Rajesh Batra. Petitioner v. M/S. Grandlay Electricals (India).S

R.C Lahoti, J.— The plaintiff-respondents have filed a suit for issuance of perpetual injunction and recovery of damages etc. complaining of infringement of trade mark and passing off. An application under order 39 rules 1 & 2 cpc seeking issuance of ad-interim injunction was also filed and an order ex-parte sought for. On 14.10.96, the learned Single Judge directed the plaint to be registered and summons to be issued to the defendant-appellants, returnable on 27th March, 1997.

2. On the same date the following order was also passed which is impugned in this appeal :—

“IA No.9254/96

Notice for 27.3.1997

Heard. In view of the award at page 68 with special reference to its Clauses 6 & 11 and the documents at pages 108 to 110, it would be appropriate to grant an ex-parte stay. In the meantime, the defendants, their servants, proprietors, partners, dealers, stockists, agents, shopkeepers are restrained from manufacturing, selling, offering for sale, advertising directly or indirectly dealing in wires/cables under the trade mark BATRA HENLAY Cables.”

3. This is an appeal under Clause (r) of Rule 1 of Order 43 of the CPC which contemplates an appeal against an order under Rule 1, Rule 2, Rule 2A, Rule 4 or Rule 10 of Order 39 of the CPC. The maintainability of this appeal is objected to by the learned counsel for the plaintiff-respondents submitting that in as much as the remedy of seeking discharge, variation or set aside of the order of injunction under Rule 4 of Order 39 of the CPC is available to the defendant- appellants, the present appeal does not lie. Even if it be maintainable, no fault can be found with the impugned order, in as much as the only material which would be taken into consideration by this Court would be the one made available by the plaintiff-respondents on the record of the civil Suit. The consideration of any new material brought on the record of the appeal for the first time would not be permissible for deciding the correctness, legality or propriety of the order under appeal in as much as the same was not before the learned Single Judge when he passed the impugned order, submitted the learned counsel for the plaintiff-respondents.

4. Let these two preliminary questions be examined and disposed of before we may embark upon the merits of the appeal.

5. There is ample authority available for the proposition that an order of injunction even if ex- parte, is an order made under Rule 1 or 2 of Order 39 of the CPC and therefore would be appealable under Clause (r) of Rule 1 of Order 43 of the CPC. Reference may be had to :—

(i) M/s. Astaral Traders v. M/s. Haji Mohammad Shaban Dar, AIR 1982 J&K 124 FB.

(ii) Zila Parishad, Budaun v. Brahma Rishi Sharma, AIR 1970 All 376 FB.

(iii) Patel Jasmat Sangaji Padalia v. Gujrat Electricity Board Baroda, AIR 1982 Gujrat 264 (DB).

(iv) Bipin Chandra v. M/s. Purshottam Bhai Dhoribhai & Co. AIR 1984 MP 110.

(v) E. Mangamma v. A. Muniswamy, AIR 1983 AP 128.

(vi) In Re.-Sankar Kumar Ghosh AIR 1983 Cal 250.

(vii) Ashok Tshering Lama v. Tshersingh Wangdi, AIR 1982 Sikkim 20.

(viii) Chhagganlal v. Niwasodas AIR 1963 MP 208.

(ix) SR Jusa v. Ganpat Dagdeo AIR 1976 Bom. 222.

6. In Zila Parishad Budaun's case (supra) the Full Bench of Allahabad High Court has held :—

“An ex parte order issuing temporary injunction under O.39 Rule 1 and 2, against the defendants is appealable under O.43 R.1(r). AIR 1951 All 558, Approved. 1960 All LJ 124, Overruled. Case law discussed. (pr.16)

The language and the object of R.1(r) of Order 43 and the scheme of Rules 1 to 4 of Order 39 show that an appeal also lies against the ex parte order of injunction. As soon as an interim injunction is issued and the party affected thereby is apprised of it, he has two remedies; (i) he can either get the ex parte injunction order discharged, varied or set aside under Rule 4 of Order 39 and if unsuccessful avail the right of appeal as provided for under Order 43, Rule 1(r); or (2) straightaway file an appeal under Order 43, Rule 1(r) against the injunction order passed under Rules 1 and 2 of Order 39, C.P.C It is not unusual to provide for alternative remedies.(pr.18)

