1. This is an appeal filed under Order XLIII of the Code of Civil Procedure from order dated 29.11.2022 passed by the learned District Judge, granting an exparte order of temporary injunction in CSTMA No.05/2022. The appellant is the original defendant in a suit filed by the respondent/original plaintiff claiming that the appellant has infringed its registered trade mark “SCHEZWAN CHUTNEY”.

2. The respondent claims that it has been engaged since 1995, through itself or through its predecessor, in the business of manufacturing and selling food products ranging from sauces, sauce mix, noodles, soups, garlic and ginger paste, dressings, spreads, etc under its well-known trade marks such as “SCHEZWAN CHUTNEY, CHING’S, CHING’S SECRET, SMITH AND JONES, RAJI etc. It is further the plaintiff’s case that its products are sold and rendered under its well-known and famous brands, which are known for the high quality and hygienic standards that meet the changing need and tastes of the consumers. The plaintiff further contends that in an around in the year 2012 it independently conceived and adopted the mark “SCHEZWAN CHUTNEY”, which is derived from, and is a unique and distinctive combination of the words SCHEZWAN and CHUTNEY in respect of a hot, spicy and peppery sauce/dip having unique proprietary recipe and taste profile, developed by the plaintiff as a part of its DESI CHINESE product portfolio, after significant amount of research ; it is their case that their product is different from and not to be mistaken as a “SICHUAN SAUCE”. The plaintiff contends that no other entity was using the mark “SCHEZWAN CHUTNEY” or marks similar thereto for identical or similar products, and this being the case, the plaintiff applied for a registration of the mark, and became the registered proprietor of the mark “SCHEZWAN CHUTNEY” (word per se) under No.2431851 in Class 30, which registration is valid and subsisting with the trade marks registry under the Trade Marks Act, 1999 (the Act).

3. On the basis of the claim to the registered mark, the plaintiff claims that it has a sizeable market share for its products. The plaintiff claims to have been vigilant in protecting its intellectual property rights to the registered trade mark and has initiated action from time to time in respect of its violation by issuing notices, take down requests and filing suits to restrain infringers of the mark by securing orders of restraint from various Courts.

It is the plaintiff’s case that in recent months prior to the filing of the suit on 05.11.2022, it came across dips, sauces, spreads and the like products marketed by and manufactured or offered for sale by the defendant/appellant before this Court, bearing the mark “SCHEZWAN CHILLY CHUTNEY”, containing the registered trademark of the plaintiff. It is the plaintiff’s case that the impugned mark is being misused by the defendant by writing the same in an identical font as “SCHEZWAN CHUTNEY” mark of the plaintiff and representing the same in an identical manner i.e. “SCHEZWAN” above and the word “CHUTNEY” below. That further, the impugned products are being sold by the defendant in bottles which are an imitation of and are deceptively similar to the distinctive trade dress and bottles of the plaintiff, including an identical shape, size, contour, level of opaqueness, configuration and cap as those in which the plaintiff sells its products. That a comparison of the plaintiff’s mark with the impugned mark, any potential purchaser of a product would be confused due to the deceptive similarity between the two marks and would buy the defendant’s products with the impugned mark, leading to a huge loss to the plaintiff. On these averments, the plaintiff sought a decree of perpetual injunction against the defendant from infringing in any manner the “SCHEZWAN CHUTNEY” trademark of the plaintiff bearing No.2431851 in any manner, and from using in relation to any of the impugned products or goods for which the registered marked is used by the plaintiff, and from manufacturing, selling, offering for sale or advertising such goods bearing the impugned mark. The plaintiff also sought an order of permanent injunction against the directors, partners, stockists, dealers and agents of the defendant from manufacturing, marketing, selling, advertising or offering for sell the impugned products, and for the further decree to deliver up for destruction all the defendant’s impugned products, goods, dies and material used in connection with the manufacturing of the impugned products. In addition to the orders of permanent restrained as above, the plaintiff also sought a decree in the sum of Rs.2,75,000/- by way of damages claimed from the defendant or in the alternative that the defendant render true and faithful accounts of all the profits earned by using or selling the impugned products and to pay to the plaintiff such amounts.

The plaintiff also sought interim relief and ad-interim relief of a temporary injunction in terms of prayer clause (a), (b) and (c) of the plaint. There was no prayer made for any ad-interim exparte injunction.

4. The records reveal that after the plaint was lodged before the District Court, South Goa on 05.11.2022, the trial Court passed the impugned order dated 29.11.2022 granting the plaintiff’s interim relief in terms of prayer clause (d) of the application for temporary injunction restraining the defendant from using the trademark “SCHEZWAN CHUTNEY” pending the hearing and final disposal of the suit. It is this order that the defendant/appellant herein takes exception to on various grounds urged in the memo of appeal and during the course of the hearing of the appeal.

5. The parties have consented to hearing of the appeal finally at the stage of admission. Accordingly, the appeal was heard and is being finally disposed of.

6. Heard Mr. Kantak, learned Senior Advocate appearing for the appellant and Mr. Kamod, learned Advocate for the respondent.

