M/S ASHWANI PAN PRODUCTS PVT. LTD. vs. M/S KRISHNA TRADERS

.* HIGH COURT OF DELHI : NEW DELHI

+ CS (OS) No.284/2012

% Date of order: 02.03.2012

M/S ASHWANI PAN PRODUCTS PVT. LTD.
..... Plaintiff
Through: None.


Versus


M/S KRISHNA TRADERS ..... Defendant
Through: Ms Prathiba M. Singh, Adv. with
Mr Ashwin Kumar, Adv.
Coram:
HON'BLE MR. JUSTICE MANMOHAN SINGH

MANMOHAN SINGH, J. (Oral)
I.A. No.2846/2012 (u/o XXXIX, R.4 CPC, by defendant),
I.A. No.2222/2012 (u/o XXXIX, R.1 & 2 CPC)

1. The present suit has been filed by the plaintiff for permanent
injunction, infringement of trademark, passing off, rendition of accounts
and damages against the defendant seeking to restrain it from using the
trademark MADHU BAHAR in respect of chewing tobacco.
2. The suit along with interim application was listed on
06.02.2012. The court passed an interim order thereby restraining the
defendant from manufacturing, selling, offering for sale or otherwise
dealing in “Chewing Tobacco” under the trade mark “MADHU
BAHAR” or any other trade mark which may be deceptively similar to
that of the plaintiff. Today the matter was listed for disposal of the
CS (OS) No.284/2012 Page 1 of 10

pending applications and arguments on behalf of the plaintiff as the
learned counsel for the defendant already made her submissions on
29.02.2012. The following points were raised by the counsel for the
defendant:
(a) The compliance of Order XXXIX, Rule 3 CPC has not been
made by the plaintiff, as provided under the said provision.
(b) The plaintiff has never used the green colour label as filed in
Court along with the suit and it has been filed by the plaintiff
in order to obtain the ex parte order.
(c) The sale figures given by the plaintiff in the pleading do not
tally with the sale figures pertaining to the said trade mark in
the affidavit filed by the plaintiff in Trade Mark Office.
(d) The two trademarks “MADHU” and “MADHU BAHAR”
are different. There is no separate registration in favour of
the plaintiff for word per-se. The plaintiff has merely got the
registration as a label mark. Hence, there is no infringement
under the provisions of Section 17 of the Trade Marks Act,
1999.
(e) As the defendant is also holding the license of the said trade
mark through United Traders, therefore, the suit for
infringement of the trade mark is not maintainable.
3. After the completion of the arguments, the Court enquired
about the compliance of Order XXXIX Rule 3 CPC from Mr Ashok
Mittal, Advocate, who appeared on behalf of the plaintiff. He
submitted that in compliance of Order XXXIX Rule 3 CPC, an
affidavit of the plaintiff’s counsel was filed in the Registry. However,
CS (OS) No.284/2012 Page 2 of 10

he agreed that the weight of the entire paper book filed before Court is
more than 2.5 k.g. and the parcel sent under the compliance of Order
XXXIX Rule 3 CPC is about 1 k.g. He also undertook before Court to
produce relevant record of the green colour label if it has been used by
the plaintiff at any point of time with cogent evidence. He was unable
to give any justification as to why the sale figures produced by the
plaintiff in Court did not tally with the sale figures filed in the Trade
Mark Office.
4. The counsel for the plaintiff stated that the affidavit of
compliance was filed in the Registry and the copy of the same was
shown to the Court along with postal receipt. However, as per the
report of the Registry, the said affidavit has not been filed.
5. When the ex-parte order was granted on 06.02.2012, one
week’s time was granted to the plaintiff to comply with the provisions
of Order XXXIX Rule 3 CPC. According to the learned counsel for
the plaintiff, the affidavit was filed within one week. But, the fact
remains that the complete set of paper book was not sent under the said
compliance. The learned counsel for the defendant argued that there is
a total non-compliance of mandatory provision contained under Order
XXXIX Rule 3 CPC.
6. Order XXXIX Rule 3 CPC provides in unambiguous terms
that in cases where the court proposes to grant an ex parte interim
injunction in favour of a party, it shall require the applicant to comply
with the provisions contained in the said rule by delivering to the
opposite party, or to send to him by registered post, immediately after
the order granting the injunction has been made, a copy of the
CS (OS) No.284/2012 Page 3 of 10

