JUDGMENT Hon'ble Rajesh Tandon, J. Heard Shri S.K. Bansal and Shri Sharad Sharma, counsel for the appellants and Shri Alok Singh, Sr. Advocate assisted by Shri Dharmendra Barthwal, counsel for the respondent. 2. By the present appeal filed under Section 104 read with Order 43 Rule 1(r) of Code of Civil Procedure, the appellants have prayed for setting aside the order dated 10.8.2007 passed by the District Judge, Udham Singh Nagar in suit no. 2 of 2007 whereby the ex-parte injunction has been granted while adjudicating the application paper no. 6-C under Order 39 Rule 1 and 2 in favour of the plaintiff-respondent. 3. Briefly stated a suit no. 2 of 2007 was filed for permanent injunction restraining the infringement of patents, infringement of copyright, damages, delivery, etc. with the following reliefs :- "(i) An order for permanent injunction restraining the Defendants by themselves and or through their Directors, Principal Officers, servants and agents from reproducing the copyrighted works of the Plaintiff in any material form including depiction in three dimensions of a two dimensional work or in two dimensions in a three dimensional work; (ii) An order for permanent injunction restraining the defendants by themselves, and or through their Directors, Principal Officers, servants and agents from communication the copyrighted works of the plaintiff and products based on the works to the public; (iii) An order for permanent injunction restraining the Defendants by themselves, and or through their Directors, Principal Officers, servants and agents from issuing copies of the copyrighted works of the plaintiff and products based on the works to the public; (iv) An order for permanent injunction restraining the defendants by themselves, and or through their Directors, Principal Officers, servants and agents from permitting any place to be used for communication of products that infringe the copyright of the Plaintiff to the public; (v) An order for permanent injunction restraining the defendants by themselves, and or through their Directors, Principal Officers, servants and agents from making, selling, letting for hire, offering for sale, distributing, exhibiting products that infringe the copyright of the plaintiff. (vi) An order for permanent injunction restraining the defendants by themselves, and or through their Directors, Principal Officers, servants and agents from making, using, selling or offering to sell products that infringe the patent rights of the Plaintiff. (vi) An order for permanent injunction restraining the defendants by themselves, and or through their Directors, Principal Officers, servants and agents from making, using, selling or offering to sell products that infringe the patent rights of the Plaintiff. (vii) An order for permanent injunction restraining the defendants by themselves, and or through their Directors, Principal Officers, servants and agents from permitting any place to be used for making, using, selling or offering to sell products that infringe the patent rights of the plaintiff; (viii) An order granting damages for the loss caused to the plaintiff by the infringing acts of the Defendants; (ix) An order for rendition of true and faithful accounts of profits made by the Defendants by manufacture and sale of the infringing products and pay to the Plaintiff the proceeds that may be found due on taking of such accounts; (x) An order directing Defendants to disclose on affidavit complete details of locations where infringing products are presently installed or available; (xi) An order to seize and destroy all infringing products and to seize and destroy all machinery used in the manufacture of infringing products, wherever they are found; (xii) An order for costs of the proceedings; (xv) Any other orders as this Hon'ble Court may deed fit and proper in the facts and circumstances of the present case. 4. According to the plaint averments, the plaintiff Acme Tele Power Limited is incorporated under the Companies Act, 1956 having its registered office at 9th Floor Building, 'C', DLF Infinity Tower, DLF Cyber City, Phase-II Gurgaon, Haryana and has its place of business and factory at Plot No. 3-8 & 29-34, Sector-V, IIE, SIDCUL, Pantnagar -263153, Uttarakhand, India. The plaintiff manufactures products knows as 'Green Shelter" and "Compact Power Interface Unit" (For short, 'the products'). The products are required by the telecom industry for efficient managements of the temperature and power requirements of the telecom equipment installed at telecom lowers. The plaintiff sells the products to customers throughout India and raises bills for the sales from Pantnagar. The payments for the same are also being realized at Pantnagar. It has been stated that the defendant nos. 1,2 and 3 are companies incorporated under the Companies Act, 1956 and carry on the business of manufacturing and supplying Green Shelters and Compact Power Interface Units by infringing the Plaintiff's intellectual property rights. Defendant nos. The payments for the same are also being realized at Pantnagar. It has been stated that the defendant nos. 1,2 and 3 are companies incorporated under the Companies Act, 1956 and carry on the business of manufacturing and supplying Green Shelters and Compact Power Interface Units by infringing the Plaintiff's intellectual property rights. Defendant nos. 4 and 5 are the Principal Officers/Directors of the defendant companies and are exercising effective control over the defendant companies. The defendant no. 6 is presently an employee of the plaintiff. The plaintiff has stated that he has spent huge capital, skill and labour in the innovation of the products by which the customer's requirements are being satisfied. The Plaintiff's products shall fulfill a long felt market needs and command a premium in the market as evidenced by the plaintiff's phenomenal growth. The plaintiff's company was incorporated in year 2003 when it had a small turnover of just Rs. 30 lakhs and has achieved a turnover of more than Rs. 460 crores in the financial year 2005-06. The plaintiff has witnessed phenomenal growth of more than 250% year on year basis in its business because of its innovative solutions. The plaintiff has stated that the drawings that the plaintiff uses to manufacture the products are artistic works and the copyright in these works belongs solely to the plaintiff. In paragraph 10 of the plaint, it has been stated as under:- "10. that the drawing that the plaintiff uses to manufacture the said products are artistic works and the copyright in these works belongs solely to the plaintiff. By virtue of the plaintiff's ownership of copyright in the artistic works the plaintiff has the sole right to inter alia do or authorize the doing of the following:- a. to reproduce the drawings in any material form including depiction in three dimensions of a two dimensional work or in two dimensions of a three dimensional work; b. to communicate the drawings and products based on the drawings to the public; c. to issue copies of the drawings to the public." 