7. Perused the record of the appeal, the plaint and all annexures thereto, produced with the record of the appeal.

8. The main contentions of the appellant are as under ;

"(a) That the trial Court whilst passing the impugned orders has acted in contravention of the provisions of the Order XXXIX Rule 3 of the CPC, in that it has not recorded any reasons in the impugned order, as mandated by the said provisions, as to why it has departed from the rule of issuing notice to the defendant before hearing the matter, and has instead, granted the ad-interim order of injunction without notice to the defendant.

(b) That the trial Court has not recorded, as mandated by the provisions of Order XXXIX Rule 3 of the CPC, the reasons why the delay in grant of notice, which is the rule would defeat the purpose of filing the application for temporary injunction and

(c) That in any event, the grant of an order of temporary injunction without notice to the defendant could not be made returnable beyond the period of 30 days in contravention of the provisions of Order XXXIX Rule 3 of the CPC, and in this case, the trial Court has not only made the date of notice returnable beyond the period of 30 days, but has further, contrary to the provisions of Order XXXIX Rule 3 of the CPC, by making the order of temporary injunction granted exparte operated indefinitely until the disposal of the suit.

(d) That the plaintiff not having prayed for any exparte relief of temporary injunction in its application, the trial Court could not have granted the relief exparte, more so in the light of the facts that the plaint was verified at Mumbai on 02.11.2022, filed on 05.11.2022 before the District Court, was heard without notice to the defendant on 08.11.2022 and then reserved for orders until 29.11.2022, when the exparte order of injunction was finally granted."

9. Opposing these submissions, the respondent has submitted that :

"(a) That if this Court arrives at a conclusion that the impugned order ought to have been operative until notice to the defendant was served within 30 days as mandated by Order XXXIX Rule 3 of the CPC, this Court would restrict the operation of the impugned order till the returnable date 05.01.2023, and to that extent, the impugned order could be modified and brought in consonance with the provisions of Order XXXIX Rule 3 of the CPC.

(b) That the reading of the impugned order as a whole clearly records the conclusion of the plaintiff having made out of prima facie case, in that the trial Court records that the plaintiff is the owner of the trademark and that prima facie there appears to be infringement since the defendant’s products are being sold under a mark similar to that of plaintiff ; that in this view, the predicates of a grant of temporary injunction are clearly made out in the impugned order itself and there would be no cause for this Court to interfere with the discreation exercised by the trial Court under Order XLIII of the CPC.

(c) That the appellant has a remedy by approaching the trial Court on the returnable date with an application for modification or to vacate the impugned order by filing its written statement and opposed the continuation of the impugned with proceedings under Order XXXIX Rule 4 of the CPC ; that filing of an appeal under Order XLIII of the CPC should not be a course entertained by this Court, since the correct course to be adopted would be to request for vacation of the impugned order before the trial Court and to hear the application for temporary injunction on merits."

10. Mr. S.S. Kantak, learned Senior Advocate appearing for the appellant argues that it is a requirement of Order XXXIX Rule 3 of the Code of Civil Procedure that the Court in all cases issue notice to the opposite party before grant of a temporary injunction. The exception to this Rule would be only when the Court specifically records reasons to depart from the rule and refers in its order to the material which form basis for its conclusion that the object of granting injunction would be defeated by delay in service of notice. He submits that a perusal of the impugned order would disclose that the trial Court has recorded no reasons for departing from the rule. He further submits that in the present case, the plaint was verified at Mumbai on 02.11.2022, lodged before the Court at Margaon on 05.11.2022 and moved for hearing of the application for injunction on 08.11.2022. On this basis itself, he submits, that having taken six days for moving the Court, there was no reason for the trial Court to depart from the rule of issuing notice to the defendant. It is further his submission that the application for temporary injunction was heard in the absence of the defendant on 08.11.2022, after which the Court reserved its order for grant of an exparte temporary injunction, adjourning the application on 18.11.2022 and 29.11.2022 for reasons that its order was not ready, and on 07.12.2022, it granted ad-interim exparte relief of temporary injunction. He submits that more than 30 days having lapsed from the date of filing of the application for temporary injunction, on the face of it, the trial Court ought to have issued notice and followed the general rule rather than exception.

11. The learned Senior Advocate further submits after having not recorded the reasons for forming an opinion as to why it proposed to grant an injunction without notice to the defendant, the trial Court has further acted contrary to Rule 3-A of Order XXXIX of the CPC, by directing the notice on the application to be made returnable beyond the period of 30 days from the date on which the exparte order of injunction was granted; he further elaborates that the mandate of Rule 3-A of Order XXXIX requires that where injunction has been granted without giving notice to the defendant, the provision mandates that the Court shall endeavour to finally disposed of the application within 30 days from the date on which the exparte injunction was granted.

12. In the present case, the notice of temporary injunction was made returnable on 05.01.2023, though the order is operative until the disposal of the suit. Such an order, he submits is totally unsustainable at law.

