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2003 DIGILAW 119 (AP)

V. Jaya Raj v. Bhavani Sweets and Bakery

2003-01-22

DUBAGUNTA SUBRAHMANYAM

body2003
DUBAGUNTA SUBRAHMANYAM, J. ( 1 ) THIS is an appeal filed against the order dated 16th April, 2001 in I. A. No. 274 of 2001 in O. S. No. 10 of 2001 on the file of the i Additional District Judge, Warangal. ( 2 ) THE respondent/plaintiff filed the suit seeking relief of permanent injunction restraining the defendant from committing any infringement of his trademark Bhavani khara with the device of plaintiff s or any other mark deceptively similar thereto and passing of any Khara Packets with labels affixed thereon which is deceptively similar to the label used by the plaintiff. He also sought for the relief of a direction to the defendant to render a true and faithful account of the profits earned by the defendant through the manufacture and sale of packets Bhavani Khara and direct such profits to be paid to the plaintiff by way of damages for the infringement of plaintiff s trademark and passing of all goods by the defendant. He also filed a petition in I. A. No. 274 of 2001 under Order 39 Rules 1 and 2 C. P. C. seeking an interim injunction restraining the defendant from manufacturing and marketing of Bhavani khara in packages carrying the label containing the device of the pictorial description and bell monogram accompanied by the name Bhavani Khara or any other colourable imitation there of etc. The learned Additional District Judge granted an ex parte ad-interim injunction in favour of the plaintiff and ordered further notice to the defendant. Aggrieved by the said order dated 16th April, 2001 the defendant preferred the present appeal. ( 3 ) IN the impugned order the learned additional District Judge observed that the plaintiff is the prior user of the label Bhavani khara, he started business much prior to the respondent and in fact the respondent started business only on 01-11-2000, he also observed in his order that there is prima facie case in favour of the petitioner-plaintiff, the balance of convenience is also in favour of the plaintiff as he is the prior user and he will suffer irreparable loss if the respondent is not restrained from selling his product in the name and style of Bhavani Khara. Therefore, the learned Additional District judge felt that it is a fit case to dispense with notice to the respondent and requires immediate orders so as to prevent the respondent from passing off of the produce in the market. ( 4 ) IT is the contention of the appellant that he filed an application under Section 18 of trade Mark Act, 1999 before the Registrar for registering two trade marks namely, bhavani Khara with bell mark monogram encircled with the design Chakra and another Ganesh Khara with Ganesh monogram encircled in a design Chakra and the competent authorities under the said statute have registered the two trade marks for the use and trade in the name and style of M/s. Veeralaxmi Industries, Manthani. Appellant further contends that it is the plaintiff who is deceptively copying the registered trademark of him and doing clandestine business. It is also his contention that the observation of the lower court that the appellant has started the business on 01-11-2000 is not correct and that the appellant in his applications before the registrar stated clearly that he is manufacturing Khara since the year 1992. ( 5 ) DISCUSSION relating to facts is not necessary for disposal of the present appeal. The appeal is against an ex parte injunction order granted against the appellant. As the appeal is being allowed and the ex parte order of injunction is being set aside by this court, the main application seeking temporary injunction pending disposal of the suit still remains on the file of the lower court and the said application is to be decided on merits by the trial Court. Therefore, I do not like to discuss and give findings on the claims made by either of the parties. According to the plaintiff- respondent he is the earlier user of the disputed trademark. According to the appellant-defendant he is the earlier user of the disputed trademark. He also contends that his trademark is already registered by the competent authority. According to the respondent-plaintiff his trademark is not yet registered. His application is still pending consideration before the competent authority. ( 6 ) I have come across a binding decision of Apex Court reported in "wander Ltd. v. Antox India P. Ltd. "1. He also contends that his trademark is already registered by the competent authority. According to the respondent-plaintiff his trademark is not yet registered. His application is still pending consideration before the competent authority. ( 6 ) I have come across a binding decision of Apex Court reported in "wander Ltd. v. Antox India P. Ltd. "1. The relevant passage in para 9 of the judgment of the Apex Court reads as follows: usually, the prayer for grant of an interlocutory