RAJESH BATRA Vs. GRANDLAY ELECTRICALS INDIA

JUDGEMENT

(1.) The plaintiff-respondents have filed a suit for issuance of perpetual injunction and recovery of damages etc. complaining of infringement of trade mark and passing off. An application under Order 39 Rules 1 & 2 Civil Procedure Code seeking issuance of ad-interim injunction was also filed and an order ex-parte sought for. On 14.10.96, the learned Single Judge directed the plaint to be registered and summons to be issued to the defendant-appellants, returnable on 27th March, 1997.

(2.) On the same date the following order was also passed which is impugned in this appeal :-

(3.) This is an appeal under Clause (r) of Rule 1 of Order 43 of the Civil Procedure Code which contemplates an appeal against an order under Rule 1, Rule 2, Rule 2A, Rule 4 or Rule 10 of Order 39 of the CPC. The maintainability of this appeal is objected to by the learned counsel for the plaintiff-respondents submitting that in as much as the remedy of seeking discharge, variation or set aside of the order of injunction under Rule 4 of Order 39 of the Civil Procedure Code is available to the defendant- appellants, the present appeal does not lie. Even if it be maintainable, no fault can be found with the impugned order, in as much as the only material which would be taken into consideration by this Court would be the one made available by the plaintiff-respondents on the record of the civil Suit. The consideration of any new material brought on the record of the appeal for the first time would not be permissible for deciding the correctness, legality or propriety of the order under appeal in as much as the same was not before the learned Single Judge when he passed the impugned order, submitted the learned counsel for the plaintiff-respondents.