Further, once the Court, after perusing the application and affidavit, comes to the conclusion that the case is a fit one in which temporary injunction should be issued ex parte the Court takes a final decision in the matter for the time being and the expression of this decision is a final order for the duration it is passed. Such an order is contemplated by Rules 1 and 2 of Order 39, C.P.C(pr.21)

7. In M/s. Ansal Trader's case (supra) the Full Bench of Jammu & Kashmir High Court has followed the Allahabad view on the question of maintainability of the appeal. However, two of the judges constituting the Full Bench have further observed :—

It would be in the fitness of things if as a matter of practice the appellate court refuses to entertain an appeal directed against an ad-interim injunction so long as the aggrieved party has not approached the trial court for its vacation.”

8. Having held an order of injunction ex parte to be appellable let us now determine the scope of such appeal.

8.1 The Full Bench of Allahabad High Court has held in Zila Parishad Budaun's case (supra) :—

“The appellant as a matter of right cannot rely on fresh evidence in appeal which was not before the trial Court until it is admitted, by the appellate Court under Order 41, Rule 27 CPC.”

8.2 In the case of Bipin Chandra & Anr. (supra) the High Court of Madhya Pradesh examined the impact of Rule 3 on the jurisdiction of the Court to grant ad interim injunction and observed :—

“In view of the object underlying Rule 3 and its proviso. I am of the opinion that the scope of an appeal/revision filed against the grant of ex parte temporary injunction without notice to the opposite party is very limited. The merits of the claim for grant of temporary injunction have not to be examined. Since the ex parte temporary injunction only aims at maintaining status quo for the time being or the forbearance from doing an act imminently prejudicial to the plaintiff who obtains the order and does not seriously affect the right of the parties : what may be seen for the review of that order is whether the Court had good reasons before it to proceed to grant an ex parte temporary injunction. If the reviewing authority finds that the party seeking the injunction places good and compelling reasons before the Court for maintaining the status quo or for a direction preventing performance of any prejudicial act, and that the trial Court has applied its mind to those facts and has recorded the reasons to grant an ex-parte injunction the reviewing authority may not interfere. This is particularly so because cl.(a) of the proviso to R.3 itself requires that the Court shall direct the party seeking ex parte temporary injunction to deliver to the opposite party or to sent to him by registered post a copy of the application for injunction along with affidavit filed in its support and a copy of plaint and copies of documents on which reliance is placed: and also because R.4 of O.39 enables the person affected by such grant of ex parte temporary injunction to appear before the Court itself and show cause against the application and get the order discharged or validated or set aside. When he so appears, the Court shall hear him at length and then may decide the application on merits.”

8.2.1 The appellant had placed before the appellate Court material which could have persuaded the Court forming an opinion on disentitlement of the plaintiff to an ad-interim injunction. The learned Judge has observed :—

“Learned counsel for the appellants placed before me certain facts which according to him would disentitle the respondents to an order of temporary injunction in their favour. It is not for me in this appeal to consider the merits and demerits of the application in the light of the facts alleged by the appellants. The appellants may well place all those facts and the supporting material before the trial Court and pray for discharge of the rule in terms of Rule 4 of Order 39.”

8.2.2 The learned Judge refused to interfere with the order of ex-parte injunction as in his opinion, it neither violated the terms of Rule 3 of the Order 39, nor the formation of opinion by the trial Court could be found fault with. The appeal was dismissed leaving it open to the defendant-appellant to approach the trial court for appropriate relief.

8.3 Chhagan Lal's case (supra) is yet another decision from the High Court of Madhya Pradesh where an appeal was filed against an ex-parte order of temporary injunction. Upholding the maintainability of the appeal the learned Judge observed :—

“But the appellate Court in such appeal will not be bound to apply its mind to all those matters which the original Court is bound to consider on cause shown by the party affected by ad- interim order. To do so would amount to holding proceedings pursuant to the reply to the show cause notice in the appellate Court.”

