ORDER (1) The above writ petitions are partly allowed by holding that the order of the trial Court dated 1/10/2011 Annexure ‘AB’ to the extent of refusing to consider the prayer of grant of ex-parte ad-interim injunction is erroneous and are hereby quashed. (2) The trial Court shall consider the prayer of the plaintiffs on I.As.I to III independently, as observed herein above. (3) The petitioner-plaintiff is at liberty to move the trial Court for advancement of the above case with a prayer to consider the applications I.As.I to III. (4) The trial Court as observed herein above, would be at liberty to consider and pass orders on merits of the case and in accordance withy law. However, it is also made clear that in the event of defendants have appeared in the suit pursuant to summons/notices issued, trial court shall afford the defendants an opportunity and dispose of the applications expeditiously. Cases Referred : 1)Bajaj Auto Limited Vs TVS Motor Company Limited 2)Shree Vardhman Rice & General Mills v. Amar Singh Chawalwala (2009) 10 SCC 257 3) Gangubai Babiya Chaudhary and others Vs Sitharam Bhaichandra Sukhtankar and others reported in AIR 1983 SC 742 4) Chandu Lal Vs Municipal Corporation of Delhi reported in AIR 1978 Delhi 174, 5) Jagjit Singh Khanna Vs Dr.Rkhai Das Mullick and anr reported in AIR 1988 Calcutta 6) P.Chidambaram, General Secretary, Gujarat Mazoor Panchayat and others Vs Joint Civil Judge (J.D), Narol, Ahmedabad and others reported in AIR 1986 Gujarat 7) M/s. Industrial Credit & Development Syndicate v. B.Suryanarayana Bhat [AIR 1986 Kar.98], 8) R v Kensington Income Tax Courts, 9)Anton Piller K.G. v. Manufacturing Processes Limited, Bernard Preston Wallace and Alfred Henry Stephen Banker, reported in (1975) EWCA Civ. 12 10)R v Kensington Income Tax Courts, Judgment :- 1. In these writ petitions order dated 01.10.2011 (Annexure-AB) passed by XVIII Additional City Civil Judge, Bangalore on I.A.Nos.1/2011, 2/2011 and 3/2011 in O.S.No.7109/2011 is sought for being quashed and a mandamus is sought to learned trial Judge to pass considered orders on applications for temporary injunction as prayed for in terms of I.A.No.1 to 3. 2. Heard Sri.B.C.Thiruvengadam, learned counsel appearing for petitioner. 2. Heard Sri.B.C.Thiruvengadam, learned counsel appearing for petitioner. Notice to respondents is not ordered/issued for two reasons: (i) These writ petitions are filed by plaintiff against exparte order of trial court namely these writ petitions are filed by plaintiff against order of trial court refusing to consider the prayer for grant of exparte ad interim order i.e., before service of notice on defendants. (ii) No orders adverse to the interest of defendants are passed in these writ petitions. 3. Brief facts of the case leading to filing of these writ petitions are as under:- Petitioner/ plaintiff is a proprietary concern engaged in the manufacture and supply of stationery goods. It has been contended in the suit that it ha been manufacturing its goods since 1978 and selling such stationery goods in India. Petitioner also contends that to avail statutory protection in addition to the available common law protection for the trade mark “NANDI” which has already been in use on commercial scale in India since the year 1978 it has obtained registration of said trade mark under Indian Trade Marks Act, 1999 bearing registration No.394947 in respect of “all types of files and stationery” in Class 16 and said registration was granted on 06.09.1982 and has been renewed from time to time and said trade mark is valid upto 06.09.2010. It is also stated that petitioner is the author and first owner of original, artistic style, presentation, arrangements of elements, colour combination of trade mark “NANDI”. It is also contended that petitioner has secured Indian Copyright Registration for the original artistic content in the said trade mark “NANDI” by Copyright certificate No.A-71260/2005 dated 29-04-2005 from the Indian Copyright Registry under the provisions of Indian Copyright Act, 1957. It is contended that petitioner has spend considerable amount of time and money in promoting the goods bearing trade mark “NANDI” by visual advertisements and ahs incurred huge expenses towards same. It is also stated that petitioner has been issuing caution notice to General Public not to be mislead by counterfeit goods having deceptively similar trade mark, artistic style, presentation, arrangement of elements, colour combination and tag lines as that of petitioner’s trade mark, label and trade dress. 4. It is also stated that petitioner has been issuing caution notice to General Public not to be mislead by counterfeit goods having deceptively similar trade mark, artistic style, presentation, arrangement of elements, colour combination and tag lines as that of petitioner’s trade mark, label and trade dress. 4. It has been contended that petitioner came to know about respondents manufacturing and selling of Office Box, Files that carry deceptively similar logos and trade dress as that of the petitioner’s Office Box Files that carry petitioner’s registered trade mark and copyrighted matter. It is contended that respondent’s trade mark “SHIV NANDI” is visually, phonetically and structurally similar to petitioner’s trade mark “NANDI”. It is contended that an exclusive right is conferred on the petitioner to take action against infringement of its registered trade mark under section 29(1) of Trade Marks Act, 1999 in such manner as to registered use of mark likely to be used as being a trade mark. In this regard it is contended that petitioner filed a private complaint before jurisdictional Magistrate to take cognizance of alleged offence as set forth in the complaint and jurisdictional police have taken up investigation and found that defendants/respondents are carrying out the activity. It is also contended that investigation authorities have seized certain materials and second defendant has been arrested and produced before jurisdictional Magistrate. 