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S.135 Trade Marks Act: Scope Of Granting Interim Injunction Is Limited, Vigil & Caution Must While Granting Ex-Parte Relief: Kerala High Court

Arundhathi ,
  21 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

Justice P.Somarajan

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


The appeal was brought up due to an alleged infringement of Raja Biri and Raja Bidi's trademark and names. Ex parte ad interim injunction prohibiting the appellants from conducting business was granted on January 6, 2022, prior to any notice being given to them. It was claimed that the Court did not hear the appellants on the merits. The Court elaborated on the definition of "ex parte" and the purpose of making such an order. It was decided that an order that was made without giving the opposing party notice was not subject to Section 36 C.P.C.It was deemed a violation of the requirement under subsection (3) of Section 135 of the Trade Marks Act that the trial court appointed a Commission to carry out the order. It was noted that when making ex parte interim orders pursuant to this clause, the court should exercise greater caution and vigilance. As a result, the plea to move the matter to the Principal District and Sessions Court in Thiruvananthapuram was granted. The High Court's interim order will remain in effect until the Principal District and Sessions Court rules on this application. As a result, the appeal was allowed and dismissed.


  • 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.


  • The alleged violation of Raja Biri and Raja Bidi's trade name and trademark was the dispute in this appeal. The appellants' commercial operations were prohibited by an ex parte ad interim injunction, and their counter arguments were not given an opportunity of hearing on merit. Without giving the appellants any previous notice, the ex parte order was issued.
  • Additionally, the appellants submitted a request for an early hearing, but that request was also not taken up.
  • The trial court appointed a Commission and provided police protection for the Commissioner to collect the appellants' merchandise that was supplied to various stores. The interim ex parte injunction was implemented in this way.
  • Whether an ad interim injunction was applicable if the opposing party was not given prior notice and was not given the opportunity to be heard.
  • If an ex parte ad interim order of injunction under Section 36 of the C.P.C. may be carried out by the Court, would it be treated equally to an order made after hearing both parties, in which one party failed to appear despite notice.


  • Despite the appellants' presence and the submission of their counter arguments, they were not given a fair hearing within the mandated 30 days. The appellants responded by filing a request for an early hearing, which was likewise ignored or not given fair consideration.
  • The granted interim order would not fall within the narrow scope of clause (a) or (b) of Section 135 (2). The Act's Section 135(2) was written with the intention of safeguarding the plaintiff's assets and property. The order may be given to pay for expenses, damages, and other financial remedies. However, this Section does not apply if you stop the appellant from making sales and assign a commission to do so.


  • As there is no provision for this appeal against a previously granted ex parte interim order, it cannot be upheld.
  • It was argued that Section 135 of the Trade Marks Act, 1999 gives the trial court the authority to issue an ex parte ad interim injunction before issuing any notice.


  • The meaning and legal application of the term "ex parte" were discussed in great length by the Court. Ex parte orders are orders or decrees that were made without the participation of the opposing party. Ex parte actually refers to something being done or expressed by one person without the other person present. In the context of law, it refers to any order or decree that was made without the participation of the opposing party. An ex parte decree is a decision made by the court based on the plaintiff's evidence that the defendant was not present. The word "ex parte" refers to a temporary injunction issued without providing the respondent with prior notice.
  • The term "ex-parte" may be used in such an order wherein no prior notice was given regarding such an order, or if the party involved was not present despite receiving a notice. Thus, if the party had a chance to be heard but yet failed to show up for the hearing, the order would still be binding on him. The order cannot be deemed to be binding on the parties in the first instance since the party is denied the fundamental legal right of "audi alteram partem."
  • The "right to be heard" has long been recognised as a fundamental rule that must be adhered to in all legal and quasi-judicial processes. Unless the order is invalid, the "chance to be heard" should always be provided. This is done to ensure that the person making the accusations is aware of them, has the opportunity to defend himself, and is aware of any oral or written evidence used against him. As a result, an order's essential basis for binding effect is this right, which the court must uphold in order for it to be issued.
  • Thus, an order that was made without giving the opposing party notice is not subject to Section 36 C.P.C. After giving notice to the opposing party, it should be combined in a later order. Any order or decree's binding nature or power is founded on the idea that the "right to be heard" has been upheld. When no notice was given and no opportunity was provided for a hearing to be held, the orders passed cannot be put into effect. If the opposing party had failed to come and respond, the ex parte order would be binding upon him.
  • As a result, it would be against Section 135 of the Trade Marks Act's subsection (3) to appoint a Commission to prohibit sales of the appellant and confiscate all materials. The trial court's actions deserve being viewed as mischief because the appellant was denied the right to a hearing despite submitting a motion for an expedited hearing and was not heard even after 30 days.
  • The Court further ruled that judges should exercise greater caution and diligence when granting ex parte interim injunctions. Such a ruling must not violate the rights of the opposing parties.


In this ruling, the court determined that an order that was made without first giving notice to the opposing party could not be subject to Section 36 CPC. It cannot be put into effect unless it is merged with another order after the opposing party has been given notice. As a result, the court approved the case in its entirety, including all relevant records from Thiruvananthapuram's Additional District Court to Principal District Court. The temporary injunction is in effect while the application is being considered by the relevant court.

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