13. It is further argued by the appellant that no relief of exparte temporary injunction has been claimed, in the application filed under Order XXXIX Rule 1 & 2 of the Code of Civil Procedure, and this being the case, the trial Court ought not to have granted any relief to the plaintiff. To buttress his submissions, Mr. Kantak, learned Senior Advocate, makes a reference to the judgments of the Hon’ble Supreme Court in the case of Shiv Kumar Chadha Vs. Municipal Corporation of Delhi and Ors., (1993) 3 SCC 161, Morgan Stanley Mutual Fund Vs. Kartick Das (1994) 4 SCC 225 and A. Venkatasubbiah Naidu Vs. S. Chellappan and Ors., (2000) 7 SCC 695. He submits that in Shiv Kumar Chadha (supra) the Hon’ble Supreme Court has specifically held that Rule 3 Order 39 of the CPC requires that in all cases the Court shall, before grant of an injunction direct notice of the application to the opposite party, and in exceptional cases, where it decides to depart from this rule and grant an exparte injunction without notice to the opposite party, the statute itself require reasons to be recorded by the Court granting such injunction for departing from the rule. He submits that the Hon’ble Supreme Court has held that the nature of the proviso to Rule 3 of Order XXXIX is imperative in nature and any order, such as the one passed by the trial Court which has far reaching effect, and which does not record its opinion for grant of an injunction without notice, is contrary to the mandate of Rule 3 of Order XXXIX of the CPC and cannot be allowed to operate further.

14. Mr. S. S. Kantak, learned Senior Advocate further submits that in Morgan Stanley Mutual Fund (supra), the Hon’ble Supreme Court has reiterated that, as a principle, an exparte injunction could be granted only in the exceptional circumstances, and the factors which should weigh in the Court’s mind while granting such exparte injunction are :

"(a) Whether irreparable or serious mischief willing to cheat to the plaintiff

(b) Whether refusal of exparte injunction would involve greater injustice than the grant of it would involve."

15. It was submitted that the trial Court in its order has not recorded any opinion on these two aspects, as is mandatory according to Morgan Stanley Mutual Fund (supra).

16. He further submits that in A. Venkatasubbiah Naidu (supra) the Supreme Court has specifically held that the language deployed in Rule 3-A of Order XXXIX of the CPC requires that the Court granting temporary injunction without notice to the opposite party, should pass final orders in such a matter within 30 days from the day on which, it was granted. It is further his argument that the Supreme Court, while considering a case where an exparte temporary injunction was granted without following the mandate of Rule 3 of Order XXXIX of the CPC, has held that such an order was open to an appeal, notwithstanding the pendency of an application for vacation of the temporary injunction before the trial Court. He further argues that the Hon’ble Supreme Court has held that the appellate Court shall be obliged to entertain the appeal and take note of the omission of a subordinate Court in compliance of the provisions of Rule 3-A and in appropriate cases may in addition to vacating or modifying that order, also suggest suitable action against erring of the Judicial Officer.

17. The learned counsel for the appellant further relied upon the judgment of this Court in the case of Golden Ocean Group Limited vs. Salgaonkar Mining Industries (Appeal Against Order No.14/2010 passed on 12.05.2010) wherein a challenge was laid to an exparte order of the Civil Judge, who granted the same without recording reasons for not granting notice. He took me through the contents of paragraphs 15, 16 & 17 of the judgment wherein the Single Judge of this Court whilst referring to A.Venkatasubbiah Naidu (supra) and Shiv Kumar Chaddha (supra) has held that where a civil Court has not recorded reasons for granting an application for temporary injunction in compliance with the proviso to Rule 3 of Order XXXIX of the CPC, the order would be required to be set aside.

He further places reliance upon unreported judgment of a Division Bench of the Karnataka High Court in the case of Smt. Supriya Shrinate vs. M/s.MRT Music and others (Commercial Appeal No.460/2022) passed on 08.11.2022, wherein the question raised was whether an appeal was maintainable against an exparte order of injunction passed under Order XXXIX Rule 3 of the CPC. The Karnataka High Court in this case whilst referring to Morgan Stanley Mutual Fund (supra) has held that when an exparte order is passed in non-compliance of the proviso to Rule 3 of Order XXXIX and without setting out the reasons and opinion as to why the Court was proceeding to grant an injunction without notice to the opposite side, is contrary to those provisions and is unsustainable.

18. Shri Kantak, learned Senior Advocate has further contended that the respondents had filed a Civil Suit (Commercial) No.379/2020, before the High Court of Delhi along with an interim application under Order XXXIX Rule 1 & 2 of the CPC, claiming a temporary injunction against the respondent therein, with exactly the same subject matter as the one before this Court. He contends that the respondent’s suit before the Delhi High Court sought a restraint order of similar nature against respondent from breach of the trade mark “SCHEZWAN CHUTNEY” and the same came to be rejected by order dated 16.09.2020. It is his case that the order dated 16.09.2020, was available to the respondent whilst lodging the plaint on 02.11.2022 but was not disclosed before the trial Court and this amounted to a suppression of material facts. He contends that if that order were considered by the trial Court, it would not have resulted in the grant of exparte temporary injunction which is impugned herein. On this count it is submitted that suppression of this material fact, disentitles the respondent to secure by the respondent in the impugned order.