5. The plaintiff has stated that the defendant no. 6 who was formerly an employee of the plaintiff left the employment of the plaintiff and took up employment with the defendant nos. 1 to 5. The plaintiff has stated that the defendant no. 6 who was formerly an employee of the plaintiff left the employment of the plaintiff and took up employment with the defendant nos. 1 to 5. It has been alleged that in April, 2006 it was found that Defendant No. 6 had copied the drawings of the plaintiff and had transferred them electronically to his personal e-mail identity. Such transfer was improper and the plaintiff filed an F.I.R. against defendant no. 6 and after the preliminary investigation the police arrested defendant no. 6 and the case is under investigation. The defendant no. 6 has wrongfully communicated the drawings of the plaintiff to defendant nos. 1 to 5 and the defendants were making products using such drawings. The defendants were reproducing the drawings of the plaintiff in two dimensions and three dimensions to make the product and communication the issuing copies of the copyrighted works of the plaintiff to the public in violation of the copyright of the plaintiff. In paragraph 16 of the plaint averments, the plaintiff has stated as under:- "16. That the plaintiff accordingly had the Green Shelters and Compact Power Interface Units of the Defendants examined by an expert and the expert reported that the Green Shelters and Compact Power Interface Units of the Defendants were material copies of the drawings and products of the plaintiff and that given the close similarities between the dimensions and shapes of the drawing and products of the plaintiff and the corresponding products of the defendants it was clear that the defendants had copied the drawings and products of the Plaintiff..." 6. Further, the plaintiff has stated that the products of the plaintiff are based on inventions that are the result of extensive research and development and these inventions have been patented under registration of patent no. 197086 dated 11.8.2006 and 197108 dated 8.9.2006 for Compact Power Interface Unit and Green Shelter respectively. By virtue of the ownership of the above patents, the plaintiff has the right to prevent all other person from making, using, selling, offering to sell or importing Green Shelter or Compact Power Interface Units. The plaintiff has alleged that the defendants infringed the intellectual property rights of the plaintiff. The defendants are manufacturing and replicating the critical components of the plaintiff's equipment. The plaintiff has alleged that the defendants infringed the intellectual property rights of the plaintiff. The defendants are manufacturing and replicating the critical components of the plaintiff's equipment. The plaintiff has got examined the Green Shelters and Compact Power Interface Units by an expert who had disclosed that the Green Shelters and Compact Power Interface Units of the defendants have similar features that of manufactured by the plaintiff. In paragraph 27 of the plaint, the plaintiff has stated as under:- "27. The cause of action in the present suit arose on; a. On April 1, 2006 when defendant no. 6 copied the drawings of the plaintiff; b. Between September, 2006 to the present when the Defendants manufactured the Green Shelter and Compact Power Interface Unit, infringing the copyright of the plaintiff; c. The cause of action still subsists and is of continuing nature as the defendants are still making, selling, supplying, displaying, and offering for sale infringing copies of Green Shelters and Compact Power Interface Units; d. Between April, 2007 and the present when the plaintiff searched and found in print and on internet the advertisements published by the defendant inviting orders from the other parties for infringing copies of Green Shelters and Compact Power Interface Units e. On 09.07.2007 and 07.07.2007 (dates of report by expert) when the infringing Green Shelters and Compact Power Interface Units of the Defendant were analysed by the expert; f. On 08.09.2006 and 11.08.2006 (dates of grant of patents) when the Plaintiff was granted patent for Green Shelters and Compact Power Interface Units by the Controller - General of Patents; g. The cause of action still subsists and is of continuing nature as the Defendants are still making, using, selling and offering to sell Green Shelters and Compact Power Interface Units; 7. Along with the plaint, the plaintiff has also filed in application under Order 39 Rule 1 and 2 read with Section 151 of Code of Civil Procedure, stating therein that the plaintiff Acme Tele Power Limited is incorporated under the Companies Act, 1956 having its registered office at 9th Floor Building, 'C', DLF Infinity Tower, DLF Cyber City, Phase -II Gurgaon, Haryana and has its place of business and factory at Plot No. 3-8 & 29-34, Sector-V, IIE, SIDCUL, Pantnagar -263153, Uttarakhand, India. The plaintiff manufactures products known as 'Green Shelter" and "Compact Power Interface Unit" (For short, the product'). The plaintiff manufactures products known as 'Green Shelter" and "Compact Power Interface Unit" (For short, the product'). The products are required by the telecom industry for