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