19. Per contra, Shri Hiren Kamod, learned Advocate appearing for the respondent has submitted that this Court ought not to entertain an appeal under Order XLIII against the impugned order at this stage, more so in the light of the fact that the order was passed on 29.11.2022, and notice of the same was received by the appellant on 07.12.2022; the appellant chose to file this appeal only on 22.12.2022 when the returnable date on the notice issued by the trial Court was 05.01.2023. He submits that in those circumstances the proper course to be adopted by the appellant would be to file their written statement before the trial Court on 05.01.2023 along with an application under Order XXXIX Rule 4 of the CPC, requesting the trial Court to vary or set aside the impugned order and decide the application for temporary injunction on its merits.

20. He has further took me through the impugned order and submits that the trial Court at para 1 and 2 of the order has considered averments made in the plaint, the certificate of registration, and arrived at a prima facie opinion that the word “SCHEZWAN CHUTNEY” are exclusively associated by the consumers and the public at large with the plaintiff and that there is similarity as far in the name and picture between the bottles and of the printed products and that being sold by the defendant in the open market.

He further contends that though there is no opinion or reason set out in the impugned order as to why notice was not being issued to the opposite party and instead, an exparte injunction was being granted, such opinion is implicit in the order of the trial Court since it has recorded its satisfaction that a case was made out by the plaintiff to protect its interest till the pendency of the suit.

21. He relies upon the observations of the Supreme Court in paragraph 15 of the A.Venkatasubbiah Naidu (supra), submitting that where an order granting exparte interim injunction did not record reasons for departing from the general rule of issuing notice to the opposite party, such an order is by implication deemed to contain such requirement even though they are not stated in so many words. 

22. Shri Kamod, learned counsel for respondent further contends that in addition to the power of the Court to grant an order of temporary injunction under Order XXXIX of CPC, the provisions of Section 135 of the Trade Marks Act, 1999, itself empowers the Court to grant an exparte injunction or any interlocutory order without having to specifically record, opinions and reasons whilst departing from the rule of grant of notice before proceeding with such an application.

23. He took me through the plaint in CSTMA No.05/2022 and various averments made therein with regard to the registration of the mark claimed by respondent and its long presence in the market. He has also taking me through the application for temporary injunction and has submitted that though the relief clause in the said application does not claim an exparte ad-inteirm relief in terms of prayer clause A to C therein, the averments made in paragraphs 6 of the application clearly state that in the interest of justice, and for the reasons that the plaintiff apprehends that the defendant would destroy/conceal evidence of their wrongful acts of infringing the plaintiffs trade mark, the ad-interim relief should be granted exparte and notice to the defendant should be dispensed with.

24. As far as the allegation of suppression of the order of Delhi High Court refusing to grant ad-interim relief on the same subject matter as the present one to the respondent, the learned Advocate contended that the order of the Single Judge bearing Civil Suit No.379/2020 before the Delhi High Court rejecting the grant of ad-interim injunction was challenged in an intra Court Appeal bearing No. FAO(OS) COMM) 138/2020, before a Division Bench and by order dated 13.01.2022, the learned Single Judge was requested to dispose of the interim application expeditiously. He submits that the matter was fully argued, no orders have been passed on the I.A. No.8147/2020 till date. Consequently, there is no temporary injunction in that matter operating in terms of Order XXXIX Rule 1 & 2 of the CPC.

25. Mr. Hiren Kamod, learned counsel for respondent then contends that the provision laid down in Rule 3-A Order XXXIX of the CPC are directory and only enjoin the Court granting an injunction against the opposite party without notice, to make an endeavour to finally dispose of the application within 30 days from the grant of the order. He fairly concedes that since the trial Court has made the notice returnable on 05.01.2023, more than 30 days after it was passed, and the impugned order operates until the disposal of the suit, the same may be modified by this Court to operate until 05.01.2023, after which it shall be the prerogative of the trial Court to extend the same after hearing the appellant. He then refers to an order dated 10.03.2021 passed by the High Court of Bombay in original civil jurisdictional, in an Interim Application (L) bearing No.5290/2021, passed in (Commercial I.P. Suit (L) No.5286/2021) in Prince Pipes And Fittings Ltd. Vs. Prince Platinum Pipes and Fittings (A-Division of Vigor Plast India Pvt. Ltd.) & Ors., by which an exparte order to cease and desist was passed against the defendants to restrain them from using the impugned trade mark and to appoint a receiver in terms of Order XL Rule 1 of the CPC with respect to defendant’s goods. He contends that pursuant to issuance of a cease and desist notice to the defendants, it becomes imperative in matters of intellectual property rights to grant exparte orders of injunction, as a matter of course, provided the trade mark was registered and necessary averments to show its infringement were made in the plaint. He has also cited an order dated 20.07.2022 passed in an Interim Application (L) bearing No.21998/2022 in Com. IPR Suit (L) No.21993/2022 in Pidilite Industries Ltd. Vs. Laziq Trading Company, where an exparte order of temporary injunction was granted by a Single Judge of the Bombay High Court, after coming to finding that prima facie there was no manner of doubt that the defendants impugned marks were deceptively similar and almost identical with those of the plaintiffs.