efficient managements of the temperature and power requirements of the telecom equipment installed at telecom towers. The plaintiff sells the products to customers throughout India and raises bills for the sales from Pantnagar. The payments for the same are also being realized at Pantnagar. The defendants are carrying on the business of manufacturing and supplying Green Shelters and Compact Power Interface Units by infringing the Plaintiff's intellectual property rights. The plaintiff has stated that the drawings that the plaintiff uses to manufacture the products are artistic works and the copyright in these works belong solely to the plaintiff. In paragraph 6 of the application, it has been started as under:- "10. that the drawing that the plaintiff uses to manufacture the said products are artistic works and the copyright in these works belongs solely to the plaintiff. By virtue of the plaintiff's ownership of copyright in the artistic works the plaintiff has the sole right to inter alia do or authorize the doing of the following:- a. to reproduce the drawings in any material form including depiction in three dimensions of a two dimensional work or in two dimensions of a three dimensional work; b. to communicate the drawings and products based on the drawings to the public; c. to issue copies of the drawings to the public." 8. It has been stated that the defendants were reproducing the drawings of the plaintiff in two dimensions and three dimensions to make the product and communication the issuing copies of the copyrighted works of the plaintiff to the public in violation of the copyright of the plaintiff. The products of the plaintiff are based on inventions that are the result of extensive research and development and these inventions have been patented under registration of patent no. 197086 dated 11.8.2006 and 197108 dated 8.9.2006 for Compact Power Interface Unit and Green Shelter respectively. By virtue of the ownership of the above patents, the plaintiff has the right to prevent all other person from making, using, selling, offering to sell or importing Green Shelters or Compact Power Interface Units. The plaintiff has alleged that the defendants have infringed the intellectual property rights of the plaintiff. By virtue of the ownership of the above patents, the plaintiff has the right to prevent all other person from making, using, selling, offering to sell or importing Green Shelters or Compact Power Interface Units. The plaintiff has alleged that the defendants have infringed the intellectual property rights of the plaintiff. The defendants are manufacturing and replicating the critical components of the plaintiff's equipment. The plaintiff has got examined the Green Shelters and Compact Power Interface Units by an expert who has disclosed that the Green Shelters and Compact Power Interface Units of the defendants have similar features that of manufactured by the plaintiff. In paragraph 13 of the application, it has been stated as under:- "13. The plaintiff has filed a suit before this honorable court to restrain the defendants from infringing the plaintiff's products and intellectual property. Plaintiff has established a strong prima facie case for grant of interim injunction in its favour and is likely to succeed in the suit. The balance of convenience is also in its favour and against the said defendants. The plaintiff is experiencing enormous hardships and loss on account of the above wrongful and infringing acts of the defendants. It is necessary and in the interest of justice that pending the hearing and final disposal of the suit, interlocutory and ad interim orders in terms prayed for herein be granted and defendants may be restrained by injunction from continuing with their wrongful acts. Grave and irreparable harm would be caused to the Plaintiff in case injunction is not granted. Infringment and copying by the said Defendants is apparent on the face of it. The Plaintiff's patented invention deserves to be protected from infringements by unscrupulous elements in the industry. The said Defendants' attempts are unjustifiable and illegal and ought to be restrained forthwith." 9. Infringment and copying by the said Defendants is apparent on the face of it. The Plaintiff's patented invention deserves to be protected from infringements by unscrupulous elements in the industry. The said Defendants' attempts are unjustifiable and illegal and ought to be restrained forthwith." 9. The plaintiff-applicant has prayed to the following effect:- "The plaintiff therefore prays that this Hon'ble Court may grant a temporary injunction by passing an order restraining the defendants by themselves, and or through their directors, principal officers, servants and agents from infringing the copyrighted works and patented products of the Plaintiff by either manufacturing, reproducing, selling, publishing, communicating, issuing copies, using any place, offering for sale, distributing, exhibiting products in any material form or in violation of Plaintiff's intellectual property rights and an order to seize all infringing products and to seize all machinery used in the manufacture of infringing products, wherever they are found." 10. The District Judge has granted the temporary injunction. 11. The District Judge has granted the temporary injunction. 