'Once Appeared For A Party"- Calcutta HC Judge Recalls Her Order Even After No Objection By Both Parties, Says "It Is The Best And Only Course Available".

A single Bench of Justice Moushumi Bhattacharya recalled the order passed by her even after assurance by parties that they had no objection to the judgment being delivered by the Court. She found that releasing the matter was the best and only course of action since she had appeared for one party in relation to the same trademark on which the the party claimed exclusivity in present proceedings.

"An undertaking given by a litigant to a Court with any form of assurance may be construed in a totally different light at a subsequent stage of the proceedings depending on the twists and turns of the litigation itself. It is also important to bear in mind that a matter should be released by a Court on the call of conscience of the Judge who is to decide and not on any assurance of the parties before the Court" - Justice Moushumi Bhattacharya observed.

According to Justice Bhattacharya, preserving the purity of the process of dissemination of justice is a collective responsibility which rests both on the Court and counsels, advocates-on-record and instructing attorneys who act as officers of the Court on behalf of the parties.

Justice Bhattacharya observed that a litigant receiving a judgment must be convinced, for all times to come, that the judgment was delivered solely on the applicable law and facts relevant to the matter and not on any other considerations. A litigant can never be under the impression that it can control or influence the outcome of an adjudication by factors unconnected to the litigation and least of all by a professional connection which a Court may have to the matter.

Justice Bhattacharya , while going through the documents filed by the parties had found two orders from 2005 and 2006 which recorded her appearance and after clarification from the from plaintiff's counsel got to know that the appearance was indeed hers. The Court has observed that it is unfortunate that these two orders were found before the Court was to deliver its judgement and it is shocking that none of the two orders were pointed out to by counsel before despite the matter being heard on several occasions.

"Since the parties cannot be saddled with the judgment in the given facts, the instant matter, though is a case of Love's Labour's Lost, is blessed with the silver lining that none of the parties before this Court will ever question the basis of the Court's reasoning. The perception that parties have been treated fairly is as much a part of the justice dissemination process as the steps taken by the Court to ensure fairness" - the Bench remarked.

Justice Bhattacharya therefore stated that since the petition for interim relief contained averments in relation to the proceedings where the two orders were passed and considering the fact that her appearance in respect of the plaintiff's trademark was not brought to her notice, the order of injunction has to be recalled. The Court has also clarified that as the order of injunction has continued from 8th October, 2020, the effect of this order to the extent of the recalling part, will remain in abeyance for a period of seven days to enable the plaintiffs to apply for appropriate orders.

In the present case, the Court was hearing applications filed in respect of an ex parte ad-interim order passed by the High Court on 8th October, 2020 restraining the defendant from selling or distributing its goods under the mark 'Duro Touch' or any other mark deceptively similar to the plaintiffs' trademark 'Duroply'. The defendant had then sought that the ex parte ad-interim order of injunction be vacated and order was reserved for judgment on 15th January, 2021. Along with the interim order, the order reserving the judgement in the case has also been cancelled.