5. In this factual background petitioner contends that a suit in O.S.7109/2011 was filed before City Civil and Sessions Court, Bangalore seeking relief of perpetual injunction to restrain the defendants/respondents jointly and severally from carrying out activities in infringing petitioner’s trade mark. It is also stated that along with suit/plaint three applications I.A.1, 2 and 3 were filed by plaintiff seeking urgent exparte ad-interim orders. Said applications were heard on 30-09-2011 by learned trial Judge and listed the matters for orders on 01.10.2011. On 01.10.2011 emergent notice on I.A.1 to 3 and suit summons to respondents has been ordered to be returnable by 29.10.2011 on the ground that Hon’ble Supreme Court has held “that matters relating to trade marks. Copyrights and patents should be finally decided very expeditiously by trial Court instead of merely granting or refusing to grant injunction. It is this order of the trial Court refusing to consider prayer for grant of ex-parte order which is sought for being quashed. 6. Copyrights and patents should be finally decided very expeditiously by trial Court instead of merely granting or refusing to grant injunction. It is this order of the trial Court refusing to consider prayer for grant of ex-parte order which is sought for being quashed. 6. It is the contention of Sri.B.C.Thirvengadum, learned counsel appearing for petitioner that trial court has relied upon the Judgment in the case of Bajaj Auto Limited Vs TVS Motor Company Limited reported in (2009) 9 SCC 797 and has refused to consider the prayer for grant of exparte ad interim order particularly by placing reliance on paragraph 4 of said judgment by contending that Hon’ble Supreme Court in Bajaj Auto case has not stated or held that trial court should not exercise its discretionary power to grant or refuse to grant an exparte order of temporary injunction and submits that power vested with trial court to grant an order of temporary injunction is inherent and such discretionary power can be exercised by trial court to grant or refuse such prayer depending upon the merits of each case and trial court cannot refuse to consider the prayer for grant of an exparte order of ad interim injunction even in respect of matters of extreme urgency and as such he submits that impugned order is liable to be quashed. He would elaborate his submission by contending that trial Judge has failed to take note of the fact that petitioner’s trade mark “NANDI” has been in use since 1978 and since then petitioner has adopted trade mark bonafide and trial Judge has failed to exercise his Jurisdiction vested in him under section 135 of Trade Marks Act, whereunder he is empowered to pass an exparte order of injunction or any other interlocutory orders depending upon the plea put-forward. He would further contend that trial Judge failed to exercise discretionary power by erroneously relying on the observation of Bajaj Auto case referred to supra and contends that Hon’ble Supreme Court in Bajaj Auto case has not prevented the trial court from passing any exparte ad-interim order depending upon facts of each case and it has made it obligatory on the part of trial court to dispose of the case expeditiously as stated in the said order. He would contend that enabling provision of statute for grant of exparte ad-interim order of temporary injunction has not been considered by trial court at all. He would also submit that trial Judge has failed to take into account the material produced by plaintiff for grant of exparte ad-interim order of temporary injunction. On these grounds he seeks for grant of prayer made in the Writ Petition. 7. Having heard learned counsel for petitioner, I am of the considered view that following point arise for my consideration: “Whether the trial court was justified in holding that exparte ad interim temporary injunction cannot be granted?” 8. In order to answer the point formulated herein above, it would be necessary to extract the Judgment of Hon’ble Apex Court which has since been relied upon by trial court to refuse to consider the prayer of petitioner/plaintiff for grant of exparte ad-interim temporary injunction. In the said judgment (Bajaj Auto Limited Vs TVS Motor Company Limited) it has been held as under: 4. Recently, we have held in Shree Vardhman Rice & General Mills v. Amar Singh Chawalwala as follows: “….Without going into the merits of the controversy, we are of the opinion that the matters relating to trade marks, copyrights and patents should be finally decided very expeditiously by the trial court instead of merely granting or refusing to grant injunction. Experience shows that in the matters of trade marks, copyrights and patents, litigation is mainly fought between the parties about the temporary injunction and that goes on for years and years and the result is that the suit is hardly decided finally. This is not proper. Proviso (a) to Order 17 Rule 1(2) CPC states that when the hearing of the suit has commenced, it shall be continued from day-to day until all the witnesses in attendance have been examined, unless the court finds that, for exceptional reasons to be recorded by it the adjournment of the hearing beyond the following day is necessary. The court should also observe clauses 9b) to (c) of the said proviso. The court should also observe clauses 9b) to (c) of the said proviso. In our opinion, in matters relating to trade marks, copyright and patents the proviso to Order 17 Rule 1(2) of CPC should be strictly complied with by all the courts, and the hearing of the suit in such matters should proceed on day-to-day basis and the final judgment should be given normally within four months from the date of the filing of the suit.” As has been observed by us in the aforesaid case, experience has shown that in our country, suits relating to the matters of patents, trade marks and copyrights are pending for years and years and litigation is mainly fought between the parties about the temporary injunction. This is a very unsatisfactory state of affairs, and hence we had passed the above quoted order in the above mentioned case to serve the ends of justice. We carried out by all courts and tribunals in this country punctually and faithfully. 