Indermeet Kaur, J.

CAV No. 595/2012

Caveator has appeared. Caveat stands discharged.

CM(M) 702/2012 & CM Nos.10616-18/2012

1 Impugned order is dated 28.04.2012; the trial Court which had granted an ex-parte injunction in favour of the plaintiff on 07.04.2012 on his application under Order XXXIX Rules 1 & 2 of the Code of Civil Procedure (hereinafter referred to as the Code) had set aside this conditional order holding that compliance under Order XXXIX Rule 3 of the Code has not been made. Record shows that the present suit is a suit for permanent injunction, infringement and passing of; the petitioner claims himself to be the registered owner of the trademark/trade name POLO/POLO RALPH LAUREN; his contention is that the defendants are using the impugned trademark/label CLASSIC POLO and Device of Polo Player which is infringing the trademark of the plaintiff.

2. Certain dates are relevant. On 07.04.2012, an ex-parte order was passed in favour of the plaintiff on his application under Order XXXIX Rules 1 & 2 of the Code; the defendant was restrained till the next date of hearing from dealing with the aforenoted trademark/label which the defendant was using and which as per the plaintiff was infringing his trademark/trade name. This order was passed subject to the compliance of Order XXXIX Rule 3 of the Code which compliance has to be effected within one week. On 27.04.2012, the plaintiff had moved an application seeking clarification in the order as there appeared to be an error in the mark described of the defendant which had been described as POLO RALPH LAUREN instead of CLASSIC POLO and Device of Polo Player. The Local Commissioner had been intimated about the order dated 07.04.2012 where again the wrong name of the trademark/trade name of the defendant had been mentioned. This rectification was informed by a subsequent letter to the Local Commissioner only on 10.05.2012; it is also not in dispute that on 18.05.2012 and 19.05.2012 when the Local Commissioner had gone to visit the premises of the defendant, he could not execute the local commission. On 21.05.2012, the plaintiff had moved two applications before the trial Court; first application had sought amendment in his plaint whereas the second application had sought extension of time for compliance of provisions of Order XXXIX Rule 3 of the Code; contention being that compliance of Order XXXIX Rule 3 of the Code could not be effected only for the reason that there was an error which had crept in the order dated 07.04.2012 for which an application had been filed seeking its rectification but was taken up subsequently on 28.04.2012.

3. Submission of the petitioner is that the whole purpose of the appointment of the Local Commissioner would have been defeated if the defendant would have known of this ex-parte order which had been passed in favour of the plaintiff and it was in these circumstances that compliance of Order XXXIX Rule 3 of the Code could not be made within the time span given in the order dated 07.04.2012.

4 The counter submission of the learned counsel for the respondent is that the impugned order had vacated the conditional stay also for the reason that there was suppression of material fact by the plaintiff; attention has been drawn to the order dated 28.04.2012 wherein this submission of the defendant has been noted but the interim relief granted on 07.04.2012 had been vacated only for the reason that there was no compliance of Order XXXIX Rule 3 of the Code within time span afforded; primarily this was because of the error in the order of the Court dated 07.04.2012 and this was a glaring error which needed to be corrected.

5 Admittedly the application under Order XXXIX Rules 1 & 2 of the Code is yet pending before the trial Court. It is also not the case where the defendant had moved an application under Order XXXIX Rule 4 of the Code. In this background, interim relief granted in favour of the plaintiff on 07.04.2012 is restored. Petition disposed of.