Reva Khetrapal, J.:- 1. In this appeal, notice was issued on 15.05.2009 with the following order:- "CM Nos. 7081/2009 & 7082/2009 (Exemption) Exemptions sought in the applications are allowed, subject to all just exceptions. The applications are disposed of. FAO(OS) 192/2009 & CM No. 7080/2009 (Stay) Issue notice to the respondent, returnable on 16th July, 2009. In the meanwhile, the pendency of the appeal will not stand in the way of the learned Single Judge to dispose of the applications under Order 39 Rule 1 & 2 and under Order 39 Rule 4. Notice to be served dasti in addition." 2. After the passing of the aforesaid order, the learned counsel for the parties represented that they were trying to settle the dispute and thereafter that the efforts being made to settle the dispute had proved unsuccessful. Consequently, with the consent of the parties, this appeal is taken up for hearing. 3. A few essential facts need to be noted at the outset. On 12.01.2009, a learned Single Judge of this Court on the basis of the averments made in the plaint in CS(OS) No. 40/2009 and IA No. 276/2009 under Order XXXIX Rules 1 and 2 CPC passed the following restraint order:- "12.01.2009 Present: Mr. Sanjeev Singh for the plaintiff IA Nos. 277-79/2009 (exemption) in CS(OS) No. 40/2009 Exemptions as prayed for are granted subject to all just exceptions. CS(OS) No. 40/2009 and IA No. 276/2009 (u/O 39 Rule 1 and 2 CPC) The plaintiff has filed the suit against the defendants under Sections 134, 135 of the Trade Mark Act, 1999 seeking permanent injunction restraining the defendant from causing infringement of plaintiff s trade name 'Amrit Banaspati Co. Ltd.' and the trade mark 'AMRIT' in respect of its goods manufactured by it, i.e. edible oils, refined oils, Banaspati ghee etc. The defendant is stated to be using a trade mark 'AMRIT GOLD' in respect of the same product manufactured by the plaintiff and is alleged to be passing off its goods as that of the plaintiff. I have gone through the plaint and the related documents filed therewith. A perusal of the impugned trade mark of the plaintiff and that of the defendant which are at pages 1 and 2 of Part-III file shows that defendant is attempting to pass of its goods as that of the plaintiff. I have gone through the plaint and the related documents filed therewith. A perusal of the impugned trade mark of the plaintiff and that of the defendant which are at pages 1 and 2 of Part-III file shows that defendant is attempting to pass of its goods as that of the plaintiff. The trade mark 'AMRIT' is registered in favour of the plaintiffs and details of registration are given in para 15 at page 5 of the plaint. The plaintiff, therefore, has made out a prima facie case for restraining the defendant from using the impugned trade mark 'AMRIT' in relation to its products which are manufactured by the plaintiff also as it is likely to cause deception in the mind of user of the said product. The test of triple identity is satisfied in the present case. Accordingly, the defendant is hereby restrained from using the impugned trade mark 'AMRIT GOLD' or any other mark which is deceptively similar to the said mark in relation to its products till next date of hearing. Issue summons of the suit and notice of the injunction application (IA NO. 276/2009) to the defendant on filing of process fee and registered AD covers returnable on 27.2.2009. Compliance of Order 39 Rule 3 CPC be made." 4. Upon being served with summons of the suit and notice of the injunction application (IA No. 276/2009), the appellant filed an application under Order XXXIX Rule 4 CPC, being IA No. 2792/2009 seeking vacation of the interim injunction order passed by the learned Single Judge on 12.01.2009, in which the following order was passed on 27.02.2009:- "IA No. 2792/2009 (under Order 39 Rule 4 CPC) in CS(OS) No. 40/2009 This is an application under Order 39 Rule 4 CPC filed on behalf of the defendant seeking vacation of the interim injunction order passed by this court on 12.01.2009. Ms. Ritu Chauhan accepts notice of this application on behalf of the petitioner and requests for time for filing of reply to the said application. Reply be filed within three weeks. Rejoinder, if any, within two weeks thereafter. List this application for hearing on 20.04.2009. Interim orders to continue in the meanwhile." 5. Ms. Ritu Chauhan accepts notice of this application on behalf of the petitioner and requests for time for filing of reply to the said application. Reply be filed within three weeks. Rejoinder, if any, within two weeks thereafter. List this application for hearing on 20.04.2009. Interim orders to continue in the meanwhile." 