JUDGMENT : A piquant situation has arisen at the time of extending ad interim order passed on 12th May, 2016 by which the respondent was restrained from selling and/or offering for sale or marketing tea in the packet the labels of which containing ‘Nowalty’ being similar to or a colourable imitation of the petitioner’s logo or product ‘Lipton’ or from passing off or committing to pass off causing or enabling or assigning to others pass off the products, not of the petitioner’s manufacture and the products containing labels, style, get up and colour scheme of the petitioner’s trade mark or any reproduction or colour imitation thereof. An argument was advanced from the petitioner’s side that the respondent is marketing and selling its product through the mark ‘Nowelty’ on the packets in which the product is sold, which is similar and identical to the petitioner’s label in trade design, graphics and colour combination. It was further argued before the Court that the word ‘Lipton’ is a registered trade mark written in a distinct artistic font in unique shape. What was argued on that day was that the respondent has not only infringed the trade mark but has also passed off its product in such get up and style which is deceptively similar to the trade design and get up of the petitioner’s product. The relevant paragraph from the plaint was placed before the Court in convincingly manner that it is a case of an infringement of a trade mark and in view of Section 134 of the Trade Marks Act, 1999 the proceeding can be initiated before this Court as the plaintiffs are carrying on the business within the territorial jurisdiction thereof. 2. The respondent appeared after service of the notice as well as the injunction application and is represented by Mr.Ranjan Bachawat, the senior advocate who vehemently opposes the prayer of the petitioner for extension of the ad interim order. Mr.Bachawat is very much vocal in his submission that the suit for infringement of the Trade Mark is not maintainable before this Court in view of Sections 52 and 53 of the said Act as the registration of the mark ‘Lipton’ stands in the name of Unilever PLC, a company registered under the laws of England. Mr.Bachawat is very much vocal in his submission that the suit for infringement of the Trade Mark is not maintainable before this Court in view of Sections 52 and 53 of the said Act as the registration of the mark ‘Lipton’ stands in the name of Unilever PLC, a company registered under the laws of England. According to him, there is no document annexed to this application evincing that the said trade mark is either assigned or a licence has been given to use the said trade mark by the petitioner. Mr.Bachawat vehemently submits that there has been a gross suppression of material facts and the attention of the Court was not drawn to the relevant paragraphs of the petition from where it would discern that the entire case is founded on an infringement of a trade mark and passing off. Mr.Bachawat, learned advocate for the respondent, invited the attention of the Court to several paragraphs of the petition where the petitioner has categorically stated that having the licence of the registered trade mark ‘Lipton’ and infringes the trade dress overall get up of the Lipton Tea. He thus submits that there is no fetter on the part of the Court in refusing or extending the ad interim order on the returnable date before inviting the respondent to disclose facts in the form of affidavit if the materials produced by the respondent are sufficient enough to demolish the case made out in the plaint as well as injunction application. Mr.Bachawat refers the definition of a trade mark assigned under section 2(zb) of the Act to mean a mark capable of being represented graphically and which is capable to distinguish the goods or service of a person from those of others and may include shape of goods, packging and combination of colours. He further draws the attention of the Court to a definition of the registered trade mark under Section 2 (w) of the Act to mean the trade mark which is actually on the register and remaining in force. On the case of passing off, Mr.Bachawat would contend that admittedly the respondent is carrying on the business outside the jurisdiction of the Court which would be apparent and evident from the cause title as it stands now and the plaint lacks pleading on cause of action for passing off having arisen within the jurisdiction of this Court. On the case of passing off, Mr.Bachawat would contend that admittedly the respondent is carrying on the business outside the jurisdiction of the Court which would be apparent and evident from the cause title as it stands now and the plaint lacks pleading on cause of action for passing off having arisen within the jurisdiction of this Court. He further invited the attention of this Court to the report of the Special Officer appointed by this Court at the time of passing ad interim order of injunction that the petitioner exploited his recourses in securing the police assistance and help rendered to the Special Officer in carrying out the directions passed therein when the order does not indicate such police help. 3. The moment those arguments are advanced by the respondent, the learned advocate for the petitioner takes a rebound and drifted his stand in contending that the instant suit is filed for infringement of Copyright and not on the infringement of trade mark and passing off action. According to the petitioner section 62 of the Copyright Act 1957, confers the jurisdiction upon this Court and therefore, the suit based thereupon is maintainable. The learned advocate for the petitioner submits that by deed of assignment of copyright the artist have assigned the artistic work in favour of the