He refers the observations made in paragraph 17 and 18 of that order where at the Court records that in matters such as this, where defendants blatantly violate the intellectual property rights of the plaintiff, delay, if any, cannot come in the way of the Court passing a prompt exparte order against the defendant to safeguard the plaintiffs’ rights and also that of the public at large.

26. He then referred to a judgment of the Supreme Court in Midas Hygiene Industries (P) Ltd. And anr. Vs. Sudhir Bhatia and Ors., (2004) 3 SCC 90 and took me through the observations made in paragraphs 4 and 5 thereof, wherein it holds that mere delay and laches in filing a suit or infringement of a trade mark or a copy right would not disentitle the plaintiff from a grant of injunction. He further contends that the law on the grant of injunction in the matter of intellectual property rights stands on a different footing and is to be dealt with on different considerations as from matters which deal with breach of contract or a threat to property. He submits that in cases of infringement of trade marks, normally injunction must follow, if a prima facie case appears to have been made out.

27. He then refers to the judgment of the Supreme Court in Laxmikant V. Patel Vs. Chetanbhai Shah and anr. (2002)3 SCC 65 wherein, at paragraphs 13, 14 and 16 the Apex Court has laid down a general principles for grant of injunction in matters of infringement of a trademark; he submits that all the plaintiff is required to do is to prove a prima facie case and the question of balance of convenience and irreparable injury being caused to the defendant would not be of importance once it is shown that the defendant has imitated or adopted the plaintiff’s distinctive trade mark or business name. It is his contentions that, on going through the plaint and on comparison of the plaintiff’s trade mark and the bottles/containers in which their product is sold with the lables on the bottles of the defendant’s product, prima facie case of the similarity between the two were clearly made out and question of reference to balance of convenience or whether irreparable loss would be caused to the plaintiff would be of no significance.

28. In rejoinder, Mr. Kantak, learned Senior Advocate contends that the provisions of Sub-Section 2 of Section 135 of the Trade Marks Act, would be restricted only to those mentioned in Sub-Clause (a) to (c) thereof i.e. for discovery of documents, preserving of infringing goods and to restrain the defendant from disposing of or dealing with his assets in a manner which may adversely affect plaintiff’s right to recover damages which may be finally awarded to him. He further submits that the trial Court, while granting the exparte order of injunction has made no reference to the provision of Section 135 of the Trade Marks Act, or to the Trinity Test laid down in Morgan Stanley Mutual Fund (supra) while granting an exparte injunction. He further submits that recording reasons and opinion as is required by Rule 3 Order XXXIX of the CPC are mandatory as held by the Supreme Court in Shiv Kumar Chadha (supra) and a failure to record such opinion renders the order otios.

He then refers to a judgment of the Kerala High Court in G.M. Sheik and Ors. Vs. Raja Biri Private Ltd., (2022) SCC Online Ker 4482, which, after referring to the judgment of the Apex Court in A. Venkatasubbiah Naidu (supra), has held that the order of injunction granted by the trial Court for preventing sale of goods belonging to the defendant in contravention of alleged trademark or name by appointing of a Commission, would not come under the purview of Section 135(2) of the Trade Mark Act. He counters the submission of Shri Kamod, learned Advocate for respondent that the trial Court would have powers in addition to those vested under Order XXXIX of the CPC, under Section 135 of the Trade Marks Act, to grant exparte order of injunction, by making reference to the contents of paragraph 5 of G.M. Sheik (supra) wherein that same argument was considered and rejected, holding that the provisions of Section 135 of the Trade Marks Act are only limited for grant of injunction pertaining to matter incorporated in Clause (a) to (c) of Sub-Section 2 of that Section and it does not vest the Court with to power to grant exparte ad-interim injunction without notice to the opposite party of the nature of Order XXXIX Rule 3 of the CPC. He, therefore, submits that the impugned order be quashed and set aside.

29. I have considered the rival submissions of the parties and the material on record.

Considering that the appellant is yet to file its written statement and its reply to the application for temporary injunction, which is now due to be heard on 05.01.2023, I find that at this stage, it would be improper for me to enter into the merits of the matter in appellate jurisdiction under Order XLIII of CPC. In my opinion, considering the above circumstances, the scope of jurisdiction to be exercised by me would be restricted to examining whether the impugned order has been passed in compliance with and within the bounds of the provisions of Order XXXIX Rule 3 read with Rule 3-A and Rule IV of the CPC, and whether it is inconsonance with the various directives of the Hon’ble Supreme Court in the judgments cited before me, on its compliance.

30. For clear understanding of its provisions, Rule 1 to 4 of Order XXXIX are reproduced hereinbelow:

“1. Cases in which temporary injunction may be granted - Where in any suit it is proved by affidavit or otherwise -

(a) that any property in dispute in a suit is in danger of being wasted, damaged or alienated by any party to the suit, or wrongfully sold in execution of a decree, or

(b) that the defendant threatens, or intends, to remove or dispose of his property with a view to defrauding his creditors,

(c) that the defendant threatens to dispossess, the plaintiff or otherwise cause injury to the plaintiff in relation to any property in dispute in the suit], the Court may by order grant a temporary injunction to restrain such act, or make such other order for the purpose of staying and preventing the wasting, damaging, alienation, sale, removal or dispossession of the property [or dispossession of the plaintiff, or otherwise causing injury to the plaintiff in relation to any property in dispute in the suit] as the Court thinks fit, until the disposal of the suit or until further orders.