9. In the above referred case namely Bajaj Auto case, the Hon’ble Supreme Court has referred to its earlier Judgment in the case of Shree Vardhaman Rice and General Mills Vs Amar Singh Chawalwala reported in (2009) 10 SCC 257which has been extracted in the said Bajaj Auto Limited case itself. 10. A perusal of the said Judgment would reflect that a direction has been given to all courts in the country to proceed on day to day basis in the matters relating to trade marks, copyrights and patents after commencement of hearing of suit. This dicta is laid down by Hon’ble Apex Court in the context of Order 17 Rule 1(2) and proviso thereunder. The direction issued by Hon’ble Apex Court is binding on all courts including this court and there cannot be any lota of doubt in this regard. It was found by Hon’ble Apex Court on examination of facts in those two cases referred to supra that parties were litigating on the issue of grant/refusal of temporary injunction and suit was not being proceeded on merits and as such direction has been issued to all courts and Tribunals in the country to be followed punctually and faithfully. 11. It was found by Hon’ble Apex Court on examination of facts in those two cases referred to supra that parties were litigating on the issue of grant/refusal of temporary injunction and suit was not being proceeded on merits and as such direction has been issued to all courts and Tribunals in the country to be followed punctually and faithfully. 11. Issue regarding exercise of discretionary power by trial court was not a issue under consideration in the said case namely; As to whether trial court can exercise its discretionary power to grant or reject the prayer for an ad-interim exparte order of temporary injunction? It is this question/issue with regard to exercise of discretionary power by trial court to grant an exparte order of temporary injunction or otherwise which requires to be considered by this court. By reading of above two judgments, I am of the considered view that issue of exercise of discretionary power to grant such relief was not under consideration by Hon’ble Apex Court in Bajaj Auto case referred to supra for the following reasons. 12. Grant of an exparte interim injunction or grant of temporary injunction during the pendency of legal proceedings is a matter requiring exercise of discretion by a court. While exercising such discretion, court applies three tests: (i) Whether the plaintiff has a prima facie case? (ii) Whether the balance of convenience lies in favour of plaintiff or defendant? (iii) Whether the plaintiff would be put to irreparable loss and injury if his prayer for ad interim order of temporary injunction or temporary injunction is refused? 13. At this juncture, judgment of Hon’ble Apex Court in the case of Gangubai Babiya Chaudhary and others Vs Sitharam Bhaichandra Sukhtankar and others reported in AIR 1983 SC 742 is required to be extracted which reads as under: “6. When an interim injunction is sought, the Court may have to examine whether the party seeking the assistance of the Court was at any time in lawful possession of the property and if it is so established one would prima facie ask the other side contesting the suit to show how the plaintiffs were dispossessed? We pin-pointed this question and heard the submission. We pin-pointed this question and heard the submission. We refrain from discussing the evidence and recording our conclusions because evidence is still to be led and the contentions and disputes have to be examined in depth and any expression of opinion by this Court may prejudice one or the other party in having a fair trial and uninhibited decision”. 14. Full Bench of Delhi High Court in the case of Chandu Lal Vs Municipal Corporation of Delhi reported in AIR 1978 Delhi 174, following the Judgment of Hon’ble Supreme Court has explained the circumstances under which temporary injunction can be granted and at the stage at which such jurisdiction can be invoked and same reads as under: “38 Temporary injunction sought by the petitioners could be granted, if their case was covered by the three well-established principles, namely, (1) on making out a prima facie case, (2) on showing balance of convenience in their favour, in that the refusal of the injunction would cause greater inconvenience to them and (3) whether on refusal of the injunction they would suffer irreparable loss. Granting an injunction is a matter of discretion and in its exercise the Court has to satisfy itself whether the petitioners have a triable case. Before invoking the jurisdiction of the Court to seek temporary injunction the petitioners were bound to show that they have a legal right. They have failed to show a legal right. Facts and circumstances, on the contrary, prima facie show that the petitioners on the revocation of the license are trespassers, there exists no justification for allowing them to continue perpetuating their unlawful act. 15. Calcutta High Court in the case of Jagjit Singh Khanna Vs Dr.Rkhai Das Mullick and anr reported in