the fact of intention of the defendant to manufacture and sell of its product under the mark CLOFRANIL "in or about February, 1992". (vide plaint, para 13). Now, the suit is filed as late as on 3/04/1992. The defendant carries on its business at Baroda only. I am, therefore, clearly of the view that before passing any ad-interim order ex-parte against the defendants, the Court ought to have issued notice by making it returnable immediately. The matter, however, does not end there. The Court not only granted ex-parte ad-interim relief against the defendant on the same day but made the notice returnable after 21 days. This action is indeed not justified in the facts and circumstances of the case. I feel that even if the trial Court was satisfied that there was urgency of such a nature, that ex-parte ad-interim relief was required to be granted without issuance of notice to the opposite party, I am clearly of the opinion that the trial Court ought not to have made it returnable after the period of 3 weeks, i. e. , on 24/04/1992. There may be certain cases, wherein urgent orders are required to be passed, even without hearing the other side, if justice demands it. But in such case, the Court must always bear in mind the position of the opposite party also. The order is passed by the Court at Baroda and the defendants address as mentioned in the plaint is of Baroda. In these circumstances, ordinarily, the court ought to have issued notice to the other side by miking it returnable immediately and only after hearing the other side that application for interim injunction should have been decided. However, if the Court was of the opinion that ex-parte ad-interim order was required to be pissed under the proviso to Rule 3 of Order 39 of the Code, the notice should have been made returnable immediately and not after 21 days as has been done in the instant case.

(9). The learned Counsel for the appellant states that the defendant will file his reply to Exh. 5 application on 13/04/1992. The learned Counsel for the plaintiffs states that if the plaintiffs desire to file any reply, they will do so on or before 16/04/1992 and will go on with the matteRule The trial court is directed to hear and dispose of the matter (Exh. 5) immediately after hearing the parties on 16/04/1992 or latest by 18/04/1992. Though, prima facie, I am of the opinion that the trial Court ought not to have granted ex-parte ad-interim relief, in the facts and circumstances of the case and in due deference to the Court, at this stage, I am not suspending it. I may, however, make it clear that ex-parte ad-interim order granted earlier and impugned in this appeal would remain operative up to 18/04/1992, by the date on which the trial Court will decide the matte Rule

(10). The learned Counsel for the plaintiffs states that the plaintiffs will not ask for time and will go on with the hearing of application Exh. 5, even on 16/04/1992. If the matter is not finally disposed of as stated above due to default on the part of the plaintiffs, ad-interim relief will stand vacated after 18/04/1992. If for any other reason, the matter is not finally disposed of by that time, the Court will pass appropriate order regarding continuation or otherwise of ad-interim relief after hearing both the parties.

(11). In the result, the appeal is partly allowed and the order passed by the trial Court is modified accordingly. There will be no order as to costs. Liberty to apply in case of difficulty.