11. The District Judge, while granting the temporary injunction has passed the order to the following effect:- ßoknh ds fo}ku vf/koDrk dks izkFkZuk i= 6 x vUrxZr vkns”k 39 fu;e 1 ,oe~ 2 ij lquk rFkk i=koyh dk voyksdu fd;kA izfroknhx.k dks bl izkFkZuk i= ds fo#) fnukad 25-8-2007 ds fy, uksfVl tkjh fd;s tk;sA izkFkZuk i= 6 x oknh }kjk bl vk”k; ds vLFkkbZ O;kns”k gsrq izLrqr fd;k x;k gS fd izfroknhx.k ds dkihjkbV isVsUV dk mYya?ku djds oknh ds mRiknksa ls lEcfU/kr ckSf)d lEink ,oa vf/kdkjksa dk mYya?ku djds mRiknu djus] mRiknksa dk foØ; djus ,oa izpkj izlkj djus ls fu’ksf/kr fd;k tk;A vius dFku ds leFkZu esa oknh us dkxt laa- 8 x@174 dh QksVks izfr nkf[ky dh gS] ftlds vuqlkj D;wcksbZMy “ksIM xzhu lSYVj ,oa ikoj bUVjQsl ;wfuV isVsUV ,DV 1970 ds vUrxZr oknh dk jftLVMZ isVsUV gSA dkxt la- 8 x@175 ls 8x@181 mijksDr isVsUV ds fooj.k fn;s x;s gSaA oknh }kjk nkf[ky fd;s x;s fcyksa ,oa buokbZl dh udy ls ;g Li’V gS fd oknh :æiqj esa mijksDr isVsUV ds vUrxZr fuekZ.k dk;Z dj jgk gSA dkxt la- 8x@173 iatkc bUthfu;fjax dkyst ,oa fofHké fo”ks’kKksa dh fjiksVZ gS] ftlds vuqlkj izfroknhx.k us oknh }kjk djk;s x;s isVsUV mRiknksa ,oa dkihjkbZV dk mYya?ku djds Lo;a mRiknu fd;k tk jgk gSA dkxt la- 8x@76 ls 8x@140 ;g iznf”kZr djus ds fy, nkf[ky fd;s x;s gSa fd izfroknh la- 6 us oknh dh iathÑr isVsUV ,oa dkihjkbZV dk mYya?ku fd;k gSA oknh }kjk nkf[ky fd;s x;s jftLVMZ isVsUV dh udy] izfroknhx.k }kjk oknh ds jftLVMZ isVsUV ds mYya?ku djus laca?kh fo”ks’kK dh fjiksVZ ls ;g izrhr gksrk gS fd izfroknhx.k }kjk oknh ds jftLVMZ isVsUV mRiknu dks mlh rduhd ls cuk;k tk jgk gS ftl rduhd ls oknh }kjkA oknh izFke n`’V;k ,d i{kh; fu’ks/kkKk gsrq nLrkosth lk{; ls viuk dsl lkfcr djus esa lQy jgk gSA vr% izfroknhx.k ,oa muds izfrfuf/k;ksa ,oa deZpkfj;ksa dks oknh ds dkihjkbV mRiknksa ,oa isVsUV ,DV ds vUrxZr iathÑr mRiknksa ls lacaf/kr ckSf)d lEink ds vfèkdkjksa dk mYya?ku djds Lo;a mRiknu djus vkSj mRiknksa dk foØ; djus ,oa mRiknksa ds izpkj izlkj djus ls vfxze fu;r fnukad 25-8-2007 rd fu’ksf/kr fd;k tkrk gSAÞ 12. While filing the plaint, the plaintiff has filed a number of documents. While filing the plaint, the plaintiff has filed a number of documents. One of the documents on which the reliance has been placed by the District Judge is Annexure 3 issued by the Department of Chemical Engineering & Technology of Banaras Hindu University. The same reads as under:- "The claims of Patent No. 197108 titled "Cuboidal Shaped Green Shelter" read as follows:- "1. The cuboidal shaped Green Shelter comprising of an outer skin made of heat insulating or solar reflecting material, inner skin made of heat conducting material; phase change material filled in panels; power interface unit; and at least one air conditioner with/without free cooling. 2. A green shelter as claimed in claim 1, wherein the outer skin is made up of Fiberglass Reinforced Plastic (FRP) or Glass Reinforced Plastic (GRP). 3. A green Shelter as claimed in claim 1, wherein the outer skin is made up of Zinc Aluminium alloy coated steel painted with PVDF (polyvinylidene fluoride). 4. A green Shelter as claimed in claim 1, wherein the outer skin is made up of Zinc Aluminium alloy coated steel painted with solar reflection compound. 5. A green Shelter as claimed in claim 1, wherein the panel is HDPE mounted horizontally to allow cross airflow. 6. A green shelter as claimed in claim 1, wherien the power interface unit is integrated with phase change material-diesel genset (PCM-DG) management circuitry. 7. A green shelter as claimed in claim 1, wherein the shelter is provided with at least one filter less air conditioner. 8. A green shelter as claimed in claim 1, wherein the shelter is provided with SMPS rectifying unit. 9. A green shelter as claimed in claim 1, wherein the shelter is provided with temperature controller and electrical accessories which included lights, fan, wire, conduit and electrical switches. 13. Counsel for the appellant has made the following submissions:- (i) without the compliance of Order 39 Rule 3 of Code of Civil Procedure, no injunction could have been granted; (ii) Merely patent has been registered is not a ground to grant injunction; (iii) There is no territorial jurisdiction lying with the District Udham Singh Nagar for grant of injunction under the Patents Act, 1970. 14. So far as the submission no. 14. So far as the submission no. (i) that no injunction could have been granted without the compliance of Order 39 Rule 3 is concerned, Order 39 Rule 3 Code of Civil Procedure provides as under:- 3. Before granting injunction, Court to direct notice to opposite party - The Court shall in all case, 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 sent 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.] 15. As will appear from the proviso, the court has to record the reasons for its opinion that the object of granting the injunction would be defeated by delay and the court has power to grant injunction. 16. As will appear from the proviso, the court has to record the reasons for its opinion that the object of granting the injunction would be defeated by delay and the court has power to grant injunction. 16. A perusal of the order passed by the District Judge shows as under:- dkxt la- 8 x@76 ls 8x@140 ;g iznf”kZr djus ds fy, nkf[ky fd;s x;s gSa fd izfroknh la- 6 us oknh dh iathÑr isVsUV ,oa dkihjkbZV dk mYya?ku fd;k gSA oknh }kjk nkf[ky fd;s x;s jftLVMZ isVsUV dh udy] izfroknhx.k }kjk oknh ds jftLVMZ isVsUV ds mYya?ku djus laca/kh fo”ks’kK dh fjiksVZ ls ;g izrhr gksrk gS fd izfroknhx.k }kjk oknh ds jftLVMZ isVsUV mRiknu dks mlh rduhd ls cuk;k tk jgk gS ftl rduhd ls oknh }kjkA oknh izFke n`’V;k ,d i{kh; fu’ks/kkKk gsrq nLrkosth lk{; ls viuk dsl lkfcr djus esa lQy jgk gSA vr% izfroknhx.k ,oa muds izfrfuf/k;ksa ,oa deZpkfj;ksa dks oknh ds dkihjkbV mRiknksa ,oa isVsUV ,DV ds vUrxZr iathÑr mRiknksa ls lacaf/kr ckSf)d lEink ds vfèkdkjksa dk mYya?ku djds Lo;a mRiknu djus vkSj mRiknksa dk foØ; djus ,oa mRiknksa ds izpkj izlkj djus ls vfxze fu;r fnukad 25-8-2007 rd fu’ksf/kr fd;k tkrk gSAÞ 17. In case of grant of ex parte injunction, remedy lies with the defendants under Order 39 Rule 4 of Code of Civil Procedure. Order 39 Rule 4 of Code of Civil Procedure reads as under:- 4. In case of grant of ex parte injunction, remedy lies with the defendants under Order 39 Rule 4 of Code of Civil Procedure. Order 39 Rule 4 of Code of Civil Procedure reads as under:- 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 application made thereto by any party dissatisfied with such order: [Provided that if in an application for temporary injunction or in any affidavit support such application a part 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 under hardship to that party.] 18. There is also an amendment on Uttar Pradesh which reads as under:- Uttar Pradesh. - Same as that of Madhya Pradesh except for the word "delaying" substitute "dilating" in the proviso. [U.P. Act 57 of 1976]. 