NATUREPRO BIOCARE INC Vs. NATUROMA HERBAL PVT LTD

JUDGEMENT

(1.) THE appellants as plaintiffs have instituted a civil suit being C.S. No. 1 of 2012 in the court of the learned District Judge, Bhubaneswar seeking for a decree declaring that plaintiffs are sole and/or exclusive user of the trade name/brand name/trade mark of "NATUREPRO" for its cosmetic products and for a decree for permanent injunction restraining the defendants respondents frominterfering, marketing, selling and advertising by using the trade name as aforesaid or any other name similar to it and for permanent injunction restraining the defendants -respondents from pursuing any application for grant of trade mark before the competent registering authority for the trade mark "NATUREPRO" and for appointment of receiver of the goods of the defendants which are manufactured and marketed in violation of the provisions of the trade mark of the plaintiffs under the provisions of the Trade Marks Act, 1999 (for short, 'the Act'). Along with the paint, the appellants as plaintiffs, filed an application under Order XXXIX, Rules l and 2 C.P.C. which was registered as I.A. No. 13 of 2012. A petition was filed by the plaintiffs under Order XXXIX, Rule 3 C.P.C. praying to grant an ad interim ex parte injunction in the said interim application for restraining the defendants from manufacturing, marketing/distribution/selling/advertising any product using the trade mark of "NATUREPRO HERBAL" and/or "NATUREPRO" as well as from pursuing any application for grant of trade mark before the competent registering authority for registration of the trade mark "NATUREPRO HERBAL" and/or "NATUREPRO". The learned District Judge upon hearing the said interim application passed an ex parte order of ad interim injunction on 3.2.2012 by elaborately discussing the facts of the case and the various litigations in which the parties are involved and entangled. In the said order, the learned District Judge came to the conclusion that prima facie there appears to be an act of passing off as alleged by the plaintiffs. He also concluded that the loss that would be caused by such act cannot be calculated in terms of money and may be irreparable. He found that the balance of convenience tilts in favour of the plaintiffs. Thus finding, the learned court gave the reason that the materials on record justify passing of an ex parte ad interim order of injunction till the defendants appear and make their submissions. The court directed that the defendants are restrained from interfering/marketing/distributing/selling or advertising their products by using the aforesaid trade name, i.e., "NATUREPRO" and "NATUREPRO HERBAL" till 16.3.2012. In the said order, the learned court directed the appellants -plaintiffs to comply the provisions of Order 39 Rule 3 C.P.C. By order dated 19.3.2012, the learned District Judge finding that there is non -compliance of Rule 3 of Order XXXIX C.P.C., which is mandatory and such noncompliance has serious consequences, rejected the contentions of the petitioners (appellants) before him and refused to extend the order of injunction granted ex parte earlier, for which the appellants filed an application before him. Thereafter, the learned District Judge directed as follows: -

(2.) IT , therefore, transpires from the records that on 16.3.2012, an application was filed on behalf of the appellantsplaintiffs to extend the ex parte order of injunction till final hearing of the interim application under Order XXXIX, Rules 1 and 2 C.P.C. The respondents, who were the opp. parties, also filed a petition with a prayer to vacate the ex parte ad interim order of injunction passed against them, on the ground that the appellants having not complied with the provisions of Order XXXIX, Rule 3 C.P.C within the time stipulated therein, the ex parte ad interim order of injunction is liable to be vacated.

(3.) AT the out -set, Mr. S.P. Mishra, learned senior counsel appearing for the respondents raised the question of maintainability of the appeal. He contended that under Order 43, Rule 1 (r) C.P.C., an order under Rule 1, Rule 2, Rule 2(A), Rule 4 or Rule 10 of Order XXXIX C.P.C. is appealable. This being not an order within the meaning of the said rules, the appeal cannot be maintained.