Advance Service On Defendant Must Under IPD Rules, Unless Plaintiff Demonstrates Likelihood Of Irreparable Injury: Delhi High Court

Calling out the routine practice of litigants filing such pleas, merely because interim relief applications are also filed in IPD suits, Justice C Hari Shankar said that if this course was allowed to be followed, requirement of advance service under Rule 22 would be reduced to a redundancy.

Holding that no party can seek an uncontested order as a matter of right, it was remarked that there shall be no objection to compliance with requirement as basic as the one contained in Rule 22, unless “there are overarching considerations of justice, equity or public interest which positively require that the opposite party should not be made aware that a suit is being instituted against him”.

The plaintiffs, being diagnostic service providers under the registered trademark “House of Diagnostics/H.O.D.”, filed the suit alleging that the defendant is infringing their mark by using the mark “House of Pathology/H.O.P.”, for similar services. However, they did not serve the defendant in advance.

Rule 22 of the IPD Rules requires service of the suit papers to be effected on a defendant two working days in advance of filing of the suit.

Observing that the requirement of advance service of defendant cannot be dispensed with mechanically, the court said,

“The opening words of the Rule read “advance copy shall be served at the address for service”. Though “shall” can, at times, be read as “may”, the cardinal principle remains, however, that the word “shall”, when used in a statute, normally denotes its imperative character. Dispensation with advance service is only contemplated by the proviso, and has to be a conscious decision taken in the facts and circumstances of a given case.”

In the analysis, while underlining the importance of contest from a public interest perspective, it was opined,

“…an uncontested order passed by a Court is pregnant with the possibility of error, as the Court passes the order after hearing only one side. A contested order does no prejudice to either side and also substantially insulates the Court from making errors, either of facts or of law.”

The court added that the requirement of advance service is in consonance with the audi alteram partem rule. From this perspective, the defendant in fact would have a “right to seek audience” before being faced with an adverse injunctive order, unless the case falls in the excepted categories.

Justice Shankar illustrated certain situations in which exemption from advance service may be sought and granted. Pithily put, these cases would be of a nature where plaintiffs intend to make the court aware of the status quo as it exists when the plaint is filed, and to prevent the defendant from altering it.

In the facts of the case, it was held that there was no justification for the plaintiffs to have filed the suit without advance service on the defendant. Insofar as the plaintiffs sought to defend by asserting that a legal notice was served on the defendant putting it to notice of the alleged infringement, the court said,

“The conduct of the defendant, or the issuance of the legal notice to the defendant before instituting the suit or the extent of infringement or otherwise that the plaintiff perceives to be taking place, cannot be considerations which immunize the plaintiff against the requirement for effecting a two-day advance service of notice on the defendant before instituting the suit.”

Considering that plaintiffs' plea was based on the proviso to Rule 22, the court opined,

“…no case for invoking the proviso to the said Rule can be said to exist. The Court cannot implement the Rule in such a manner that the Rule becomes the proviso and the proviso becomes the Rule.”

The matter has been renotified for preliminary hearing on December 12, 2023, by which time the plaintiffs are to effect advance service on the defendant.

Advocates Vaibhav Vutts, Aamna Hasan and Anupriya Shyam appeared for plaintiffs/HoD

Case Title: House of Diagnostics LLP & Ors. v. House of Pathology Labs Private Limited

Citation: 2023 LiveLaw (Del) 1260