19. Further, Section 108 of the Patents Act, 1970 reads as under:- [1] The reliefs which a court may grant in any suit for infringement include an 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. [2] The court may also order that the goods which are found to be infringing and materials and implement, the predominant use of which is in the creation of infringing goods shall be seized, forfeited or destroyed, as the court deems fit under the circumstances of the case without payment of any compensation. 20. Similar power has also been given to the court under Section 114 of the Patent Act. The same is quoted below:- "114. Relief for infringement of partially valid specification. 20. Similar power has also been given to the court under Section 114 of the Patent Act. The same is quoted below:- "114. Relief for infringement of partially valid specification. - (i) If in proceedings for infringement of a patent is found that any claim of the specification, being a claim in respect of which infringement is alleged, is valid, but that any other claim is invalid, the court may grant relief in respect of any valid claim which is infringed: Provided that the court shall not grant relief except by way of injunction save in the circumstances mentioned in sub-section (2). (2) Where the plaintiff proves that the invalid claim was framed in good faith and with reasonable skill and knowledge, the court shall grant relief in respect of any valid claim which is infringed subject to the discretion of the court as to costs and as to the date from which damages or an account of profits should be reckoned, and in exercising such discretion the court may take into consideration the conduct of the parties in inserting such invalid claims in the specification or permitting them to remain there." 21. In view of the above, the court below has exercised the power to grant injunction on the alleged infringement. However, the same will be subject to the final orders passed by the trial court after filing the application under Order 39 Rule 4 of Code of Civil Procedure. 22. After the grant of injunction on 10.8.2007, the appellant has not taken any steps to file the objections and has filed the present appeal. Reliance has been placed on the judgment of Apex Court in A. Venkatasubbiah Naidu v. S. Challappan and others reported in 2007 (7) SCC 695. "13. It cannot be contended that the power to pass interim ex parte orders of injunction does not emanate from the said Rule. In fact, the said Rule is the repository of the power to grant orders of temporary injunction with or without notice, interim or temporary, or till further orders or till the disposal of the suit. Hence, any order passed in exercise of the aforesaid powers in Rule 1 would be appealable as indicated in Order 43 rule 1 of the Code. Hence, any order passed in exercise of the aforesaid powers in Rule 1 would be appealable as indicated in Order 43 rule 1 of the Code. The choice is for the party affected by the order either to move the appellate court or to approach the same court which passed the ex parte order for any relief. 15. What would be the position if a court which passed the order granting interim ex parte injunction did not record reasons thereof did not require the applicant to perform the duties enumerated in clauses (a) and (b) of Rule 3 of Order 39. In our view such an order can be deemed to contain 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." 23. Counsel for the respondent has invited my attention towards paragraphs 21 and 23 of the judgment of Apex Court (supra) to the following effect :- "21. It is 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, 2-A, 4 or 10 or Order 399 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 which does not get justice due to the inaction of the court in following the mandate of law must have a remedy. 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 which 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 3-A of the Code is flouted, the aggrieved party, shall be entitled to the right of appeal notwithstanding the pendencey of the application for grant of vacation of a temporary injunction, against the order remaining in force. 23. In the light of the direction issued by the High Court that the trial court should pass final orders on the interlocutory application filed by the plaintiff on merits and in accordance with law, we may further add that till such orders are passed by the trial court, status quo as it prevailed immediately preceding the instirution of the suit would be maintained by the parties.” 24. As will appear from the aforesaid order that the Apex Court has directed the trial court to pass final order on the interlocutory application on merits and till such orders are passed by the trial court, status quo has been directed to be maintained. 25. Counsel for the appellant has relied upon the judgment of B.L. and Co. and others v. Pfizer Products Incl reported in 2001 PTC 797 (Del)(DB) to the following effect :- “18. The above observations apply appropriately to the instant case. We may also observe that there is no merit in the respondent’s contention that it only recently came to know of the appellant’s launch of its product PENGERA in January, 2001. The respondent claims to be a multi-national Corporation with turn over in Billions of Dollars with its products being sold in over 147 countries in the world. Such a Corporation can be expected to have its extensive communication network where it constantly surveys the markets and devises its future plans and strategies. In these facts, it is idle to contend that it was only in a recent internet search that the respondent learnt of the launch of the appellants’ product in January, 2001. Such a Corporation can be expected to have its extensive communication network where it constantly surveys the markets and devises its future plans and strategies. In these facts, it is idle to contend that it was only in a recent internet search that the respondent learnt of the launch of the appellants’ product in January, 2001. In fact the respondent’s own documents belie this assertion as its Vice-President (Corporate) issued the statements, wherein he commented on the launch of similar products as that they could enter the market it any subsequent time. The respondents knew all along as is evident from the documents filed by the respondents on record of the launch of the appellant’s product, but they chose to wait till the appellant had developed them for one year and had obtained the requisite permission for its manufacture. Even after commencement of manufacture, the respondents did not take action for nearly 5 months and came to the Court only 31.5.2001. 