9. Looking to the trend of judicial opinion, we are of the opinion that :—

(i) an order of injunction whether ex-parte or bye- parte is appealable under Order 39 Rule 1 (r) of the CPC;

(ii) The scope of hearing in such an appeal is limited. Ordinarily the appellate Court would not take into consideration any new material. The hearing would be confined to finding out whether the original Court was justified or not in granting the ex-parte order of injunction on the material available before it.

(iii) If the appellate Court may concur with the view taken by the original Court then the appeal would be dismissed leaving it open to the appellant to contest the ex-parte order of injunction before the original Court. If the appellate Court may form an opinion that on the material available before original court, the grant of injunction ex-parte cannot be sustained then the appellate court would set aside the ex-parte order of injunction leaving it open to the parties to appear before original court and have a hearing bye-parte on the grant or otherwise of the order of injunction.

(iv) If the appellate Court forms an opinion that on the material available on record of the suit before the original court an injunction not in the form granted by the original court but in a different form could only have been granted ex parte then it may substitute its own order in place of the original order (under appeal) leaving it open to the opposite party to contest the issue as to grant of injunction by-parte before the original Court.

10. In the background of the law as stated herein above, we now proceed to examine the merits of the case at hand.

11. The suit filed by the plaintiff-respondents is a composite one complaining of infringement of trade mark as also of passing off. The plaintiff also alleges breach of the terms of the award dated 5.12.85 binding on the parties. The parties are real brothers and their family members. The family disputes were referred to arbitrator who give an award on 5.12.95, which was agreed to by the parties. The relevant terms thereof are extracted and reproduced hereunder :—

“6.Shri Chaman La1 Batra, Shri Girdhari Lal Batra and Shri Anil Kumar Batra shall under no circumstance use the brand name ‘GRANDLAY’ and/or its goodwill for any item connected with electricals and/or electronic items.”

“11. That Shri Chaman Lal Batra and Shri Anil Kumar Batra have been excluded from the dissolved firm M/s. Grandlay Electricals (India) and have relinquished all their rights and interest in the said firm in favour of Shri Krishan Lal Batra and Bihari Lal Batra. Shri Krishan Lal Batra and Shri Bihari Lal Batra have no objection to the outgoing partners Shri Chaman Lal Batra and Anil Kumar Batra to carry on the business of manufacturing of cables and wires. However, the right, title, interest, entitlements in Grandlay Electricals (India) Cinema situated at Community Centre, New Friends Colony, New Delhi which has come to the share of Shri Chaman Lal Batra and which has a separate identity is now remain with Shri Chaman Lal Batra and this firm M/s. Grandlay Electricals (India) Cinema, shall confine with its cinema business activities only.”

12. Yet another relevant fact set out in para 16 of the plaint is as under :—

“16. The plaintiffs therefore filed a suit being Suit No.1616/90 before this Hon'ble Court, in order to restrain the defendants from using the deceptively similar mark HENLAY and from using the registered trade mark GRANDLAY as a part of their trading style. This Hon'ble Court was thereafter pleased to grant an ex-parte injunction restraining the said parties from using the name of trading style or business name GRANDLAY by themselves or through their employees servants, agents or family members in respect of their business in electrical goods. The said interim injunction is still operating against the defendants and the issue regarding the user of the deceptively similar trade mark HENLAY is still being contested before this Hon'ble Court.”

13. Vide para 18, the relevant part of the grievance set out by the plaintiff is as under :—

“It has recently come to the knowledge of the plaintiffs that another firm was floated by the same family group in the name and style of Batra Henlay Cables. The names of the partners in the said firm are Mrs. Vidya batra w/o. Shri C.L Batra, Madhavi Batra, W/o. Sh. Brijesh Batra, Rajesh Batra s/o. Sh. C.L Batra.

They use the name of Grandlay on their one pretext or the other which is a contempt of interim order passed by this Hon'ble Court. The defendant's manager Mr. Pradeep Sharma who was the earlier employ of M/s. CLA Telelinks India Pvt. Ltd. is corresponding to the customers using the name of GRANDLAY as well as trade mark HENLAY cables of CLA Telelinks India Pvt. Ltd.”

