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2013 DIGILAW 1917 (ALL)

Madan Lal v. Girraj Food Products

2013-07-22

SANJAY MISRA

body2013
JUDGMENT Sanjay Misra, J. Heard Sri R.N. Kesari learned counsel for the revisionists and? Sri Anil Kumar Shukla for the plaintiff opposite parties. 2. This revision under Section 115 CPC is directed against the order dated 16.05.2013 passed by the Additional District Judge IV, Hathras in Original Suit no. 01 of 2013 (Sri Girraj Food Products Hathras (U.P.) Vs Madan Lal & Others). 3. Learned counsel for the defendant revisionists has submitted that they filed an application before the Trial Court under Section 89 CPC praying that the dispute between the parties be sent for mediation/conciliation. On the said application the plaintiff respondent did not agree. However the court sent the parties to the Conciliation Centre to attempt settlement amongst them. He states that on the said application of the defendant revisionist the Trial Court by the impugned order has illegally restrained the defendant revisionist from using the brand name of the plaintiff respondent. 4. According to learned counsel for the revisionists such a restraint order could not have been passed by the Trial Court when it was sending the matter for conciliation and mediation since the application of the plaintiff respondent for grant of temporary injunction is still pending and therefore the impugned order being illegal requires to be set aside. 5. Learned counsel for the plaintiff respondent has contested the submission and has submitted that the defendant revisionists was illegally using the name of the plaintiff respondents and therefore when the matter was being delayed on the application of the defendant revisionists the plaintiff respondents had requested the court not to permit the defendant revisionists to use the brand name of the plaintiff respondent's product during the pendency of such mediation proceedings. He refers to the impugned order to state that the court below has clearly recorded that such restraint will not in any manner effect the merits of the claim made by the parties in the mediation. 6. Having considered the submission of learned counsel for the parties and perused the impugned order it appears that on an application made by the defendant revisionists under Section 89 CPC the matter was referred for conciliation to the Mediation & Reconciliation Centre and till then the restraint order was passed by the Trial Court against the defendant revisionists. 7. 6. Having considered the submission of learned counsel for the parties and perused the impugned order it appears that on an application made by the defendant revisionists under Section 89 CPC the matter was referred for conciliation to the Mediation & Reconciliation Centre and till then the restraint order was passed by the Trial Court against the defendant revisionists. 7. Learned counsel informs that no conciliation or settlement has taken place between the parties and therefore now the matter has to be heard on merits of the suit and the temporary injunction application pending in the suit. 8. In view of the above submission of learned counsel for the defendant revisionists and the plaintiff respondents before this court there is no reason to disbelieve the submission that settlement through the Mediation & Reconciliation Centre between the parties has failed. As such the case of the parties is now required to be decided on merits. 9. The restraint order was passed by the court below not on its merits but only for the reason that the parties are going for settlement to the Mediation & Reconciliation Centre and as an interim arrangement it was so directed by the impugned order. Therefore when there is no settlement amongst the parties before the Mediation & Reconciliation Centre any interim order to be granted in favour of the plaintiff or against the defendant has to be passed only on merits by the court below. Therefore when it is the case of the parties that conciliation has failed and there is no settlement the plaintiff is entitled to press his application for temporary injunction, if any, pending before the Trial Court. The restraint order under the impugned order dated 16.05.2013 cannot be permitted to continue since the parties have not settled the matter amongst themselves and the said order has not been passed after considering merits of the claim of the parties. 10. In view of the aforesaid circumstances this revision is allowed. The order dated 16.05.2013 is set aside. The parties are at liberty to pursue their case before the court below including on the question of grant or refusal of temporary injunction. 11. No order is passed as to costs.