J M S LABS Vs. YUSUFALI EESMAIL HADVAID

JUDGEMENT

(1.) This appeal challenges the ex-parte ad-interim injunction dated August 19, 1997 granted by the learned Extra Assistant Judge, Gondal restraining the appellant-defendant from using the trade mark labels/artistic works of J.M.S. and/ or NEW J.M.S. LAL LEP as per Annexure-B (colly.) to the interim injunction application on pouch/packet, carton/box and pamphlet having identical and deceptively similar art works, designs, get-up, lay-out, placement of features in identical colour scheme with the identical name, LAL LEP or any other identical or deceptively similar trade mark labels/artistic works to the plaintiff's trade mark labels/artistic work of LAL LEP as per Annexure-A (colly.) to the interim injunction application and thereby passing off or enabling others to pass off their Ayurvedic preparation used for bone-setting and also from infringing the copyrights and trade mark rights of the plaintiff in any manner.

(2.) Mr. Shah, learned Counsel for the appellant-defendant submitted that the trial Court ought not to have granted ex-parte injunction in view of the provisions of order under Order 39, Rule 3 C.P.C. The reasons given by the trial Court for granting exparte injunction are germane to the merits of the matter rather than to explain as to how delay would defeat the ends of . Reliance has also been placed on certain decisions of this Court, viz., P. Chidcambaram v. Joint Civil Judge (J.D.), Narol, Ahmedabad , AIR 1986 Guj. 17; Indian Oil Corporation LIMITED, Baroda v. M/s. Gandhi Travels and Tours, Baroda, [1988 (1)] XXIX (1) GLR 316; Jalaram Ceramic LIMITED v. Pedder and Pedder Tiles LIMITED,. and Prestige AM-Polycontainers LIMITED v. Mauser Merke Gmbh, Schilgesstrabe , Appeal from Order No. 29 of 1994. It is, therefore, submitted that the trial Court should not have passed such an ex-parte order without first giving the defendant an opportunity of being heard or without recording reasons as to why it was necessary to grant an ex-parte interim injunction without giving the defendant an opportunity of being heard.

(3.) Mr. P. M. Thakkar learned Counsel for the respondent-plaintiff has raised a preliminary objection to maintainability of the appeal. He stated that the trial Court had fixed the hearing of the interim injunction application on August 29, 1997. On the returnable date the defendant applied for adjournment before the trial Court for filing its written statement and, therefore, the plaintiff also submitted an application for extending the ad interim injunction to which the learned Advocate for the defendant agreed that the ad interim injunction may be extended till the next date of hearing. Mr. Thakkar has, therefore, submitted that since the appellant-defendant had prayed for adjournment before the Court on the returnable date and also agreed to the extension of the ad interim relief, the present Appeal from Order is not competent.