petitioner and, thereafter the petitioner as a proprietor of such Copyright can initiate an action the moment the infringement is realised. Learned advocate for the petitioner now contends that the cause of action for infringement of a copyright is averred and pleaded and, therefore, the suit should not be construed to have been founded upon the infringement of trade mark and passing off. 4. At the very outset, this Court must record from its memory what happened on the day when the ad interim order was passed by this Court. At the time of moving, it was argued before this Court and several paragraphs were placed in support of the contention that the respondent is guilty of infringing the trademark and, therefore, the order is required to be passed. Ordinarily, the plaint is not tagged when an application is moved as ‘new motion’ and, therefore, the court has to rely upon the copy of the plaint produced by the party. Ordinarily, the plaint is not tagged when an application is moved as ‘new motion’ and, therefore, the court has to rely upon the copy of the plaint produced by the party. It is not possible for the Court to ascertain in absence of the plaint whether any leave under Clause 12 of the Letters Patent was sought or the leave under Clause 14 has been granted by the Court. A glimpse of Section 134 of the Trademarks Act postulates that a suit for infringement of a registered trademark or relating to any right in a registered trademark may be instituted in the original side of this High Court if at the time of institution, the plaintiff/petitioner or any one of them actually and voluntarily resides or carries on business or personally works for gain. A meticulous reading of the plaint, more particularly paragraph thereof, would reveal that the petitioner has categorically stated that he has a licence of the registered trademark “Lipton” and posses rights in trade dress and overall get up of Lipton itself. The aforesaid expression shall also be found in paragraph 10 of the instant application and it would further appear from paragraph 16 where the petitioner has stated that it is more vigilant in safeguarding and protecting their rights in their trademark Lipton and have initiated needful legal action against third parties whenever an attempt to misappropriate or misuse the said mark occurs. In paragraph 17 to 19, the necessary averments relating to the infringement of trademark and passing off are appearing. The substantive reliefs claimed in the plaint is all based upon the infringement of trademark and passing off except one of such prayer where the petitioner also claimed a decree for permanent injunction against the respondent from infringing the copyright. There is no difficulty in combining several cause of actions in one suit in the original side of the High Court provided a leave under Clause 14 of the Letters Patent is first obtained. In course of the hearing, the plaint was requisitioned from the department and it appears that neither leave under Clause 12 of the Letters Patent nor under Clause 14 is sought or granted. The plaint was presented before the Master who mechanically made the endorsement that it is presented and admitted. In course of the hearing, the plaint was requisitioned from the department and it appears that neither leave under Clause 12 of the Letters Patent nor under Clause 14 is sought or granted. The plaint was presented before the Master who mechanically made the endorsement that it is presented and admitted. Paragraph 29 which contains the requisite averments relating to cause of action, categorically and expressly contains the statement that this Court has jurisdiction by reasons of the provisions contained in Trademarks Act, 1999. Apart from a solitary prayer in the host of the prayers, this Court does not find any averments pertaining to the jurisdiction of this Court under the provisions of the Copyright Act. 5. There is no hesitation in my mind that the plaint as well as the injunction application lacks material documents relating to an assignment of the trademark in favour of the petitioner or the licence having granted to permit the user of such trademark by the owner of the registered trademark. The trademark “Lipton” is evidently owned by Unilever PLC under the laws of England. The Court was mislead on the date of moving an injunction application and securing the ad interim order of injunction. The moment the respondent brought to the notice of this Court the provisions of Sections 52 and 53 of the Trademark Act in maintaining an action before this Court on infringement of trademark and passing off, a sudden drift is taken by the learned Advocate for the petitioner in confining his argument on infringement of copyright. I must record that the Court should have been more vigilant, circumspect and cautious in passing an ad interim order and not solely on the arguments advanced at the bar. An Advocate is a responsible officer of the Court and its primary duty is to assist the Court in properly prepared manner. He has to discharge his duty with immense responsibility and each of his action has to be sensible and it is accepted to have a higher standard of conduct. He renders assistant to the Court and should have the sense of ethicality and noblity of the legal profession in his bones. An Advocate should to dignified in his dealing to the Court, to his fellow lawyers and the litigants and his integrity should have been in abundance and avoidance must be shown to anything that erodes his credibility. He renders assistant to the Court and should have the sense of ethicality and noblity of the legal profession in his bones. An Advocate should to dignified in his dealing to the Court, to his fellow lawyers and the litigants and his integrity should have been in