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Ex Parte Appointment Of Local Commissioner Under Order 26 Rule 9 CPC: A Case Study

A case come up before the Hon'ble High Court of Delhi in which the Plaintiff was asking for ex parte injunction and appointment of Local Commissioner ex parte. In view of above the Plaintiff was not taking steps for effecting service on the Defendant inspite of so ordered.

In such a situation question was whether the plaintiff required to effect services on the Defendant before adjudication of application under Order 39 Rule 1 and 2 CPC and application under Order 26 Rule 9 CPC?

The brief fact of the case leading to filing of the subject matter Petition before the Hon'ble High Court of Delhi was that the Plaintiff namely Lumax Industries Ltd. filed Suit for infringement and passing off against user of Trademark LUMAX by the Defendant.

The Suit was filed before the District Judge, New Delhi. The Plaintiff also filed application under Order 39 Rule 1 and 2 CPC and application under Order 26 Rule 9 CPC seeking ex parte injunction as well as ex parte appointment of Local Commissioner.

However instead of granting ad interim injunction and instead of appointing Local Commissioner ex parte , the Ld. Trial Court issued Summons of the applications to the Defendant.
Though arguments were heard for sometime however both the applications of the Plaintiff remained undecided for considerable period of time. Hence Plaintiff filed application under Section 151 CPC for deciding application under Order 39 Rule 1 and 2 CPC and application under Order 26 Rule 9 CPC.

Argument were heard of many dates by the Ld. Trial Judge.Even order was reserved in the applications. However instead of passing any order, the Ld. Trial Judge again issued summons to the Defendant on both of the Applications of the Plaintiff.

Obviously the Defendants were not being served as Plaintiff was not taking steps for effecting service of the same to the Defendants. The Plaintiff,  instead was desirous of getting ex parte orders in its application under Order 39 Rule 1 and 2 CPC and application under Order 26 Rule 9 CPC.

Being aggrieved of the same , the Plaintiff filed the afore mentioned Civil Revision Petition bearing no.CM(M)-IPD 12/2022 titled as Lumax Industries Ltd. Vs Hindustan Auto Industries,  before the Hon'ble High Court of Delhi.

Vide order dated  09.05.2022 the afore mentioned petition bearing no. CM(M)-IPD 12/2022 was disposed of with direction to the Ld. Trial Court to take up the application of the Plaintiff  under Order 39 Rules 1 and 2 CPC  as well as application for appointment of Local Commissioner. The Ld. Trial Court was also requested to consider the relief of Plaintiff for grant of ad interim ex parte injunction.

It is submitted that in IPR matters , it is normal practice that  the Local Commissioners are appointed ex parte as after service of summons, the Defendant may remove the impugned  products in order to deny their involvement in the  infringing activities.

In case summons of service of the mentioned applications are effected on the Defendant, the very purpose of filing this application becomes infructuous. This concern was rightly addressed by the Hon'ble High Court and requested the Ld. Trial Court to consider the request of Plaintiff for appointment of local commissioner ex-parte.

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

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