The adversarial system used by the Indian judiciary is the same one that is used in practically all nations with common law. This adversarial system's need that natural justice principles be upheld while passing any injunctions is one of its most crucial features. This means that the party who would be affected by any orders must be heard by the court before any orders are made.

However, in cases involving intellectual property rights, exceptions have been made. A system for granting ex parte injunctions in cases involving intellectual property rights has been developed by the court. In cases involving trademark infringement, an Order of ex parte injunction is crucial.



This does not imply that the party adversely affected by the ex parte injunction order does not have any protection in place, though. According to Order 39 Rule 4 CPC, such a party has the opportunity to request the cancellation of the ex parte injunctive order on many grounds, including suppression.



What transpires, then, when a party directly approaches the Appellate Court in opposition to such an ex parte injunction order, rather than filing an application pursuant to Order 39 Rule 4 CPC, based on fresh evidence that was not presented to the Trial Court at the time the ex parte injunction order was issued?



Would it be appropriate for the Appellate Court to consider and grant the defendant such relief based on fresh information and documents that was not presented to the Trial Court when it issued the ex parte injunction? Or would it be more appropriate to instruct the Single judge to make decision based on the basis of fresh materials and information that the defendant has entered into the record?

Vide Judgement dated 07.10.2022 passed in the Commercial Appeal No. Interim Application (L) No. 28715 Of 2022 In Commercial Ip Suit (L) No. 28710 OF 2022 , the High Court of Judicature at Mumbai, Comprising of Hon'ble Justices Shri GS Patel and Shri Gauri Godse, in the case titled as Kewal Ashokbhai Vasoya and Another Vs Suarabhkati Goods Pvt. Ltd. have dealt with such issue.

The respondent was the plaintiff, while the appellant was the defendant. The Plaintiff filed the subject matter lawsuit against the Defendant in an effort to get a permanent injunction for trademark infringement and passing off. Ex parte injunctions were granted in this case by the single judge in favour of the plaintiff and against the defendant.

Being displeased, the subject appeal was filed against the Hon'ble Single Judge's decision in the case for trademark infringement and passing off filed by the respondent and against the appellant, which resulted in the grant of an ex-parte injunction in favour of the respondent and against the appellant.

The Respondent allegedly omitted crucial information from the Plaint in order to secure the ex-parte injunction, which was the principal accusation made by the Appellants. In order to support its argument for suppression, the appellant also presented additional evidence before the Hob'ble Division Bench for record.

The Single Judge did not have an occasion to deal with these documents. The ex parte injunction order may always be vacated by the Appellant by approaching the Single Judge and submitting an application in accordance with Order 39 Rule 4 CPC. The defendant instead made the decision to prefer an appeal against such an ex parte injunction.

The Hon'ble Court declined to grant any relief to the Appellant. The reasons assigned by the Hon'ble Division Bench are that when a defendant comes up on appeal against such a without notice order, accusing the plaintiff of suppression, falsehood or worse, what the defendant is essentially doing is making an application at a very early stage that is indistinguishable in its conceptualization from an application under Order 41 Rule 27 of the CPC for the appeal court to receive additional material directly.

The Hon'ble Division Bench further observed that what the defendant now says is that the without notice ad interim time-limited order must be vacated or set aside on material that was never placed before the Single Judge, and to which the single Judge had no opportunity to apply his or her mind.

The Hon'ble Division Bench insisted that it is not a practice that should be encouraged. It is indeed to be thoroughly deprecated. The reasons are self-evident. It is always, and we would say invariably, impermissible for an appeal court to reverse the order of a single Judge on material that was not before him or her, barring the most exceptional circumstances contemplated by the CPC.

Based on the foregoing, it is clear that when an Appellant files an Appeal against an ex-parte order of injunction, the Appellant court should not set aside the order on the basis of new material placed on record by the Appellants.

This is why the Hon'ble Division Bench refused to interfere with the ex-parte injunction order, and the Appellants were directed to argue their case before the Hon'ble Single Judge.

When an appeal is filed against an ex parte order of injunction, the defendant is only required to show the documents that were in front of the single Judge when the ex parte injunction was issued.

The Appellate Court would not encourage the practise of overturning an ex parte injunction order based on new evidence. Of course, the Defendant may seek vacation of the injunction order before the defendant in the suit proceeding.

Case Law Discussed:
Case Title: Kewal Ashokbhai Vasoya and Another Vs Suarabhkati Goods Pvt. Ltd.
Judgement date:07.10.2022
Commercial Appeal No. Interim Application (L) No. 28715 Of 2022 In Commercial Ip Suit (L) No. 28710 OF 2022
Name of Court: High Court of Judicature at Mumbai
Name of Hon'ble Justice: GS Patel & Gauri Godse, JJ

Written By: Ajay Amitabh Suman, IPR Advocate, Hon'ble High Court of Delhi.
Email: [email protected], Ph no: 9990389539