injunction is at a stage when the existence of the legal right asserted by the plaintiff and its alleged violation are both contested and uncertain and remain uncertain till they are established at the trial on evidence. The Court, at this stage, acts on certain well settled principles of administration of this form of interlocutory remedy which is both temporary and discretionary. The object of the interlocutory injunction, it is stated. ". . . . . . is to protect the plaintiff against injury by violation of his rights for which he could not adequately be compensated in damages recoverable in the action if the uncertainty were resolved in his favour at the trial. The need for such protection must be weighed against the corresponding need of the defendant to be protected against injury resulting from his having been prevented from exercising his own legal rights for which he could not be adequately compensated, the court must weigh one need against another and determine where the balance of convenience lies. " the interlocutory remedy is intended to preserve in status quo, the rights of parties, which may appear on a prima facie case. The court also, in restraining a defendant from exercising what he considers his legal right but what the plaintiff would like to be prevented, puts into the scales, as a relevant consideration whether the defendant has yet to commence his enterprise or whether he has already been doing so in which latter case considerations somewhat different from those that apply to a case where the defendant is yet to commence his enterprise, are attracted. " ( 7 ) IN the present case the impugned order discloses that by the time the respondent-plaintiff instituted the suit, the appellant-defendant had already commenced his business using the disputed trademark. It is not as though that appellant-defendant has not yet commenced his business. " ( 7 ) IN the present case the impugned order discloses that by the time the respondent-plaintiff instituted the suit, the appellant-defendant had already commenced his business using the disputed trademark. It is not as though that appellant-defendant has not yet commenced his business. In view of the principles of law settled by the Apex court in this judgment and in view of the facts and circumstances of the present case, it is very clear that the learned Additional district Judge ought not to have dispensed with the prior notice to the defendant-appellant and granted ex part order of injunction against the appellant-defendant. ( 8 ) THERE is also one another ground to set aside the impugned order passed by the learned Additional District Judge. Proviso to order 39, Rule 3 C. P. C clearly lays down 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. Nowhere in the impugned order the learned Additional district Judge even stated that delay in issuing the notice of the application to the opposite party would defeat the object of granting the injunction. The impugned ex parte order is fairly an elaborate order. Many reasons mentioned in it relate to prima facie case, balance of convenience etc. As already noticed no reasons are mentioned to show that ordering notice and consequential delay would defeat the object of granting injunction. The general rule is that no injunction should be granted without notice to opposite party. The exception is that it can be granted without notice where the court felt that the object of granting of such injunction would be defeated by delay if notice was issued to the opposite party. To apply the exception the court shall record its reasons for its opinion that the object of granting injunction would be defeated by the delay which would arise by ordering notice to the opposite party. Therefore the impugned order violates the mandatory requirement of proviso to Order 39 Rule 3 c. P. C. I am therefore inclined to set-aside the order of injunction granted by the lower court. ( 9 ) IN the result the appeal is allowed. The impugned order dated 16th April, 2001 is set-aside. Therefore the impugned order violates the mandatory requirement of proviso to Order 39 Rule 3 c. P. C. I am therefore inclined to set-aside the order of injunction granted by the lower court. ( 9 ) IN the result the appeal is allowed. The impugned order dated 16th April, 2001 is set-aside. The trial Court is directed to dispose of I. A. No. 274 of 2001 in O. S. No. 10 of 2001 as expeditiously as possible on merits unmindful of any of the observations made by it in the course of its impugned order as well as any of the observations made by this court in the course of this order. The lower court shall give reasonable opportunity to both parties to contest the application on merits. The appellant shall file his counter with all the documents in the trial Court within two weeks from the date of receipt of the records by the lower Court. The Registry is directed to send back all the records received from the lower court to it within one week. No order as to costs in this appeal.