26. Further in the case of B.L. and Co. and others (supra), the Hon’ble Court has observed in paragraph 24-25 as under :- “24. At this stage, we may also note that the learned counsel for the appellant with a view to demonstrate the appellant’s bona fides has submitted that to dispel even the slightest doubt, the appellant No. 2 undertakes to change the colour of their tablet from BLUE to another colour henceforth. Further, the appellants would also not use and display their website till it was modified to ensure that there is no substantial adaptation whatsoever from the website of the respondents. Learned counsel further undertakes that the appellants would maintain records and file them in Court with regard to the manufacture of sales of their products PENEGRA and abide by such directions as may be given by the Court. 25. We accept the above undertakings. The appellants shall duly file monthly statement giving details of the total number of PENEGRA tablets manufactured in different strengths, prices thereof and the sale revenue therefrom.” 27. In view of the aforesaid, remedy being available to the appellant to file the objections under Order 39 Rule 4 of Code of Civil Procedure, controverting the documents filed by the plaintiff. The appellants shall duly file monthly statement giving details of the total number of PENEGRA tablets manufactured in different strengths, prices thereof and the sale revenue therefrom.” 27. In view of the aforesaid, remedy being available to the appellant to file the objections under Order 39 Rule 4 of Code of Civil Procedure, controverting the documents filed by the plaintiff. Unless and until the defendants appear before the court and file the rebuttal of the plaint allegations and the documents in support of it with regard to infringement of patent, no inference can be drawn that the defendants have not violated the provisions of the Patents Act, for which the suit has been filed. 28. Coming to the submission no. (ii) that mere grant of patent could not be a ground of injunction, counsel for the appellant has referred the judgment of Doda House & Patel Field Marshall v/s S.K. Maingi & P.M. Diesel Ltd. reported in 2006 (32) P.T.C.-1 (S.C.) to the following effect :- “46. The short question which arises for consideration is as to whether causes of action in terms of both the 1957 Act and the 1958 Act although may be different, would be a suit be maintainable in a court only because it has the jurisdiction to entertain the same in terms of Section 62(2) of the 1957 Act? 47. A cause of action in a given case both under the 1957 Act as also under the 1958 Act may be overlapping to some extent. The territorial jurisdiction conferred upon the court in terms of the provisions of the Code of Civil Procedure indisputably shall apply to a suit or proceedings under the 1957 Act provides for an additional Forum. Such additional Forum was provided so as to enable the author to file a suit who may not otherwise be in a position to file a suit at different places where his copyright was violated. The Parliament while enacting the Trade and Merchandise marks Act in the year 1958 was aware of the provisions of the 1957 Act. It still did not choose to make a similar provision therein. Such an omission may be held to be a conscious action on the part of the Parliament. The intention of the Parliament in not providing for an additional Forum in relation to the violation of the 1958 Act is, therefore, clar and explicit. It still did not choose to make a similar provision therein. Such an omission may be held to be a conscious action on the part of the Parliament. The intention of the Parliament in not providing for an additional Forum in relation to the violation of the 1958 Act is, therefore, clar and explicit. The Parliament while enacting the Trade Marks Act, 1999 provided for such an additional Forum by enacting sub-section (2) of Section 134 of the Trade Marks Act. The court shall not, it is well settled, readily presume the existence of jurisdiction of a court which was not conferred by the statute. For the purpose of attracting the jurisdiction of a court in terms of sub-section (2) of Section 62 of the 1957 Act, the conditions precedent specified therein must be fulfilled, the requisites wherefor are that the plaintiff must actually and voluntarily reside to carry on business or personally work for gain. 57. For the purpose of invoking the jurisdiction of a court only because two causes of action joined in terms of the provisions of the Code of Civil Procedure, the same would not mean that thereby the jurisdiction can be conferred upon a court which had jurisdiction to try only the suit in respect of one cause of action and not the other. Recourse to the additional Forum. However, in a given case, may be taken if both the causes of action arises within the jurisdiction of the court which otherwise had the necessary jurisdiction to decide all the issue.” 29. Counsel for the appellants has referred Section 104 of the Patents Act which provides as under :- “104. Jurisdiction :- No suit for a declaration under section 105 or for any relief under section 106 or for infringement of a patent shall be instituted in any court inferior to a ditrict court having jurisdiction to try the suit: Provided that where a counter-claim for revocation of the patent is made by the defendant, the suit, along with the counter-claim, shall be transferred to the High Court for decision.” 