5. On 20th April, 2009, the learned counsel for the respondent made a statement before the learned Single Judge that she had filed her reply to the application under Order XXXIX Rule 4 CPC in the Registry on the same day, i.e., the date fixed for hearing of the application. The learned Single Judge accordingly directed the Registry to place the reply of the respondent on record, at the same time directing the appellant to file rejoinder to the reply, if any, within two weeks, and listed the application for hearing on 13.07.2009. The order dated 20.04.2009 reads as follows:- "IA No. 2792/2009 (u/O 39 R 4 CPC) in CS(OS) No. 40/2009 Ms. Ritu Chauhan, learned counsel appearing on behalf of the plaintiff says that she has filed her reply to this application in the Registry today morning. Registry is directed to place the reply of the plaintiff on record. Rejoinder to the reply, if any, be filed within two weeks. List this application for hearing on 13.07.2009. Interim orders to continue in the meanwhile." 6. Almost simultaneously the respondent, presumably with a view to sidetrack the application under Order XXXIX Rule 4 CPC for vacation of the ex parte injunction order, moved an application under Order VI Rule 17 CPC seeking amendment of the plaint. The said application was listed before the learned Single Judge four days later, i.e., on 24.04.2009, when the learned Single Judge passed the following order:- "IA No. 5421/2009 (u/O 6 R 17 CPC) in CS(OS) No. 40/2009 This is an application under Order 6 Rule 17 CPC filed by the plaintiff seeking amendment in the plaint. Issue notice of this application to the defendant through counsel on filing of process fee returnable on date already fixed, i.e. 13.07.2009." 7. Issue notice of this application to the defendant through counsel on filing of process fee returnable on date already fixed, i.e. 13.07.2009." 7. The learned counsel for the appellant states that the ex parte ad interim injunction order dated 12.01.2009 was obtained by the respondent Company by suppressing material facts and playing a fraud upon the Court and accordingly the application under Order XXXIX Rule 4 CPC for vacation of the said ex parte order was filed by the appellant Company immediately on coming to know of the same, on the premise that the respondent had deliberately not disclosed in the plaint before the learned Single Judge the true and correct facts and, therefore, the said ex parte ad interim injunction was liable to be vacated with immediate effect. According to the learned counsel for the appellant, the respondent in the plaint had deliberately suppressed the crucial fact that the respondent had opposed the appellant's trademark application in the year 2005 and since then the parties were interlocked in an ongoing litigation before the Trademarks Registry. Instead, the respondent had very cleverly and deliberately stated in the plaint that the cause of action first arose in the first week of December, 2008 and thereby crafted a false cause of action. The said nondisclosure on behalf of the respondent was with a view to obtain an ex parte injunction in its favour. However, when the appellant filed its written statement as well as its application under Order XXXIX Rule 4 CPC for vacation of stay, the respondent immediately adopted the device of filing an application under Order VI Rule 17 CPC, thereby virtually admitting the facts stated by the appellant in its written statement and application under Order XXXIX Rule 4 CPC. The very act of filing the said application, according to the learned counsel for the appellant, demonstrated that the respondent, knowing fully well that it had come before this Court after a period of four years from the date of the acrual of the cause of action, had obtained an ex parte ad interim stay against the appellant by not disclosing the crucial facts so as to tilt equitable considerations including the balance of convenience in its favour and against the appellant. 8. 8. Thus, the appellant is essentially aggrieved by the fact that instead of the disposal of the application of the appellant under Order XXXIX Rule 4 CPC as indicated by this Court in the 15th of May, 2009 order, the learned Single Judge had listed the application for amendment filed by the respondent under Order VI Rule 17 CPC along with the application under Order XXXIX Rule 4 CPC on 13th July, 2009. 9. The learned counsel for the appellant was at pains to emphasise that it was pursuant to the filing of the written statement by the appellant and the application under Order XXXIX Rule 4 CPC that the respondent filed the application under Order VI Rule 17 CPC for the amendment of the plaint. The learned counsel for the appellant submits that the appellant will be satisfied in case the learned Single Judge is directed to dispose of the application filed under Order XXXIX Rule 4 CPC before considering the respondent's application under Order VI Rule 17 CPC. 10. The learned counsel for the respondent on the other hand sought to justify the non-disclosure of the alleged crucial facts in the plaint on account of the "flurry of activities", "lack of coordination", "oversight" and "inadvertence". It was stated by the learned counsel that the respondent Company had not knowingly suppressed the facts pertaining to the appellant's trademark application and the opposition filed by the respondent Company. It was also stated that only those facts are material which have the propensity of swaying the judicial mind of the Court upon