Appeals Against Ex-Parte Orders Should Not Be Encouraged, Defendant Can Always Approach Single Judge: Bombay High Court

The division bench of Justice G. S. Patel and Justice Gauri Godse was dealing with a Commercial Appeal against a without notice (ex parte) ad interim time-limited order in a Commercial Intellectual Property suit.

The court said that the appeal court cannot reverse findings of the single Judge based on material that was never placed before the single Judge barring the most exceptional circumstances.

Appellants were the defendants in a suit for trademark infringement and passing off filed by the respondent. Single Judge bench of Justice R. I. Chagla had granted time limited ad interim injunction to the plaintiff/respondent. The bench had also granted liberty to defendants to apply for a variation in the order by giving 72 hours' notice to the plaintiff.

Advocate Alankar Kirpekar for the appellants said that the injunction could not have been granted without notice to them. Further, there is extensive suppression of material particulars in the plaint.

Kirpekar relied on Justice Patel's 2021 order in Rizwana Abdul Aziz Farooqi v. Limra Realty which held that in order to grant ad interim relief without notice to the opposite party, there was a need for fair disclosure of material particulars in the plaint.

The court noted that to pass an interlocutory order under Order 39 of the C.P.C., the general rule is that both sides must be heard. The burden is on the plaintiff who wants to obtain interim relief without notice to the defendant to deliver the plaint, the application for the order, and the documents relied on to the defendant immediately after the interlocutory order is made, it said

This is due to the principle that if a court is being asked to give an order without notice, the plaintiff must present to the court a fair picture so that a balanced order can be made, said the court.

The court said the aspect related to the duty of the court, when asked to pass and injunction without notice, is often overlooked. The court must be satisfied that there are adequate disclosures in the plaint to grant such an order, it said.

However the defendant can at a later stage say that the plaintiff's disclosures were inaccurate, insufficient, misleading, or false, the court added.

The court took note of the general practice that without notice orders in IP matters are always time-limited and the defendant has the liberty to urgently move to vacate or modify the order. However, the defendant has to usually give 72 hours notice to the plaintiff who sought the without notice order. Without notice orders have these inbuilt safeguards to facilitate the defendant to approach the single Judge himself or herself for setting aside the order, the court stated.

In this case, the defendant appealed against the without notice order accusing the plaintiff of suppression of facts. The defendant is essentially making an application similar to the application under Order 41 Rule 27 of the CPC asking the court to receive additional material directly, the court observed.

"What the defendant now says is that the without notice ad interim time-limited order must be vacated or set aside on material that was never placed before the Single Judge, and to which the single Judge had no opportunity to apply his or her mind. This is not a practice that should be encouraged. It is indeed to be thoroughly deprecated," the court said, adding the introduction of fresh material in an appeal should never be assumed to be readily allowable.

The court further said that it is always, and "we would say invariably", impermissible for an appeal court to reverse the order of a single Judge on material that was not before him or her, "barring the most exceptional circumstances contemplated by the CPC".

Another question before the court was whether the defendant has to file a substantive application under Order 39 Rule 4 of the CPC to have a without notice order set aside.

The first proviso to Order 39 Rule 4 contemplates a situation where there has been a without notice order.

The court opined that a substantive application by the defendant is not mandatory if the case falls under the first proviso. The defendant can show via an affidavit-in-reply why the without notice order should not be continued on the next date when the matter is listed. The defendants can file an application under Order 39 Rule 4 but it is not a requirement.

The court decided that there was no reason to interfere with the order as the appellants have the liberty to seek variation of the order after giving notice of 72 hours to the plaintiff.

Case no. – Commercial Appeal (L) No. 31992 of 2022

Case title – Kewal Ashokbhai Vasoya v. Saurabhakti Goods Pvt. Ltd.

Citation- 2022 LiveLaw (Bom) 405