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Ex-Parte Orders Passed Without Issuance Of Notice Cannot Be Brought Within Purview Of S36 Cpc For Execution: Kerala High Court

Arundhathi ,
  15 September 2022       Share Bookmark

Court :
High Court of Kerala
Brief :

Citation :
FAO NO. 94 OF 2022

Case Title:
G.M Sheikh Vs Raja Biri Pvt Ltd.

Date of Order:
August 31, 2022

Bench:
P.Somarajan

Parties:
Appellants- G. M Sheikh and Others
Respondents- Raja Biri and Others

SUBJECT

The appeal came up regarding an alleged infringement of the trademark and name of Raja Biri and Raja Bidi. Before any notice was issued to the appellants, an ex parte ad interim order was granted on 01/06/2022 which restrained them from doing their business. It was stated that the appellants were not heard on merit by the Court. The Court went into detail regarding the meaning of the term “ex parte” and the objective of issuing such an order. It was held that an order passed without issuing notice to the opposite party cannot be brought under the purview of Section 36 C.P.C. The trial court’s actions of appointing a Commission for the implementation of the order was seen as a violation of the mandate under sub-section (3) of Section 135 of the Trade Marks Act. It was stated that the court should be more cautious and vigilant while passing ex parte interim orders under this section. Thus the request for transferring the case to the Principal District and Sessions Court, Thiruvananthapuram was allowed. The interim stay that the High Court has granted would extend till the Principal District and Sessions Court disposes of this application. Hence the appeal was allowed and disposed of.

IMPORTANT PROVISIONS

  • Section 135 (2) of The Trade Marks Act, 1999- Clause 2 of this Section dealt with the issuing of an order of injunction which may also be an ex parte injunction. This may be done for any of the following reasons:
  1. for discovery of documents
  2. preserving infringing goods, documents or other evidence which are related to the subject matter of the suit;
  3. restraining the defendant from disposing of or dealing with his assets in a manner which may adversely affect plaintiff’s ability to recover damages, costs or other pecuniary remedies which may be finally awarded to the plaintiff.
  • Section 36 of Code of Civil Procedure, 1908- The provisions of this Section were related to the application of orders. It is held that as far as the provisions of the Code are concerned, they are deemed to apply to the execution of orders.

OVERVIEW

  • The dispute in this appeal was regarding an alleged infringement of trade mark and name of Raja Biri and Raja Bidi. An ex parte ad interim injunction was granted which restrained the appellants from doing their business, and the counter arguments filed by the appellants were not heard on merit. The ex parte order was issued without any prior notice being issued to the appellants.
  • The appellants also filed an application for an early hearing, which was also not heard.
  • The trial court appointed a Commission to collect the materials that belonged to the appellants which were supplied to various shops and provided police protection to the Commissioner doing this job. In this manner, the interim ex parte injunction was carried out.

ISSUES RAISED

  • Whether an ad interim injunction can be implemented if the opposite party was not given any prior notice, and was also denied of the “right to be heard”.
  • Whether an ex parte ad interim order of injunction can be executed through the court under Section 36 of C.P.C. and whether it can be treated on par with an order which was passed after hearing both parties, in which one party remained absent even after notice.

ARGUMENTS ADVANCED BY THE APPELLANT

  • Despite the appellants appearing and filing their counter arguments on the matter, they were not heard on merit within the time period of 30 days. The appellants thus filed an application for an early hearing, which was also not heard or given due merit.
  • The interim order granted would not come under the limited purview of clause (a) or (b) of Section 135(2). The purpose of Section 135(2) of the Act is for the purpose of protecting the property or assets of the plaintiff. The order may be issued for payment of damages, costs, and other pecuniary remedies. However, preventing the appellant from carrying out sales and appointing a Commission for the same does not come under this Section.

ARGUMENTS ADVANCED BY THE RESPONDENT

  • There is no provision for this appeal against an ex parte interim order that has been issued, and thus it cannot be sustained.
  • It was submitted that the trial court has the jurisdiction of granting an ex parte ad interim injunction prior to any notice according to Section 135 of the Trade Marks Act, 1999.

JUDGEMENT ANALYSIS

  • The Court went into detail about the meaning of the term “ex parte” and its legal usage. The term “ex parte” order is normally used to refer to orders or decrees passed in the absence of the opposite party. In fact, the expression “ex parte” stands for and signifies something done or said by one person, in the absence of the opponent. In legal terms, it means any order or decree that was passed in the absence of the opposite party. An ex parte decree means a decree granted by the court on the basis of evidence of the plaintiff that proves the absence of the defendant. An ad interim injunction granted without prior notice to the respondent could also be termed as an “ex parte” order.
  • In such an order, the term may be used if there was no prior notice issued regarding it, or if the party pertaining to it was absent inspite of a notice being sent. Thus, if the party was given a chance to be heard and still did not appear for the same, the order would remain binding on him. However, in the first case since the party is denied the fundamental legal right of “audi alteram partem”, the order cannot be said to be binding on the parties.
  • The “right to be heard” has been widely accepted as a principle to be followed without fault in all judicial and quasi-judicial procedures. The “opportunity to be heard” should be given in all cases, unless which the order does not stand valid. This is to make sure that the person against whom allegations are leveled, is informed about these, is given the right to explain himself, and to know both oral and documentary evidence submitted against him. Thus, the binding force of an order is fundamentally based on this right which has to be fulfilled by the Court issuing such order.
  • Therefore, an order passed without issuing notice to the opposite party cannot be brought under the purview of Section 36 C.P.C. It should be merged in a subsequent order after notice to the opposite party. The binding force or nature of any order or decree is based on the principle of the fulfillment of the “right to be heard”. If the opposite party has failed to appear and answer, the order passed ex parte would be binding upon him, but when no notice was issued and no opportunity of hearing was given to be heard, the orders passed cannot be implemented.
  • Thus, the appointment of a Commission to prevent sales of the appellant and to seize all materials would be a violation of sub-section (3) of Section 135 of the Trade Marks Act. The fact that the appellant was not given a right to be heard inspite of submitting an application for an early hearing and was not heard even after 30 days would make the action of the trial court deserving to be considered mischief.
  • The Court also said that courts should be more cautious and vigilant while passing ex parte interim injunctions. Any such order should not be in violation of the rights of the opposite parties.

CONCLUSION

The Court in this judgement held that an order passed without prior notice being issued to the opposite party cannot be brought under the purview of Section 36 CPC. It cannot be executed until it is merged in a subsequent order after issuing notice to the opposite party. Thus the Court allowed this case in its entirety of all records pertaining to it, from the Additional District Court to the Principal District Court of Thiruvananthapuram. The interim stay till the case will be extended till the said Court disposed of the application.

Click here to download the original copy of the judgement

Learn the practical aspects of CrPC HERE, CPC HERE, IPC HERE, Evidence Act HERE, Family Laws HERE, DV Act HERE

 
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