disclosure thereof and the non-disclosure of which would result in the grant of ex parte ad interim injunction by the Court. Reference in this regard was made to several judgments of the Hon'ble Supreme Court and the High Courts, including S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and Others, (2004) 7 SCC 166 , Pankaj Jaiswal and Ors. v. Virendra Prasad Jaiswal and Ors., 2007 (35) PTC 761 (Cal.) (DB), Colgate-Palmolive Co. & Anr. v. Sundeep Enterprises 1995 PTC (15) 389 and Hidesign v. Hi-Design Creations, 1991 (11) PTC 178 (Del), with which I do not propose to burden the record. It was also urged by the learned counsel for the respondent that it was not permissible in law. & Anr. v. Sundeep Enterprises 1995 PTC (15) 389 and Hidesign v. Hi-Design Creations, 1991 (11) PTC 178 (Del), with which I do not propose to burden the record. It was also urged by the learned counsel for the respondent that it was not permissible in law. for the appellant to require this Court to look into the defence raised by the appellant for vacation of the ad interim injunction order, which is yet to be considered by the learned Single Judge and in any case delay, laches, acquiescence and the like are not by themselves grounds for refusal of interim injunction nor the same can be a ground for vacation of an injunction order granted by the Court. The effect of concealment of prior litigation, delay, laches and acquiescence, it was stated, had been extensively dealt with by a Division Bench of this Court in the case of Pankaj Goel v. Dabur India Ltd., 2008 (38) PTC 49 (Del) (DB) to hold that in a given case delay, laches and acquiescence cannot be a ground for refusing interim relief. 11. In our view, it is undoubtedly not open to this Court to look into the defence raised by the appellant for vacation of the ad interim injunction order which is yet to be considered by the learned Single Judge. We, therefore, do not propose to enter into the factual merits of the application filed by the respondent under Order XXXIX Rules 1 and 2 CPC and the application seeking vacation of the stay filed by the appellant under Order XXXIX Rule 4 CPC, but at the same time we find merit in the plea of the learned counsel for the appellant that it was incumbent upon the learned Single Judge to first dispose of the application filed under Order XXXIX Rule 4 CPC before considering the respondent's application under Order VI Rule 17 CPC. We say so as the ex parte ad interim order dated 12th January, 2009 was secured on the basis of the pleadings prior to the amendment sought by the respondent. We are of the view that when an ex parte ad interim injunction is secured on the basis of certain averments made in the plaint the vacation or confirmation of the said order must necessarily be adjudged on the basis of the very same pleadings. We are of the view that when an ex parte ad interim injunction is secured on the basis of certain averments made in the plaint the vacation or confirmation of the said order must necessarily be adjudged on the basis of the very same pleadings. Thus, the touch stone for vacation of an ex parte order must be the pleadings of the parties prior to the filing of the amendment application. The result of our holding otherwise would be to enable a party to rush to this Court post haste without making a full disclosure of all the facts within its knowledge and to subsequently seek incorporation of the said facts in the plaint by way of amendment while in the meantime continuing to enjoy the ex parte order obtained by it fraudulently and dishonestly. 12. As stated above, we do not propose to go into the aspect of whether the non-disclosure in the instant case was of a material fact or not and as to whether it was deliberate or bona fide and we leave the said exercise to be performed by the learned Single Judge. In our view, however, it stands to reason that the grant of an interim relief in an interlocutory application must be based upon the averments made in the plaint and the application seeking interim relief. Whether the interim relief prayed for is to be granted, made absolute or vacated on the basis of certain pleadings must be weighed on the strength of the said pleadings when the Court is considering an application under Order XXXIX Rule 4 CPC. 13. In a recent judgment of the Hon'ble Supreme Court in the case of Revajeetsu Builders and Developers v. Narayanaswamy and Sons and Ors. Civil Appeal No. 6921/2009 [arising out of SLP No. 1552/2007] decided on 09.10.2009, the Hon'ble Supreme Court observed that Order VI Rule 17 is one of the important provisions of the CPC, but it had no hesitation in observing that this is one of the most misused provision of the Code for dragging the proceedings indefinitely, particularly in the Indian Courts which are otherwise heavily burdened. Paragraphs 29 to 32 of the judgment, which are apposite, read as follows:- "29. Paragraphs 29 to 32 of the judgment, which are apposite, read as follows:- "29. In our considered view, Order VI Rule 17 is one of the important provisions of the CPC, but we have no hesitation in also observing that this is one of the most misused provision of the Code for dragging the proceedings indefinitely, particularly in the Indian courts which are otherwise heavily overburdened with the pending cases. All Civil Courts ordinarily have a long list of cases, therefore, the Courts are compelled to grant long dates which causes delay in disposal of the cases. The applications for amendment lead to further delay in disposal of the cases. 