Appeal is a statutory right. It is in fact creation of statute. Right of Appeal can be exercised only in accordance with the provision provided under the Act. It means if no provision of Appeal has been provided in the Act, appeal can not be filed. Of course there may be possibility of other remedy, but not the Appeal in such a Situation.

Law provides the right to file an Appeal only to the parties litigating in the original proceeding. But there may be a situation where the litigating party may choose not to file Appeal for whatsoever reasons. That order may be affecting case of third party adversely. In such a situation what remedy is available to third parties against such order.

One of such issue came up before the Hon'ble Division Bench, High Court of Delhi. The issue before the Hon'ble Division Bench was whether third party can challenge the order passed in a Suit proceeding of which the same was not a party.

This was Appeal bearing No. FAO (OS) Comm 85 of 2022 titled as Him Bio Agro Vs Sulphur Mill Ltd and another. In this case, the Hon'ble Division Bench, High Court of Delhi was pleased to entertain Appeal filed by Him Bio against order dated 02.08.2021 passed by Hon'ble Single Judge in CS (Comm) 1225 of 2018. Interesting thing in this case was that Him Bio Agro was not a party in Suit bearing CS (Comm) No. 1225 of 2018.

Fact of the case was that Sulphur Mill Limited filed Suit before the Hon'ble High Court of Delhi bearing CS Comm No. 1225 of 2018 against Dharmaj Crop Guard Limited on the basis of their Indian Patent Number 282429. Sulphur Mill Limited sought the relief of permanent injunction against the Defendant for Infringement of Indian Patent Number 282429.

Vide order dated 02.08.2021 passed by Hon'ble High Court of Delhi in Suit bearing CS (Comm) No. 1225 of 2018 the interim injunction application of Plaintiff was allowed. Against this order, till April 2022, no Appeal was filed by the Defendant there in namely Dharmaj Crop Guard.

Sulphur Mill Limited also filed another Suit against Dayal Fertilizer and other parties before the Chennai High Court, seeking similar relief of permanent injunction against the Defendants therein for Infringement of Indian Patent Number 282429. In this Madras High Court Suit proceeding, Him Bio Agro was defendant No.2.

This Madras High Court Suit was transferred to Hon'ble High Court of Delhi in view of order passed by Hon'ble Supreme Court of India on the transfer Petition filed and then this suit was renumbered as CS Comm 525 of 2021. When this Suit was listed before the Hon'ble Single Judge, High Court of Delhi, on 21.03.2022, the Plaintiff therein namely Sulphur Mill Limited relied upon judgment of High Court of Delhi in Sulphur Mills Limited Vs Dharamaj Crop Guard Limited & Anr. [CS (COMM) 1225/2018 decided on 2nd August, 2021, where in interim injunction application of Sulphur Mill has already been allowed. Relevant portion of the said order passed in CS Comm 525 of 2021 is as under:

"Ld. Counsel for the Plaintiff relies upon the judgment of this Court in Sulphur Mills Limited v. Dharamaj Crop Guard Limited & Anr. [CS (COMM) 1225/2018 decided on 2nd August, 2021]. Ld. Counsel for the Defendants, however, submits that he wishes to make some additional submissions in respect of non-infringement and file certain documents relating to the prima facie invalidity of the patent. On the next date, each of the ld. Counsels shall endeavour to conclude their arguments in half an hour each. List the applications seeking injunction for hearing on 17th May, 2022 at 2:30.p.m."

Problem with Him Bio Agro was that Dhramaj Crop Guard, the original contesting Defendant in CS (Comm) No. 1225 of 2018 has not challenged the order dated 02.08.2021. On this very order, Sulphur Mill Limited was heavily relying upon in CS Comm No. 525 of 2021.

Him Bio Agro , one of the Defendant in Suit bearing CS Comm No.525 of 2021 and was extremely aggrieved of order dated 02.08.2021 passed in CS Comm No. 1225 of 2018, though not a party to CS Comm No. 1225 of 2018.

In such a situation Him Bio Agro filed Appeal hearing No. FAO (OS) Comm 85 of 2022 titled as Him Bio Agro Vs Sulphur Mill Ltd and another before Hon'ble Division Bench, High Court of Delhi challenging the order dated 02.08.2021 passed in CS Comm No. 1225 of 2018.

When the said Appeal came up before Hon'ble Division Bench, the Locus of Him Bio Agro was disputed by Sulphur Mill Limited for challenging the order dated 02.08.2021 passed in CS Comm No. 1225 of 2018, as Him Bio Agro was not a party to CS Comm No. 1225 of 2018.

The order dated 02.08.2021 passed by Hon'ble High Court of Delhi in Suit bearing CS Comm No. 1225 of 2018, was challenged by Him Bio Agro on the ground that the interim order was likely to prejudice contention of Him Bio Agro that the patent granted to the Sulphur Mill Limited was vulnerable.

Him Bio Agro relied upon the Judgement of the Supreme Court in V. N. Krishna Murthy And Another Versus Ravikumar And Others (2020) 9 SCC 501 which, in which another judgement of Madras High Court was relied upon. The relevant portion of said reliance us as under:

"In K. Ponnalagu Ammani V. State of Madras this Court laid down that test to find out when it would be proper to grant leave to appeal to a person not a party to a proceeding against the decree or judgment passed in such proceedings in the following words. Now, what is the test to find out when it would be proper to grant leave to appeal to a person not a party to a proceeding against the decree or judgment in such proceedings? We think it would be improper to grant leave to appeal to every person who may in some remote or indirect way be prejudicially affected by a decree or judgment. We think that ordinary leave to appeal should be granted to persons who, though not parties to the proceedings, would be bound by the decree or judgment in that proceeding and who would be precluded from attacking its correctness in other proceedings."

In view of afore mentioned principle of law Him Bio Agro contended that its case should be heard afresh, uninfluenced by the observations in para nos. 51, 52, 74, 79 & 80 of the order dated 02.08.2021 passed by Hon'ble High Court of Delhi in Suit bearing CS Comm No. 1225 of 2018.

The Hon'ble Division Bench, High Court of Delhi, vide order dated 22.04.2022 passed in Appeal bearing No. FAO (OS) Comm 85 of 2022 disposed off the said Appeal with observing that the Appellant Him Bio Agro retains the right to so contend. Thus the said Appeal was entertained with liberty granted to the Appellant to agitate the issues dealt in specific paras of order dated 02.08.2021 passed in CS Comm 1225 of 2018 before the Hon'ble Single Judge again.

Though Him Bio Agro was not a party to Suit titled as Sulphur Mills Limited v. Dharamaj Crop Guard Limited & Anr. [CS (COMM) 1225/2018, still Appeal preferred against order dated 02.08.2021 passed by Hon'ble High Court of Delhi in Suit bearing CS Comm No. 1225 of 2018 was entertained accepting the argument of Him Bio Agro that the interim order was likely to prejudice contention of Him Bio Agro that the patent granted to the Sulphur Mill Limited was vulnerable.

This Judgement is certainly in favor of those third parties whose rights and case are prejudiced by the order passed in another proceeding, off which is is not a party. If third party can establish that the order passed in other proceeding is adversely affecting and that the third party is the person aggrieved , then Appeal filed by third party can be entertained.

Written By: Ajay Amitabh Suman: Advocate , High Court of Delhi