abundance and avoidance must be shown to anything that erodes his credibility. An Advocate has an equally important duty as that of a Judge and should be diligent in his conduct and should confirm to the requirements of law by which an Advocate plays a vital role in the preservation of society and justice system. This Court must record his appreciation to Mr. Bachawat, who has surfaced the facts before the Court at the time of extending the ad interim order of injunction. This Court does not find any impediment in refusing to extend the ad interim order of injunction made ex parte on presentation of the documents by the respondents detracting and demolishing the petitioner’s case. This Court does not see any justification in mechanically extending the ad interim order and inviting the respondents to file affidavit disclosing all material documents if such documents, on the face of it, destroys the petitioner’s case. The support can be lend to the observations of the Co-ordinate Bench in case of V.K. Udyog vs. Owners and Parties interested in the vessel M.V. Eugenie reported in 2010(3)CHN 384 wherein it is held:- “22. An ad interim order in interlocutory proceedings does not necessarily bind the Court or the parties at the later stage of the proceedings. An ad interim order is usually made on the basis of the petitioner’s version of things which is supported by an affidavit and the documents relied upon in the petition. If the ad interim order is made ex parte, the respondents are permitted to present their version or documents to detract from the petitioner’s case, on the returnable date. The respondents are heard on the returnable date without an affidavit being called for from them. There is no embargo, however, on the respondents carrying an affidavit on the returnable date, limited to any aspect or dealing with the entirety of the matter. The respondents are heard on the returnable date without an affidavit being called for from them. There is no embargo, however, on the respondents carrying an affidavit on the returnable date, limited to any aspect or dealing with the entirety of the matter. If an assessment is made on the returnable date upon hearing the parties and taking into consideration the documents relied upon by them, at the final hearing of the interlocutory proceedings the matter may be consider in greater detail on the strength of the affidavits filed by the respondents and further documents produced. If no further documents are produced and the respondents’ affidavit version does not detract from the contents of the petition, there would be little occasion to revisit the decision rendered at the ad interim stage. 23. Interlocutory orders are, almost invariably, not inflexible. But they may only be varied upon subsequent events being brought on record or it being demonstrated that factors which ought to have been taken into consideration had not been considered earlier. It would be easier to seek the discharge of an ad interim order by urging that notwithstanding there being no additional document produced, other factors not taken into consideration at the ad interim stage ought to be considered at the final stage of the relevant interlocutory matter. It would be slightly more difficult to dislodge an order disposing of an interlocutory matter except by citing subsequent events of documents or matters that had not earlier been placed before Court despite due diligence. The principle is not entirely rooted to the doctrine of res judicata, but it is in recognition of the more fundamental principle that the same matters may not be agitated over and over again at the interlocutory stage.” 6. This Court, therefore, declines to extend the Advocate Appeared : interim order of injunction. 7. Before concluding, it is pertinent to record that the petitioner has misused and misutilized its resources in procurement of the police help to render assistance to the special officer appointed by this Court in carrying out the directions passed on 12th May, 2016. In the said order this Court never permitted the special officer to take assistance and help of the police authorities in carrying out the duties entrusted upon her. In the said order this Court never permitted the special officer to take assistance and help of the police authorities in carrying out the duties entrusted upon her. The report submitted by the special officer clearly depicts that she was assisted by the police officer which she ought to have protested at the time of inventory. 8. A recent trend has developed in appointing the junior members of the Bar who are still at the nebulous stage of their practice and is not in a position to understand the implication of the order and extraneous steps being taken at the request and behest of seasoned lawyer. The Special Officer/Receiver is an officer of the Court and discharges onerous duty in bringing the real state of affairs without any bias or inclination or bending in favour of any of the litigant. The Special Officer/Receiver ought not to have allowed the Police authorities to render any assistance to her. This Court believes that from the instant incident the Special Officer shall rectify herself in future. 9. As indicated above, the ad interim order was obtained by misleading the Court and causes immense sufferance to the respondent. Though there is no means to measure such sufferance, but at least the conscience of the Court would be satisfied by imposing costs which is assessed at Rs.2 lakh to be paid by the petitioner to the respondent. The respondent is permitted to file affidavit-in-opposition within three weeks from date; reply thereto, if any, shall be filed within a week thereafter. 10. The application shall appear as ‘Adjourned Motion’ after four weeks in the supplementary list.