14. The learned counsel for the defendant-appellants has made three submissions :—

(i) The case of the plaintiff-respondent to the extent to which it is based on the award dated 5.12.85, has been set out in the plaint by giving a twist to the facts. Vide sub-para (b) and (c) of para 11 of the plaint it has been averred :—

b) The defendants shall under no circumstances, use the trade name GRANDLAY or the TRADE MARK CABLES and/or their goodwill for any item connected with electrical and/or electronic items.

c) The defendants can carry on the business of wires and cables but shall not carry it on from Grandlay Electricals India Cinema situated at New Friends Colony, New Delhi.

Support for such a wide plea is not borne out from the award.

(ii) In the suit instituted earlier the plaintiffs were not allowed any interim relief restraining the defendants from using the trade mark HENLAY and that being so there is no justification for granting an ex- parte order of injunction restraining use of the trade mark Batra Henlay Cables.

(iii) A case of infringement of trade mark and/or of passing off by the defendants is not even prima facie made out. There is no resemblance - visual, phonetical or in the basic idea, between the two trade marks of the parties. The defendants have never attempted at passing off their goods as that of the plaintiffs.

15. The learned counsel for the plaintiff-respondents has countered all the submissions made by the learned counsel for the defendant-appellants. He has further pointed out that Grandlay Cinema building has fallen to the share of the defendants and they are operating therefrom. At the top of the building the word GRANDLAY has been built up and projected in bold letters so as to be visible from far off. Just below the said GRANDLAY the defendants have put up a sign board reading Batra Henlay Cables. Two photographs were made available for the perusal of the Court by the learned counsel for the respondents visually demonstrating the plea raised by him. He also brought to our notice an envelop and a Diwali Card showing how the defendants were using their trade mark Batra HENLAY in close proximity with the word GRANDLAY in one or other form or style of presentation and thereby attempting to pass off their cables as that of the plaintiffs' GRANDLAY.

16. A number of authorities were cited by both the parties in support of their respective submissions on - whether the word HENLAY bears such similarity with the word GRANDLAY so as to deceive unwary customers. Suffice it to observe that the present appeal is not in an appropriate forum where the merits of all these respective contentions can be examined. We have also been persuaded not to enter into testing the validity of the rival contentions so advanced in as much as in view of ultimate conclusion to which we have arrived at, any finding recorded by us may prejudice the hearing before the original Court. What has impressed us the most is the manner in which the averments have been made in para 18 of the plaint. Casually the plaintiffs make an averment of the alleged infringement/passing off having “recently come to the knowledge of the plaintiffs”. The parties are close relations. Both are in Delhi. It is difficult to believe that any infringement of plaintiffs' trade mark or passing off by the defendants would not have immediately come to the knowledge of the plaintiffs no sooner the same had taken place. In such a case we expect the plaintiffs to have made a more specific averment setting out the exact date by which and the manner in which the plaintiffs became knowledgeable leading to the filing of the suit. Without expressing any positive opinion on any of the individual contentions advanced by the learned counsel for either parties we are of the opinion that on the material and documents filed by the plaintiff-respondents it was not a case for the grant of an ex-parte injunction in the terms in which it was sought for and has been granted by the learned Single Judge. In our opinion an ex-parte injunction limited in its scope should have been granted and notice of the application should only have been issued to the defendant-appellants calling upon them to show cause against the reliefs sought for by the plaintiff-respondents in their application under Order 39 Rule 1 & 2 CPC.

17. For the foregoing reasons, the appeal is partly allowed. The impugned order granting temporary injunction ex-parte is set aside. Instead an ex-parte ad-interim injunction would issue against the defendant-appellants restraining them from using the word GRANDLAY in any manner so as to associate the same with Batra HENLAY or which user may have the effect of giving an impression to the customers that Batra HENLAY has anything to do with GRANDLAY. Subject to the ex-parte ad-interim injunction having been allowed in these terms the application under order 39 rules 1 & 2 of the cpc filed by the plaintiff-respondents shall be deemed to be pending, to be disposed of after by-parte hearing.

18. Before parting, by way of abundant caution we reiterate that we have not recorded any findings on merits on the rights and contentions of either party subjudice before the learned Single Judge. We have only opined that on the material made available by the plaintiff-respondents, on the record of the Suit an ex- parte ad-interim injunction of a limited scope as indicated herein-above was only deserved by them.

19. The appeal stands disposed of in the terms indicated hereinabove and without any order as to the costs.