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
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
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
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.
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
Email: [email protected]
, Ph no: 9990389539