PUNJAB SOAP WORKS Vs. HINDUSTHAN LIVER LTD

JUDGEMENT

(1.) THIS is a Letters Patent appeal against an order of Naik ). , by which the learned single Judge dismissed an appeal against an order made by the First Additional District Judge, Jabalpur, granting an ad-interim injunction against the defendant-appellant in a suit filed by the respondent-Company for infringement of its registered trade marks and for passing off the goods of the defendant as those of the plaintiff.

(2.) ON behalf of the respondent Shri K. K. Dube raised the preliminary objection that the appeal was incompetent as the order of the learned Single Judge was not a 'judgment' under or within the meaning of Clause 10 of the Letters Patent of this court. Relying on a Full Bench decision of this Court in Manohar v. Baliram ILR (1952) Nag 471 : (AIR 1952 Nag 357), learned counsel argued that the order in question neither affected the merits of the controversy between the parties in the suit itself, nor did it terminate or dispose of the suit on any around, and consequently it was not a 'judgment' according to the test laid down in the Full bench decision.

(3.) IN reply Shri Dabir, learned counsel for the appellant, submitted that even according to the majority view expressed in ILR (1952) Nag 471 : (AIR 1952 Nag 357) (FB) (Supra) it was not necessary for the purpose of the appealability under clause 10, of an order that it should involve the determination of some right or liability in controversy between the parties in the suit itself; and that an order in an independent proceeding in a suit determining the rights and liabilities of the parties for the time being pending the disposal of the suit and terminating that controversy between the parties was a 'judgment' within the meaning of Clause 10. Learned counsel said that proceedings for the issue of a temporary injunction were independent proceedings as distinguished from proceedings purely ancillary and subsidiary which were no more than a step towards the obtaining of final adjudication in the suit that an order granting or refusing an injunction involved the determination of the rights and liabilities of the parties in regard to the subject-matter of the suit though the determination was for a temporary period till the disposal of the suit; that the determination though for a temporary period was for that period final and governed the rights of the parties; and that thus an order refusing or granting a temporary injunction was a final determination, so far as the court making that order was concerned, in regard to the rights of the parties in respect of the subject-matter of the proceeding pending the disposal of the suit and was, according to the test laid down in ILR (1952) Nag 471 : (AIR 1952 Nag 357) (FB) (Supra ). Learned counsel proceeded to say that if the decision in Manohar's case, ILR (1952) Nag 471 : (AIR 1952 Nag 357) (FB) was regarded as not supporting his contention, then the said decision required reconsideration in view of the observations of the Supreme Court in Asrumati Debi v. Rupendra Deb 1953 SCR 1159 : (AIR 1953 SC 198) on the definitions of 'judgment' given by Sir Richard couch C. J. , in Justices of the Peace for Calcutta v. Oriental Gas Co. 8 Beng LR 433 : 17 Suth WR 364 and Sir Arnold White C. J. in the Full Bench decision of madras High Court In Tuljaram v. Alagappa ILR 35 Mad 1 (FB ). We were also referred by the learned counsel for the appellant to the Full Bench decision of the allahabad High Court in Standard Glass Beads Factory v. Shri Dhar AIR 1960 All 692 (FB) holding that an order of a single judge of the High Court dismissing an appeal against an order granting temporary injunction is a 'judgment' within the meaning of Clause 10 of the Letters Patent.