AIR 1988 Calcutta 95 has brought out the scuttled difference between ad interim injunction and temporary injunction vis-à-vis exercise of power by trial court under section 94 of C.P.C. Said dicta laid down by Division Bench of High Court of Calcutta reads as under: “3. It seems that the trial court in refusing ad interim injunction under an application labeled as one under O.39 of the Code and thereafter in granting ad interim injunction on an application purporting to be under S.94 of the Code “till the final disposal of the application under O.39, Rr.1 and 2, C.P.C.” proceeded under the impression that the Code clothes the Courts with two sources of power to grant temporary injunction, one under S.94 of the Code and the other under O.39 of the Code. The impression is wholly erroneous as would appear from a bare perusal of the provisions of S.94(c) of the Code whereunder the Court may grant a temporary injunction only “if it is so prescribed”. The expression “prescribed” in S.94 would obviously mean, as defined in S.2(16) of the Code, “prescribed by Rules”. The Rules which prescribe grant of temporary injunction are R.1 and R.2 of O.39 and, therefore, a temporary injunction may be granted under S.94(c) only if a case satisfying the requirements of Rr.1 and 2, O.39 is made out. As already noted, not that the Court has two sources of power, one under S.94(c) and another under O.39 of the Code and may resort to one or the other as and when necessary, but that under the Code the Court grants temporary injunction only under one set of provisions, namely, S.94(c) read with O.39, Rr.1 and 2 of the Code. It is true that, as pointed out by the Supreme Court in Manohar Lal Vs Seth Hiralal, AIR 1962 SC 527 , a Court can grant temporary injunction in exercise of its inherent powers also, but there it does not grant it under any power conferred by the Code but under powers inhering in its very constitution which are saved by and under S.151 of the ode. The words “ a temporary injunction granted under the last preceding section” in S.95 of the ode indicate that temporary injunction is granted under the provisions of S.94, but the words “any injunction granted…..under R.1 or R.2” in R.2A of O.39 may give rise to the impression that a temporary injunction may be granted independently under the provisions of O.39, Rr.1 and 2 also. But, as already indicated, under the Code a temporary injunction can be granted only under one set of provisions namely, under S.94(c) read with O.39, Rr.1 and 2. 4. But, as already indicated, under the Code a temporary injunction can be granted only under one set of provisions namely, under S.94(c) read with O.39, Rr.1 and 2. 4. Both the applications for ad interim/temporary injunctions must, therefore, be treated as applications under S.94(c) read with O.39 of the Code, even though the first one was labeled as one under O.39 only and the second one as one under S.94 only. The net question, therefore, is that if a Court has refused ad interim injunction and has only issued notice to show cause on an application for temporary injunction, can it, on a subsequent application, grant ad interim injunction till the disposal of the earlier application for temporary injunction. A temporary injunction may, as it very often does, consist of two stages, one granted without finally disposing of the application for injunction to operate immediately till the disposal of the said application and the other granted while finally disposing of the main application to enure generally till the disposal of the suit and while the former is generally classed as ad interim injunction, the latter is generally called temporary injunction. Neither on principle nor on authority we find any bar to the Courts granting ad interim injunction till the disposal of the application for the temporary injunction, if subsequent developments or altered circumstances warrant such grant, even though it has refused to grant the same earlier on the materials then on record. If, however, the materials on record stand as they stood when the ad interim injunction was refused earlier, a grant of ad interim injunction on such materials may not be permissible as that might amount to impermissible review of the earlier order.” 16. Likewise the Division Bench of Gujarat High Court in the case of P.Chidambaram, General Secretary, Gujarat Mazoor Panchayat and others Vs Joint Civil Judge (J.D), Narol, Ahmedabad and others reported in AIR 1986 Gujarat 17 has held that courts should not casually and in a cavalier fashion passed orders while considering the prayer for grant of exparte injunction and has held as under: “3. Rule 3 of O.39 of the Civil P.C. is a very wholesome provision intended to achieve a laudable purpose. Rule 3 of O.39 of the Civil P.C. is a very wholesome provision intended to achieve a laudable purpose. Admittedly injunctions by the Courts are not to be a matter of course and even while the injunctions operate only for a short time, i.e., until the other side appears and contests the matter, by that time damage would have been done and in some cases that be irreparable. There is also the fact that to-day the Courts are so overworked that even if the Court fixes the date for disposing of the injunction application after hearing the parties, it may not be able to do so in time. If that be so at the stage of granting an exparte injunction, it should not act casually and in a cavalier fashion but pass orders only after adverting to all the facts and circumstances of the case. 4. Rule 3 of O.39 provides that 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 to be given to the opposite party. Having understood the facts and the situation, particularly the background of which this Court would be well aware by reason of the