2. Injunction to restrain repetition or continuance of breach - (1) In any suit for restraining the defendant from committing a breach of' contract or other injury of any kind, whether compensation is claimed in the suit or not, the plaintiff may, at any time after the commencement of the suit, and either before or after judgement, apply to the Court for a temporary injunction to restrain the defendant from committing the breach of contract or injury complained, of, or any breach of contract, or injury of a like kind arising out of the same contract or relating to the same property or right.

(2) The Court may by order grant such injunction, on such terms as to the duration of the injunction, keeping an account, giving security, or otherwise, as the Court thinks fit.

2-A. ……

3. Before granting injunction, Court to direct notice to opposite party - The Court shall in all cases, except where it appears that the object of granting the injunction would be defeated by the delay, before granting an injunction, direct notice of the application for the same to be given to the opposite party:

[Provided that, where it is proposed to grant an injunction without giving notice of the application to the opposite party, the Court shall record the reasons for its opinion that the object of granting the injunction would be defeated by delay, and require the applicant-

(a) to deliver to the opposite party, or to send to him by registered post, immediately after the order granting the injunction has been made, a copy of the application for injunction together with-

(i) a copy of the affidavit filed in support of the application;

(ii) a copy of the plaint; and

(iii) copies of documents on which the applicant relies, and

(b) to file, on the day on which such injunction is granted or on the day immediately following that day, an affidavit stating that the copies aforesaid have been so delivered or sent].

3-A. Court to dispose of application for injunction within thirty days - Where an injunction has been granted without giving notice to the opposite party, the Court shall make an endeavour to finally dispose of the application within thirty days from the date on which the injunction was granted; and where it is unable so to do, it shall record its reasons for such inability].

4. Order for injunction may be discharged, varied or set aside - Any order for an injunction may be discharged, or varied, or set aside by the Court, on an application made thereto by any party dissatisfied with such order :

Provided that if in an application for temporary injunction or in any affidavit supporting such application a party has knowingly made a false or misleading statement in relation to a material particular and the injunction was granted without giving notice to the opposite party, the Court shall vacate the injunction unless, for reasons to be recorded, it considers that it is not necessary so to do in the interests of justice :

Provided further that where an order for injunction has been passed after giving to a party an opportunity of being heard, the order shall not be discharged, varied or set aside on the application of that party except where such discharge, variation or setting aside has been necessitated by a change in the circumstances, or unless the Court is satisfied that the order has caused undue hardship to that party.”

31. In Shiv Kumar Chadha (supra) the Supreme Court was considering the manner in which powers under Rule 3 of Order XXXIX of the CPC were to be exercised without notice or hearing to the party who is to be affected by the order. While considering that grant of injunction is within the discretion of the Court, and such discreation is to be exercised in favour of the plaintiff only if it is proved to satisfaction of the Court and unless the defendant is restrained by order of injunction irreparable loss would be caused to the plaintiff, it has considered the Court’s power to grant such an injunction and held thus :

“32. Power to grant injunction is an extraordinary power vested in the Court to be exercised taking into consideration the facts and circumstances of a particular case. The Courts have to be more cautious when the said power is being exercised without notice or hearing the party who is to be affected by the order so passed. That is why Rule 3 of Order 39 of the Code requires that in all cases the Court shall, before grant of an injunction, direct notice of the application to be given to the opposite party, except where it appears that object of granting injunction itself would be defeated by delay. By the Civil Procedure Code (Amendment) Act, 1976, a proviso has been added to the said rule saying that "where it is proposed to grant an injunction without giving notice of the application to the opposite party, the Court shall record the reasons for its opinion that the object of granting the injunction would be defeated by delay…...

“33. It has come to our notice that in spite of the aforesaid statutory requirement, the Courts have been passing orders of injunction before issuance of notices or hearing the parties against whom such orders are to operate without recording the reasons for passing such orders. It is said that if the reasons for grant of injunction are mentioned, a grievance can be made by the other side that Court has prejudged the issues involved in the suit. According to us, this is a misconception about the nature and the scope of interim orders. It need not be pointed out that any opinion expressed in connection with an interlocutory application has no bearing and shall not affect any party, at the stage of the final adjudication. Apart from that now in view of the proviso to Rule 3 aforesaid, there is no scope for any argument. When the statute itself requires reasons to be recorded, the Court cannot ignore that requirement by saying that if reasons are recorded, it may amount to expressing an opinion in favour of the plaintiff before hearing the defendant.”

