DIAMED AG Vs. MOREPEN LABORATORIES LTD

JUDGEMENT

(1.) This appeal is directed against the order dated 19.10.2006 passed by the learned Single Judge in the suit registered as CS(OS) No. 2013/2006. In the aforesaid suit, an application for grant of temporary injunction was also filed, which was registered as I.A. No. 11836/2006. The learned Single Judge took up the suit as also the injunction application for consideration and issued notice in the suit making it returnable on 4th December, 2006. After issuing notice in the suit, notice was also issued on the said application making the same returnable on 4th December, 2006. In the same order, the learned Single Judge has referred to the averments made in the plaint and the submissions made by the counsel for the plaintiff/respondent No.1 and after considering the statements, recorded that the plaintiff has made out a prima facie case and that there also exists balance of convenience in favour of the plaintiff and against the defendant and that the plaintiff would suffer irreparable loss and injury which cannot be compensated in terms of money in the event an ex parte ad interim injunction order is not granted in its favour. After being satisfied of all the aforesaid factors for grant of injunction, the learned Single Judge granted injunction restraining the defendants and all persons acting on their behalf from acting in pursuance to letter dated 4th July, 2006 and from committing breach of any of its obligations under the agreement dated 01.01.2001. The defendants had also been restrained from using in any manner, the entire data of the Diagnostic Division of the plaintiff company, including the list of the customers/clients of the plaintiff company along with the cost-sheet with import tariff, sales data and profitability statement since February, 2001.

(2.) The aforesaid order granting ad interim ex parte injunction is under challenge in this appeal on which we have heard the learned counsel for the appellant as also the counsel appearing for respondents No.1 and 2. It is contended before us that the learned Single Judge completely ignored the provisions of Order XXXIX Rules 1 and 2 and also the provisions of Order XXXIX Rule 3 and Order XXXIX Rule 3(A) of the CPC while passing the order of aforesaid injunction.

(3.) During the course of arguments, counsel for the appellant has submitted that although the appellant has admittedly been served with the summons of the suit and notice of the application was served on or about on 21st/22nd October, 2006, despite the said fact, the appellant is yet to enter appearance in the suit. It is also admitted position that the appellant has neither appeared in the suit, nor filed any written statement or reply to the application under Order XXXIX Rules 1 and 2 CPC, nor filed any application seeking vacation of the injunction or for praying for advancing the date of hearing of the injunction application. The appellant has filed the present appeal and the counsel appearing for the appellant, while pressing the appeal, has submitted that it is not necessary for him to appear before the learned Single Judge and pray for vacation of the stay operating against it, or for early hearing, as a right is vested on the appellant to file an appeal as against the aforesaid order.