earlier resort to this Court, we doubt the propriety of an injunction order of this omnibus nature passed without resort to R.3. It would be only fair that the Court should act in accordance with the rule. We do not want to enter into the merits of the case but we must impress upon the Court the rendering justice calls for proper restraint in the powers conferred upon a Court and to exercise its power only when such exercise is called for. What the consequences of an exparte order would be and what would be the consequences of not passing such an exparte order but waiting for the other side to appear must be weighed by the Court and only in exceptional cases where the Court finds for very good reasons, which it would be advisable for the Court to record in its order, it would be justified in passing an ad interim exparte order of such a grave nature as that in this case.”17. This Court had an occasion to consider the scope of proviso to Order 39 Rule 3 and interpret the same in the case of M/s. Industrial Credit & Development Syndicate v. B.Suryanarayana Bhat [AIR 1986 Kar.98], whereunder, it has been held as follows:-“In this case, unfortunately, though Rule 3 of Order 39 of the Code of Civil Procedure is a mandatory provision, the trial Court has failed to comply with the said provision. Passing of such an order, without complying with Order 39 Rule 3 of the Code of Civil Procedure is highly opposed to law. It has come to the notice of this Court in large number of cases that Order 39 rule 3 of the Code of Civil Procedure lays down the wholesome principle in order to see that the defendant is not put to any injustice and is not thrown out from the property for no fault of his own. However, I would like to impress upon the trial Courts that non-compliance with the mandatory provisions contained in rule 3 of Order 39 is a very grave error, which needs to be viewed seriously. I am sue that the trial Courts will not, thereafter at least, give any room for such lapses.” 18. However, I would like to impress upon the trial Courts that non-compliance with the mandatory provisions contained in rule 3 of Order 39 is a very grave error, which needs to be viewed seriously. I am sue that the trial Courts will not, thereafter at least, give any room for such lapses.” 18. The Court of Appeal in England in the case of Beese and Others (managers of Kimpton Church of England Primary School) and others v. Woodhouse and others [1970 (1) All ER 769], has held the grant of ex-parte temporary injunction is inherent in the Court and after considering the scope of grant of ex-parte applications for injunction has observed as under:-“The points made by counsel for the first three defendants on this appeal are these, First of all, he says (and I confess that to me ti was a starting proposition) that, if, even owing to the difficulties of the court in reaching an application for an interim injunction, a case has to be adjourned until the next day or a later day, the court ought not to grant an exparte injunction, and he referred to a passage in the Supreme Court Practice 1970, which is in these terms: ‘Where notice of motion for an injunction has been give, it is improper to grant it ex parte, if the motion cannot, either through other engagements of counsel or pressure of business in the Court, be brought on…’ As authority for that is cited the case of Graham v Campbell, We were referred to that case where, indeed, there are observations in the judgment which do in terms so state. It is a judgment of this court, and it was a strong court, James, Cotton and Thesiger Ljj. The relevant passage is where James LJ in delivering the judgment of the court said: “In assertion of their claim for specific performance the Plaintiffs asked for an injunction to restrain the Defendants Campbell and Ford from completing their contract, and obtained an injunction accordingly for a short time, and gave the usual notice to extend it. That motion was never heard, for reasons connected with the pressure of business in the Court of the Vice-Chancellor, but the Defendants giving formal notice that they should not consider themselves bound by the injunction which had expired, the Plaintiffs applied for and obtained a further exparte injunction. That motion was never heard, for reasons connected with the pressure of business in the Court of the Vice-Chancellor, but the Defendants giving formal notice that they should not consider themselves bound by the injunction which had expired, the Plaintiffs applied for and obtained a further exparte injunction. This appears to us a somewhat novel proceeding, of which we must express our disapproval. A defendant who has had notice of motion for an injunction which he is willing and ready to meet, ought not to have that injunction issued against him ex parte. If from the other engagements of counsel or the pressure of other business on the Court and Plaintiff cannot bring on his motion, the inconvenience of this should fall on him, not on the Defendant, who is really harassed and punished as a wrongdoer without an opportunity of being heard.”The first observation I would make about that passage with the greatest respect to the members of that court, is that it is entirely obiter. And again with the greatest respect, I disagree with it. There may be many cases which, to take an example, cannot be heard by the court through no fault of the plaintiff and through no fault of the defendant; but, if on a prima facie view of the case the judge comes to the conclusion that irreparable damage may be done to the plaintiff by not preventing the continuance of the alleged nuisance or whatever other wrongdoing it may be by the defendant, plainly, in my view, the judge has jurisdiction to grant an ex parte injunction in