32. In Morgan Stanley Mutual Fund (supra) the Supreme Court considering a question as to whether the Consumer Dispute Redressal Forum under the Consumer Protection Act was vested with jurisdiction of a Civil Court to grant injunctions, and what would be guiding principles in relation to the grant of ad-interim injunctions. While considering these issues, it has held ;

“36. As a principle, ex parte injunction could be granted only under exceptional circumstances. The factors which should weigh with the court in the grant of ex parte injunction are-

(a) whether irreparable or serious mischief will ensue to the plaintiff;

(b) whether the refusal of ex parte injunction would involve greater injustice than the grant of it would involve;

(c) the court will also consider the time at which the plaintiff first had notice of the act complained so that the making of improper order against a party in his absence is prevented;

(d) the court will consider whether the plaintiff had acquiesced for sometime and in such circumstances it will not grant ex parte injunction;

(e) the court would expect a party applying for ex parte injunction to show utmost good faith in making the application.

(f) even if granted, the ex parte injunction would be for a limited period of time.

(g) General principles like prima facie case balance of convenience and irreparable loss would also be considered by the court.”

33. In A. Venkatasubbiah Naidu (supra) the Supreme Court was concerned with a case where a plaintiff rushed to the Civil Court for an exparte interim order of injunction against the defendant and obtained it ; in an appeal the order was set aside and while considering the effect of the grant of exparte temporary injunction without recording reasons as to why the delaying in issuance of notice would defeat the purpose of grant of the injunction it has held thus:

“15. What would be the position if a court which passed the order granting interim ex parte injunction did not record reasons thereof or did not require the applicant to perform the duties enumerated in clauses (a) & (b) of Rule 3 of Order 39. In our view such an Order can be deemed to contain such requirements at least by implication even if they are not stated in so many words. But if a party, in whose favour an order was passed ex parte, fails to comply with the duties which he has to perform as required by the proviso quoted above, he must take the risk. Non-compliance with such requisites on his part cannot be allowed to go without any consequence and to enable him to have only the advantage of it. The consequence of the party (who secured the order) for not complying with the duties he is required to perform is that he cannot be allowed to take advantage of such order if the order is not obeyed by the other party. A disobedient beneficiary of an order cannot be heard to complain against any disobedience alleged against another party…..

17. The Rule does not say that the period of the injunction order should be restricted by the Court to thirty days at the first instance, but the Court should pass final order on it within thirty days from the day on which the injunction was granted. Hence, the order does not ipso facto become illegal merely because it was not restricted to a period of thirty days or less.

18. Nonetheless, we have to consider the consequence, if any, on account of the Court failing to pass the final orders within thirty days as enjoined by Rule3-A.

19. The aforesaid Rule casts a three-pronged protection to the party against whom the ex parte injunction order was passed. First is the legal obligation that the Court shall make an endeavour to finally dispose of the application of injunction within the period of thirty days. Second is, the legal obligation that if for any valid reasons the Court could not finally dispose of the application within the aforesaid time the Court has to record the reasons thereof in writing.

20. What would happen if a Court does not do either of the courses We have to bear in mind that in such a case the Court would have by-passed the three protective humps which the legislature has provided for the safety of the person against whom the order was passed without affording him an opportunity to have a say in the matter. First is that the Court is obliged to give him notice before passing the order. It is only by way of a very exceptional contingency that the Court is empowered to by-pass the said protective measure. Second is the statutory obligation cast on the Court to pass final orders on the application within the period of thirty days. Here also it is only in very exceptional cases that the Court can by-pass such a rule in which cases the legislature mandates on the court to have adequate reasons for such by passing and to record those reasons in writing. If that hump is also by passed by the Court it is difficult to hold that the party affected by the order should necessarily be the sole sufferer.

21. It is the acknowledged position of law that no party can be forced to suffer for the inaction of the court or its omissions to act according to the procedure established by law. Under the normal circumstances the aggrieved party can prefer an appeal only against an order passed under Rules 1,2,2A, 4 or 10 of Order 39 of the Code in terms of Order 43 Rule 1 of the Code. He cannot approach the appellate or revisional court during the pendency of the application for grant or vacation of temporary injunction. In such circumstances the party who does not get justice due to the inaction of the court in following the mandate of law must have a remedy. 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 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.”

34. A reading of the judgments leaves no doubt that the trial Court, while granting an exparte order of temporary injunction cannot by bypass the “Trinity” Rule whereby it is mandated to record its finding on a prima facie case, balance of convenience and irreparable loss. In addition, as a matter of rule, the trial Court is also required to issue notice to the opposite party to hear it before grant of any orders of injunction. In the above referred judgments, the Hon’ble Supreme Court has laid down a specific requirement of Rule 3 of Order XXXIX (39) of the CPC holding that the provision requires, that in all cases the Court shall, before the grant of any injunction without notice to the opposite party comply with the proviso to the Rule, record reasons and express its opinion, as to why issuance of notice to the opposite party would defeat the purpose of granting such an order. The Supreme Court has held that the proviso had been introduced to provide a condition that where a Court proposes to grant injunction without giving notice of the opposite party, it was required to record reasons. It has also held that such a requirement cannot be held to be a mere formality, as grant of an exparte order of injunction would have far reaching effect and infringe rights of the opposite party.