30. However, Section 107 of the patents Act provides as under :- “107. Defences, etc., in suits for infringement. — (1) In any suit for infringement of a patent every ground on which it may be revoked under section 64 shall be available as a ground for defence. However, Section 107 of the patents Act provides as under :- “107. Defences, etc., in suits for infringement. — (1) In any suit for infringement of a patent every ground on which it may be revoked under section 64 shall be available as a ground for defence. (2) In any suit for infringement of a patent by the making, using or importation of any machine, apparatus of other article or by the using of any process or by the importation, use or distribution or any medicine or drug, it shall be a ground for defence that such making, using, importation of distribution is in accordance with any one or more of the conditions specified in section 47.” 31. Once the plaintiff has come with the specific case regarding the infringement of patent, the court may direct the defendants to prove the process adopted by him by deriving the products identical to the products of the patentive process is different from the patented process. The defendants have not exercised their rights of Section 104(a) and, as such, it will be open for them to exercise that defence before the trial court. 32. So far as the rights of the defendants are concerned, the same are still to be decided and it is a premature stage and any finding on the rights of the defendants, will prejudice their rights available to them before the trial court. 33. Coming to the submission no. (iii) advanced by the counsel for the appellants with regard to territorial jurisdiction, counsel for the respondent has referred the judgment of Exphar Sa and another v. Eupharma Laboratories Ltd. and another reported in 2004(3) SCC 688 to the following effect :- “11. The Division Bench has also erred in its construction of Section 62 of the Copyright Act, 1957, Section 62 reads : “62. Jurisdiction of court over matters arising under this Chapter. — (1) Every suit or other civil proceeding arising under this Chapter in respect of the infringement of copyright in any work or the infringement of any other right conferred by this Act shall be instituted in the District Court having jurisdiction. Jurisdiction of court over matters arising under this Chapter. — (1) Every suit or other civil proceeding arising under this Chapter in respect of the infringement of copyright in any work or the infringement of any other right conferred by this Act shall be instituted in the District Court having jurisdiction. (2) For the purpose of sub-section (1), a ‘District Court having jurisdiction’ shall, notwithstanding anything contained in the Code of Civil Procedure, 1908 (5 of 1908), or any other law for the time being in force, include a District Court within the local limits of whose jurisdiction, at the time of the institution of the suit or other proceeding, the person instituting the suit or other proceeding or, where there are more than one such persons, any of them actually and voluntarily resides or carries on business or personally works for gain. 12. We would like to emphasise the word “include”. This shows that the jurisdiction for the purposes of Section 62 is wider than that of the court as prescribed under the Code of Civil Procedure, 1908. The relevant extract of the report of the Joint Committee published in the Gazette of India dated 23.11.1956 which preceded and laid the foundation for Section 62(2) said : “In the opinion of the Committee many authors are deterred from instituting infringement proceedings because the court in which such proceedings are to be instituted is situated at a considerable distance from the place of their ordinary residence. The Committee feels that this impediment should be removed and the new sub-clause (2) accordingly provides that infringement proceedings may be instituted in the District Court wihtin the local limits of whose jurisdiction the person instituting the proceedings ordinarily resides, carries on business etc.” 34. A similar matter has come to the Apex Court in Godfrey Philips India Ltd. v. Girnar Food and Beverages (P) Ltd. (2004) 5 Supreme Court Cases 257, where the Apex Court has observed as under :- “1. The appellant sells tea under what it calls “an umbrella trade mark”, namely, “Tea City”. According to the appellant there are different kinds of tea which are old under this umbrella trade amrk with specific trade marks in respect of particular kinds of tea. One of the kinds of tea sold in this manner is “SUPER CUP” which pertains to extra strong CTC Tea. According to the appellant there are different kinds of tea which are old under this umbrella trade amrk with specific trade marks in respect of particular kinds of tea. One of the kinds of tea sold in this manner is “SUPER CUP” which pertains to extra strong CTC Tea. The appellant claims that it has been selling such tea under the trade mark “SUPER CUP” since 1987-88 and had not only invested a large amount in advertising this particular product but had effected large sales as a result of which the appellant had built up goodwill and reputation in respect of the name “SUPER CUP” and that the customers had come to associate that mark with the appellant’s extra strong CTC Tea. 2. On the allegation that the respondent, also in the tea business, had wrongfully used the words “SUPER CUP” by the respondent and praying for an injunction to restrain the respondent from doing so and for other consequential reliefs. 3. The appellant filed an application in the suit for an interim injunction. This was allowed by the learned Single Judge. The respondent appealed before the Division Bench. The Division Bench allowed the appeal. It upheld the learned Single Judge’s opinion that the appellant’s products had displayed the mark “SUPER CUP” prominently and “Tea City” did not occupy a prominent position and rejected the respondent’s submission that the trade mark of the appellant was a composite one of “Tea City SUPER CUP”. The Division Bench also upheld the single Judge’s opinion that the appellant’s trade mark was “SUPER CUP”. However, the Division Bench held that the words “Super referred to the character or quality of the tea and was merely a laudatory word and the word “CUP” referred to a cup of tea. Accordingly, the conclusion of the Division Bench was that the phrase “SUPER CUP” was descriptive and laudatory of the goods of the appellant and, therefore, the appellant was not entitled to any order of injunction. 