such circumstances. I have never heard the suggestion before that it cannot be done; and I am quite certain that in my own recollection as a puisne judge, both in the Divorce Division and in the Queen’s judge, both in the Divorce Division and in the Queen’s Bench Division, I have made such orders, and I have never heard it suggested that course should not be adopted. So the first point that counsel for the first three defendants takes i.e., that there was no jurisdiction in the judge to make the order that he did in my view fails. So the first point that counsel for the first three defendants takes i.e., that there was no jurisdiction in the judge to make the order that he did in my view fails. The second point is that it is fundamental to any ex parte application for an injunction that the party applying for it should show the utmost good faith in making the application, and that the doctrine of uberrimae fides in effect applies to it. There is no doubt that is so. We were referred to two authorities in support of it, which clearly establish that proposition: Dalglish v Jarvie where the proposition is clearly stated by Roife B, and that passage is adopted and followed by a much more up-to-date case, R v Kensington Income Tax Courts, ex parte Princess de Polignac. But, I am by no means satisfied that there has here been any breach of that duty on the part of the plaintiffs. It is suggested that they ought to have called the attention of the judge to the fact that, as is alleged by the defendants, there was, by a letter of 18th November 1969 and an interview of 24th November, an agreement in effect to compromise this unfortunate situation, by means of arrangements that the defendants would pay for the soundproofing of the relevant rooms in the school. It is also said that the defendants having denied the user of this track on some of the dates which are alleged by the plaintiffs, the plaintiffs ought to have called the attention of the judge to the denial; and that, in default of so doing’ again they forfeited their right to have this ex parte injunction over Friday.” 19. The contours defined in these judgments would go to show that grant of ex-parte order of temporary injunction order or its refusal thereof has to be take by the Court at the time when violation of a right is alleged by the plaintiff and same has been denied by the defendants or based on such material which is available on record which may go to show that there has been such denial or when both the parties assert their respective rights and there remains certain amount of uncertainty. Exercise of discretionary power by the Court to grant an ex-parte order of temporary injunction is unfettered and to prevent the injustice being caused to either of the parties, Court is empowered to exercise its discretionary power. 20. The substantive section found in CPC with regard to grant of injunction is traceable to Section 94(c) which reads as under: “94. Supplemental proceedings – In order to prevent the ends of justice from being defeated the Court may, if it is so prescribed (a) x x x (b) x x x (c) grant a temporary injunction and in case of disobedience commit the person guilty thereof to the civil prison and order that his property be attached and sold; (d) x x x (e) x x x” 21. The procedural provision can be traced to Order XXXIX of the First Schedule of the CPC. Rule 1 enables the Courts to grant tan order of temporary injunction to restrain such act or make such order as enumerated in Rule (1) of Order XXXIX. Rule (2) of Order XXXIX enables the Court to grant an injunction to restrain repetition or continuance of its breach including the terms on which such order can be made as also the duration of injunction to be in force. Under Rule (3) of Order XXXIX, the Courts are required to direct notice to the opposite party before granting any injunction and proviso thereunder enables the Courts to grant an ex-parte ad-interim order of temporary injunction also. Order XXXIX Rule (3) reads as under:- “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. Order XXXIX Rule (3) reads as under:- “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] 22. Proviso to Rule (3) was not in existence prior to 1976 and has come into fore by Act 104 of 1976 w.e.f. 1/2/1977. Rule 3-A of Order XXXIX mandates when an exparte order of temporary injunction has been granted without notice to the opposite party, it would be incumbent upon such Court to dispose of the application within 30 days thereof and in the event of Court not passing an order on such application. It has to assign reasons for its inability to dispose of such application. Rule (4) of Order XXXIX enables a Court to discharge vary or set aside an order of injunction that may be issued by it. The combined reading of proviso to Order XXXIX, Rule (3), Rule 3-A and Rule 4, would clearly go to show that it is a discretionary power granted to a Court to be exercised to avoid or to prevent the mischief that would be caused by not granting such preventive relief. Relief by way of temporary injunction particularly ad-interim ex-parte injunction is granted to mitigate the risk of injury that the plaintiff may suffer during the period of uncertainty as pleaded in the plaint is resolved. Relief by way of temporary injunction particularly ad-interim ex-parte injunction is granted to mitigate the risk of injury that the plaintiff may suffer during the period of uncertainty as pleaded in the plaint is resolved. The object of granting of ex-parte ad-interim injunction is to protect the right of the plaintiff or present breach of violation of his rights if any for which the plaintiff cannot be suitably compensated thereof. The need of such protection has to be weighed against the corresponding claim of the defendant or the probable claim the defendant may raise and thereby, the interest of the defendant would also be protected. Thus, Court must weigh one need against another. It is this precise exercise that trial Court ought to carryout while exercising its discretionary power for granting of ex-parte ad-interim order. 