35. Further, the contention of the respondent that this Court ought not to entertain the appeal under Order XLIII at this stage, and instead should relegate the appellant to filing its reply to the application for temporary injunction before the trial Court or file an application under Rule 4 Order XXXIX for vacating the impugned order was also considered by the Supreme Court at paragraph 21 in A.Venkatasubbiah Naidu (supra) where it has held that in a case where mandate of Order XXXIX is not followed, no party can be forced to suffer for the inaction of the Court or its omission to act in accordance with the procedure established by law and such an aggrieved person and preferred an appeal in terms of Order XLIII Rule 1 of the CPC.

This appeal is clearly, therefore, maintainable against the impugned order.

36. On an examination of the impugned order, there is no doubt that the impugned order makes a passing reference to the trade mark claimed by the plaintiff and the similarity between the mark and bottle used by the defendant, and that of the plaintiff. However, two aspects of the impugned order which ought to have been considered while passing the same would be apparent.

37. The first was that more than 30 days had elapsed from the time the Court had heard the application and considered whether the same should be granted exparte, leaving no doubt that by then it was imperative that a short notice should be given to the opposite party and the general rule incorporated in Rule 3 Order XXXIX of the CPC be followed.

The second glaring lacuna in the order is that the Court has not recorded or even considered or made reference to the material on record for concluding its satisfaction on the Trinity Test as laid down by the Hon’ble Supreme Court in the judgments referred to hereinabove.

Apart from not arriving at any specific finding on the question of prima facie case, balance of convenience and irreparable loss, the trial Court has not recorded any opinion or even made a passing reference as to why it was granting the temporary injunction exparte, without notice to the respondent, moreso in the light of the fact that more than a month have passed since the filing of the suit, and more than three months had elapsed since the cause of action had arisen to the plaintiff. In the absence of recording compelling reasons that formed its opinion in compliance with the requirement of Rule Order XXXIX of the CPC the impugned order is rendered unsustainable.

38. The reference to the judgments passed in Bombay High Court in Prince Pipes And Fittings Ltd.(supra), Pidilite Industries Ltd.(supra) are original granting a temporary injunction in a Commercial Suit. In my opinion these orders would have no precedential value. In any event, a perusal of these judgments would disclose that even in those cases, the learned Single Judge of this Court acting as the original Court in a suit, granted exparte orders of temporary injunction after specifically recording finding that a prima facie case was made out by the plaintiff, and recording its opinion and satisfaction that delay in giving notice to the defendant before grant injunction would defeat very purpose of granting ad-interim relief.

39. Those judgments therefore, would not come to the aid of the respondent in these appeal.

40. The Kerala High Court in G.M. Sheik (supra) has dealt with a similar contention as raised by the respondent that a Civil Court is vested with powers to grant exparte injunctions under provision Sub-Section 135 (2) (c) of the Trade Marks Act. The Kerala High Court in G.M. Sheik (supra) has dealt with this contention at paragraph 5 of the judgment and rejected the same after consideration of the provisions of Section 135 of the Trade Marks Act, and held that sub-Section 2 thereof has a limited scope, vesting a Court dealing with a trade mark case, to grant interim injunctions pertaining to matters incorporated in Clause (a) to (c) of that Sub-Section. A plain reading of Section 135 (2) of the Trade Marks Act, leaves no manner of doubt that the power to grant injunctions contemplated by those provisions are restricted to preserving infringing goods and to restrain the defendant from disposing of or dealing with his assets in a manner which would adversely affect the plaintiff’s chance of recovery of damages from the defendant. Powers vested in a Court under Section 135 of the Trade Marks Act, do not conferred jurisdiction on a Court to grant exparte injunctions without following the mandate of the proviso to Rule 3 Order XXXIX of the CPC. Applying the ratio laid down in Shiv Kumar Chadha Vs. Municipal Corporation of Delhi and Ors., (1993) 3 SCC 161, Morgan Stanley Mutual Fund Vs. Kartick Das (1994) 4 SCC 225 and A. Venkatasubbiah Naidu Vs. S. Chellappan and Ors., (2000) 7 SCC 695 to the case at hand, I am of the considered opinion that the impugned order is not sustainable for lack of trial Court recording reasons and its opinion as to whether delay in issuing notice would defeat the grant of the injunction.

41. For the above reasons, the appeal is allowed, the impugned order dated 29.11.2022 is quashed and set aside. No costs.

42. After pronouncement of this judgment, Mr. Kamod, learned counsel for respondent requested this Court for continuation of the operation of the impugned order dated 29.11.2022 for a period of two weeks from today to enable the respondent to approach the Hon’ble Apex Court.

43. Mr. Gosavi, learned Advocate for the appellant submits that grant of the prayer for continuance of the impugned order after having held that the same is contrary to the provisions of law would give premium to the respondent’s for enjoyng an injunction for the next two weeks. After considering the submissions of the learned Advocates for the parties, I am of the opinion that having held that the impugned order is contrary to the mandate of Order XXXIX Rule 3 of the CPC, continuance of the impugned order dated 29.11.2022 cannot be granted. Hence, the request is rejected.