4. Without going into the question whether the conclusion arrived at by the Division Bench that the trade mark is descriptive is correct or not, it appears to us, and as is conceded by both parties before us, that the enunciation of the principle of law with regard to the protection available even in respect of the descriptive trade mark was wrong. A descritive trade mark may be entitled to protection if it has assumed a secondary meaning which identifies it with a particular product or as being from a particular source. We, therefore, remand the matter back to the Division Bench of the High Court so that it may address its mind to this question without disturbing the other conclusions arrived at this stage. In the event the Division Bench answered the additional issue formulated by us against the appellant, it will be open to the appellant to raise all the issues which have already been concluded and which are the subject-matter of this appeal in any further Bench. The Division Bench is directed to dispose of the appeal as expeditiously as it conveniently possible. It is made clear that the trial of the suit may also be proceeded with and concluded expeditoiusly without being inhibited either by the pendency of the appeal or by any observation in the orders of the High Court on the interlocutory application.” 35. Relying upon the aforesaid decision, in a similar circumstances, the Apex Court in M/s Heinz Italia and another v. M/s Dabur India Ltd. 2007 (68) ALR 658-SCC (2007) 6 SCC 1 has observed to the following effect:- “5. Dr. Singhvi, the learned Senior Counsel for the appellants has first and formost argued that the mark “Glucon-D” used by “Glaxo” since the year 1940 had been registered as a trademark in the year 1975 whereas it appears that the term “Glucose-D” had come into use some time in the year 1989 and as prior user was a cardinal test in cases of infringement and “Passing off”, this fact alone would suffice for the purpose of securing an order of ad-interim injunction. He also pleaded that as the packaging in green and the depiction of a “happy family” superimposed thereon had been used by the appellants since the year 1980 and by Glaxo for about decade earlier, the prior user also stood proved on record, and an injunction should thus follow. He has in this connection placed reliance on Century Traders v. Roshan Lal Duggar & Co. AIR 1978 Delhi 250, and Cadila Healthcare Ltd. v. Cadila Pharmaceuticals Ltd. 2001 PTC 300 (SC). He has in this connection placed reliance on Century Traders v. Roshan Lal Duggar & Co. AIR 1978 Delhi 250, and Cadila Healthcare Ltd. v. Cadila Pharmaceuticals Ltd. 2001 PTC 300 (SC). He has also pleaded that the mark “Glucon-D” with its packaging had earned a reputation in the market and it was the intention of the respondent to dishonestly appropriate his goodwill which was impermissible in view of the judgments in Corn Products Refining Co. v. Shangrila Food Products Ltd. AIR 1960 SC 142 and in Midas Hygiene Indstries P. Ltd. v. Sudhir Bhatia and others 2004 (28) PTC 121 (SC). It has further been pleaded that the word “Glucose-D’ was not a generic word but even assuming it to be so, an injunction could still follow in special circumstances and reference has been made to Godfrey Philips India Ltd. v. Girnar Food & Beverages (P) Ltd. (2004) 5 SCC 257. “11. .....In Cadila Healthcare case (supra), it has also been held that in the case of a passing off action the similarities rather than the dissimilarities have to be taken note of by the Court and the principle of phonetic “similarity” cannot be ignored and the test is as to whether a particular mark has obtained acceptability in the market so as to confuse a buyer as to the nature of product he was purchasing. We observe that the both Glucon-D and Glucose-D are items containing glucose and to us it appears that there is remarkable phonetic similarity in these two words.” “We are of the opinion that the packaging of glucose-D and Glucon-D is so similar that it can easily confuse a purchaser. We also feel that mere fact that the respondents have time and again made small changes in their packaging is an attempt to continue to mislead the purchaer and to make it more difficult for the appellants to protect their mark, which the record shows has acquired an enviable reputation in the market which is sought to be exploited by the respondent.” 13. We accordingly set aside the order of the trial court dated 11th December, 2003 and the order of the High Court dated 27th October, 2005. However, as this order is confined only to the limited question of an ad-interim injunction, any observation made in this order would not bind the trial judge in the proceedings in the suit. We accordingly set aside the order of the trial court dated 11th December, 2003 and the order of the High Court dated 27th October, 2005. However, as this order is confined only to the limited question of an ad-interim injunction, any observation made in this order would not bind the trial judge in the proceedings in the suit. The application for ad interim injunction is accordingly allowed in terms of prayer clause (ii) of the application.” 36. Order 39 Rule 4 of Code of Civil Procedure has already been reproduced above. As will appear from the Order 39 Rule 4 of Code of Civil Procedure that it provides an opportunity of hearing where the injunction has been granted without issuing notice to the other side. 37. In view of the aforesaid provision contained under Order 39 Rule 4, liberty is given to the appellants to file the objections in reply to the injunction application filed under Order 39 Rule 4 of Code of Civil Procedure within a period of one month after the receipt of the certified copy of the order. The District Judge shall decide the same within a period of another one month, if possible. 38. In view of the above, appeal is liable to be dismissed at this stage. 39. Consequently, appeal is dismissed. No order as to costs.