23. At this juncture, it would be of necessary to extract Section 135 of the Trade Marks Act, which reads as under:- “135. Relief in suits for infringement or for passing off.- (1) The relief which a court may grant in any suit for infringement or for passing off referred to in section 134 includes 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, together with or without any order for the delivery up of the infringing labels and marks for destruction or erasure. (2) The order or injunction under sub-section (1) may include an ex parte injunction or any interlocutory order for any of the following matters, namely:- (b) preserving of infringing goods, documents or other evidence which are related to the subject-matter of the suits; (c) restraining the defendant from disposing of or dealing with his assets in a manner which may adversely affect plaintiff’s ability to recover damages, costs or other pecuniary remedies which may be finally awarded to the plaintiff. (3) x x x” Sub-section (1) and Sub-section (2) of Section 135 of the Trade Marks Act, 1999, are the enabling provision which empowers the Court to grant the relief or temporary injunction or exparte injunction as enumerated therein. It is in this background, when the Court considering the prayer for grant of ex-parte ad-interim injunction will have to examine the facts of each case either to grant such a prayer or refuse to grant an ex-parte order. It is in this background, when the Court considering the prayer for grant of ex-parte ad-interim injunction will have to examine the facts of each case either to grant such a prayer or refuse to grant an ex-parte order. There should be a purposeful and meaningful reading of the plaint averments and scrutiny of the documents filed in support thereof while considering such prayer. As otherwise, the provision of Section 135 would become nugatory and it would not serve the purpose for which it is enacted. 24. The trial Court has erroneously proceeded and has not even considered the prayer of the plaintiff for grant of ex-parte ad-interim injunction or the prayer made in I.As.1 to 3 by relying upon Bajaj Auto case referred to supra in which judgment the issue regarding exercise of discretionary power by the Courts was not at all under consideration and as such, I am of the considered view that the trial Court committed a serious error in not considering the prayer of the plaintiff. 25. At this juncture, it would be of benefit to note the judgment of the Supreme Court of Judicature and Court of Appeal in the case of Anton Piller K.G. v. Manufacturing Processes Limited, Bernard Preston Wallace and Alfred Henry Stephen Banker, reported in (1975) EWCA Civ. 12 whereunder, claim for grant of ad-interim ex-parte injunction and the requisite conditions for passing such an order was order consideration and it has been held as under:-“So, on Wednesday 26th November, 1975, Pillers’ Solicitor prepared a draft Writ of Summons and, with an affidavit, they went before Mr.Justice Brightman and asked, first, for an interim injunction to restrain infringement, etc., and, secondly, for an Order that they might he permitted to enter the premises of the English company so as to inspect the documents of the Plaintiff’s and remove them, or copies of them Mr. Justice Brightman granted an interim injunction, but refused to order inspection or removal of documents. The householder can shut the door in his face and say “Get out”. That was established in the leading case of Entick v. Carrington, in (1765)2 Wilson. None of us would wish to whittle down that principle in the slightest. Accepting such to be the case, the question is in what circumstances ought such an Order to be made. The householder can shut the door in his face and say “Get out”. That was established in the leading case of Entick v. Carrington, in (1765)2 Wilson. None of us would wish to whittle down that principle in the slightest. Accepting such to be the case, the question is in what circumstances ought such an Order to be made. If the defendant is given notice beforehand and is able to argue the pros and cons, it is warranted by that case in the House of Lords and by Order 29, Rule 2(1) and (5), of the Rules of the Supreme Court. But it is a far stronger thing to make such an Order ex parte without giving him notice. This is not covered by the Rules of Court and must be based on the inherent jurisdiction of the Court. There are one or two old precedents which give some colour for it, Hennessey v. Rohmann, 1877 Weekly Notes, and Morris v. Howell, (1888) 22 L.R.Ir., an Irish case in 1888. But they do not go very far. So it falls to us to consider it on principle. It seems to me that such an Order can be made by a Judge ex parte, but it should only be made where it is essential that the plaintiff should have inspection so that justice can be done between the parties, and when, if the defendant were forewarned, there is a grave danger that vital evidence will be destroyed, the papers will be burnt or lost or hidden, or taken beyond the jurisdiction, and so the ends of justice be defeated; and when the inspection would do no real harm to the defendant or his case. There are three essential pre-conditions for the making of such an Order, in my judgment, First, there must be an extremely strong prima facie case. Secondly, the damage, potential or actual, must be very serious for the applicant. Thirdly, there must be clear evidence that the defendants