30. It may be pertinent to mention that with a view to avoid delay and to ensure expeditious disposal of suits, Rule 17 was deleted on the recommendation of Justice Malimath Committee by the Code of Civil Procedure (Amendment) Act, 1999 but because of public uproar, it was revived. Justice C.K. Thakker, an eminent former Judge of this Court in his book on Code of Civil Procedure (2005 Edition) incorporated this information while dealing with the object of amendment. 31. In a recently published unique, unusual and extremely informative book "Justice, Courts and Delays", the author Arun Mohan, a Senior Advocate of the High Court of Delhi and of this Court, from his vast experience as a Civil Lawyer observed that 80% applications under Rule VI Order 17 are filed with the sole objective of delaying the proceedings, whereas 15% application are filed because of lackadaisical approach in the first instance, and 5% applications are those where there is actual need of amendment. His experience further revealed that out of these 100 applications, 95 applications are allowed and only 5 (even may be less) are rejected. According to him, a need for amendment of pleading should arise in a few cases, and if proper rules with regard to pleadings are put into place, it would be only in rare cases. Therefore, for allowing amendment, it is not just costs, but the delays caused thereby, benefit of such delays, the additional costs which had to be incurred by the victim of the amendment. The Court must scientifically evaluate the reasons, purpose and effect of the amendment and all these factors must be taken into consideration while awarding the costs. 32. Therefore, for allowing amendment, it is not just costs, but the delays caused thereby, benefit of such delays, the additional costs which had to be incurred by the victim of the amendment. The Court must scientifically evaluate the reasons, purpose and effect of the amendment and all these factors must be taken into consideration while awarding the costs. 32. To curtail delay in disposal of cases, in 1999 the Legislation altogether deleted Rule 17 which meant that amendment of pleading would no longer have been permissible. But immediately after the deletion there was widespread uproar and in 2002 Rule 17 was restored, but added a proviso. That proviso applies only after the trial has commenced. Prior to that stage, the situation remains as it was. Accord­ing to the view of the learned author Arun Mohan as observed in his book, although the proviso has improved the position, the fact remains that amendments should be permissible, but only if a sufficient ground therefore is made out, and further, only on stringent terms. To that end, the rule needs to be further tightened." 14. The above position of law laid down by the Hon'ble Supreme Court is instructive and must inform and guide our approach in the present case. It also cannot be lost sight of that in a given case for the Court to become instrumental in delaying the disposal of an application under Order XXXIX Rule 4 CPC merely because an application for amendment of the plaint has been subsequently filed by the party availing the benefits of an ex parte injunction order would certainly work injustice on the other party, for, if the amendment application is subsequently rejected by the Court on the ground that a valuable right had in the meanwhile accrued to the other party the damage caused to the said party by the subsistence of the ex parte and interim injunction order over a prolonged span of time could be both unjust and inequitable and in certain cases irreversible. Thus when interim orders are obtained on particular pleadings, the confirmation/vacation of such an order must only be on the basis of such pleadings and the consideration of application for amendement under Order VI Rule 17 CPC must await the determination the application under Odder XXXIX Rules 1 and 2 CPC and Order XXXIX Rule 4 CPC, if any. 15. Thus when interim orders are obtained on particular pleadings, the confirmation/vacation of such an order must only be on the basis of such pleadings and the consideration of application for amendement under Order VI Rule 17 CPC must await the determination the application under Odder XXXIX Rules 1 and 2 CPC and Order XXXIX Rule 4 CPC, if any. 15. In the above view of the matter, the learned Single Judge shall consider and dispose of the application filed under Order XXXIX Rule 4 CPC first and consider the application under Order IV Rule 17 only thereafter. 16. With the aforesaid observations and derections, FAO(OS) 192/2009 and CM No. 7080/2009 stand disposed of.