have in their possession incriminating documents or things, and that thee is a real possibility that they may destroy such material before any application inter partes can be made.” 26. Secondly, the damage, potential or actual, must be very serious for the applicant. Thirdly, there must be clear evidence that the defendants have in their possession incriminating documents or things, and that thee is a real possibility that they may destroy such material before any application inter partes can be made.” 26. Infact, Hon’ble Supreme Court in case of Morgan Stanley Mutual Fund v. Kartick Das reported in [(1994) Vol.81 Company Cases 318], at Page 336 has been held as under:- “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 the plaintiff;(b) Whether the refusal of ex parte injunction would involve greatest injustice than the grant of it would involved;(c) the court will also consider the time at which the plaintiff first had notice of the act complained of 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 some time 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; and (g) general principles like prima facie case, balance of convenience and irreparable loss would also be considered by the court.” In United Commercial Bank v. Bank of India [1981] 2 SCC 766; [1982] 52 Comp Cas 186, 210 this court observed x x x x x Even if there was a serious question to be tried, the High Court had to consider the balance of convenience. We have no doubt that there is no reason to prevent the appellant from recalling the amount of Rs.85,84,456. The fact remains that the payment of Rs.36,52,960/- against the first lot of 20 documents made by the appellant to the Bank of India was a payment under reserve while that of Rs.49,31,496/- was also made under reserve as well as against the letter of guarantee or indemnity executed by it (the Bank of India). The fact remains that the payment of Rs.36,52,960/- against the first lot of 20 documents made by the appellant to the Bank of India was a payment under reserve while that of Rs.49,31,496/- was also made under reserve as well as against the letter of guarantee or indemnity executed by it (the Bank of India). A payment ‘under reserve’ is understood in banking transactions to mean that the recipient of money may not deem it as his own but must be prepared to return it on demand. The balance of convenience clearly lies in allowing the normal banking transactions to go forward. Furthermore, the plaintiffs have failed to establish that they would be put to an irreparable loss unless an interim injunction was granted.” 27. On a combined reading of Section 94, Order 39 Rules (1), (2), (3), 3-A and (4) as also Section 135 of Trade Marks Act, 1999, I am of the considered view that trial Court is empowered to consider the prayer for grant of an ex-parte order of temporary injunction as well as temporary injunction. However, it would be in its realm or domain to examine facts of each case either to grant or refuse an order of ex-parte ad-interim injunction after meaningful and purposeful reading of the plaint and affidavits/documents filed in support of such prayers. However, in this process, the direction given by the Hon’ble Supreme Court in Bajaj Auto case referred to supra cannot be allowed to be diluted in whatsoever manner and it would be needless to state that on the commencement of the hearing of the suit as contemplated under Order 17, the direction as issued by the Hon’ble Supreme Court in Bajaj Auto case is required to be followed punctually and faithfully in letter and spirit to achieve the end result as observed by their lordships. It would also be necessary to observe that on obtaining an order of temporary injunction or otherwise, plaintiff cannot be allowed to dodge or evade from tendering evidence in a suit and concluding the trial as directed by the Hon’ble Supreme Court in Bajaj Auto case referred to supra is a must. 28. It would also be necessary to observe that on obtaining an order of temporary injunction or otherwise, plaintiff cannot be allowed to dodge or evade from tendering evidence in a suit and concluding the trial as directed by the Hon’ble Supreme Court in Bajaj Auto case referred to supra is a must. 28. In view of the discussions made herein above, I am of the considered view that order of the trial Court to the extent of refusing to consider the prayer of the plaintiff for grant of ex-parte order of temporary injunction cannot be sustained. 29. It is also made clear that the trial Court would be at liberty to consider I.As.I to III on its merits either to grant an ex-parte order of temporary injunction or refuse to grant such a prayer and this order or observation made herein above shall not be construed by the trial Court as having been directed to grant an order of temporary injunction. Hence, I pass the following:- ORDER (1) The above writ petitions are partly allowed by holding that the order of the trial Court dated 1/10/2011 Annexure ‘AB’ to the extent of refusing to consider the prayer of grant of ex-parte ad-interim injunction is erroneous and are hereby quashed. (2) The trial Court shall consider the prayer of the plaintiffs on I.As.I to III independently, as observed herein above. (3) The petitioner-plaintiff is at liberty to move the trial Court for advancement of the above case with a prayer to consider the applications I.As.I to III. (4) The trial Court as observed herein above, would be at liberty to consider and pass orders on merits of the case and in accordance withy law. However, it is also made clear that in the event of defendants have appeared in the suit pursuant to summons/notices issued, trial court shall afford the defendants an opportunity and dispose of the applications expeditiously. (5) No order as to costs.