application for injunction together with a copy of the affidavit filed in
support of the application, a copy of the plaint, and copies of
documents on which the applicant relies.
7. Order XXXIX Rule 3 CPC provides for two mandatory
conditions which have to be followed, while sending the relevant
documents and pleadings to the opposite party, i.e., (a) the pleadings
and documents have either to be delivered to the opposite party
(obviously envisaging a situation where hand delivery is effected), or
(b) the pleadings and documents have to be sent to the opposite party
by registered post.
8. It is settled law that in the event there is a non compliance
with the mandatory provisions contained in Order XXXIX Rule 3 CPC
to supply to the opposite party copy of the application for temporary
injunction, together with other relevant documents relied upon by the
applicant in support of the said application, immediately after the order
grating ex parte interim injunction is passed, the said order is liable to
be vacated, for the said provision is mandatory in nature.
9. A three Judge Bench of Supreme Court of India in Shiv
Kumar Chadha V. Municipal Corporation of Delhi and Ors., (1993)
3 SCC 161 while emphasizing upon the mandatory nature of the
provisions contained in Order XXXIX Rule 3 CPC, has held thus :
32. Power to grant injunction is an extraordinary
power vested in the Court to be exercised taking
into consideration the facts and circumstances of a
particular case. The Courts have to be more
cautious when the said power is being exercised
CS (OS) No.284/2012 Page 4 of 10

without notice or hearing the party who is to be
affected by the order so passed….
34. The imperative nature of the proviso has to be
judged in the context of Rule 3 of Order 39 of the
Code. Before the Proviso aforesaid was introduced,
Rule 3 said "the Court shall in all cases, except
where it appears that the object of granting the
injunction would be defeated by the delay, before
granting an injunction, direct notice of the
application for the same to be given to the opposite
party"….
If it is held that the compliance of the proviso
aforesaid is optional and not obligatory, then the
introduction of the proviso by the Parliament shall
be a futile exercise and that part of Rule 3 will be a
surplusage for all practical purpose. Proviso to
Rule 3 of Order 39 of the Code, attracts the
principle, that if a statute requires a thing to be done
in a particular manner, it should be done in that
manner or not all. ….”
10. Following the abovementioned law laid down by the
Supreme Court, this Court in M/s. Marbal Udyog Ltd. Vs. M/s. P & O
Indian Agencies (P) Ltd., 1995 III AD (Delhi) 812 , has held thus:
“2. Order 39 Rule 3 CPC enjoins upon the applicant
to deliver to the opposite party, or to send to him by
registered post, immediately after the order granting
the injunction has been made, a copy of the
application for injunction together with a copy of
the affidavit filed in support of the application; a
copy of the plaint; and copies of documents on
which the applicant relies and to file, on the day, on
which such injunction is granted or the day
immediately following that day, an affidavit stating
CS (OS) No.284/2012 Page 5 of 10

that the copies aforesaid have been so delivered or
sent… In the instant case, specific order was made
th
on 28 February, 1995, while granting exparte
order of injunction without notice to the opposite
party, calling upon the plaintiff to comply with the
requirements of Order 39 Rule 3 CPC and the
Court’s order, the plaintiff ought to have, within
two days of passing the order filed an affidavit in
court stating that copies of the plaint, documents
annexed with the plaint application and affidavit
have been duly served upon the defendants or sent
to them by registered post immediately after the
grant of the order of injunction, which was not
done.

3. In Shiv Kumar Chadha (Supra) Supreme Court
held that Rule 3 of Order 39 of the Code is
mandatory in character. It was observed that the
proviso to Rule 3 of Order 39 CPC attracts the
principle that if a statute requires a thing to be done
in a particular manner, it should be done in that
manner or not at all… The plaintiff till date has not
been able to satisfy the court as to the compliance
with the order and there is also no material on
record as to the compliance of Order 39 Rule 3
CPC. No affidavit has been placed on record by the
plaintiff as required under Order 39 Rule 3 CPC.
There is also no proof on record that documents
were duly sent or served on the defendants. In
these circumstances, there is no option left with the
court except to vacate the exparte order of
th
injunction dated 28 February, 1995, which is
hereby vacated.”

11. This Court in M/s. Interlink Services Pvt. Ltd. Vs. Shri
S.P. Bangera Sole Prop, 65 (1997) DLT 228, while following the
abovementioned two decisions held thus :
“45. Order 39 Rule 3 Civil Procedure Code enjoins
CS (OS) No.284/2012 Page 6 of 10

upon the applicant for injunction to deliver to the
opposite party or to send to him by registered post
immediately after the order granting ex-parte
injunction has been made, a copy of the application
for injunction together with other relevant
documents as mentioned therein on which applicant
relies and file on the date on which such injunction
is granted or on the date immediately following that
date an affidavit that such copies as aforesaid were
so delivered or sent. In Shiv Shankar Chadha Vs.
Municipal Corporation of Delhi , 1993 93) SCC
161, it was held that the compliance of this
provision is mandatory. Following this judgment
this Court in M/s. Marble Udyog Ltd. M/s. P & O
India Agency Pvt. Ltd. 1995(3)AD Delhi 812 has
held that for non compliance of this provision there
was no option left with the Court except to vacate
the ex-parte order of injunction. For this reason also
the temporary injunction is liable to be vacated….”

12. Further, this Court in AGI Logistics INC & Anr. Vs. Sher
Jang Bhadhur & Anr., 163 (2009) DLT 137 in this regard has held
thus :
“10. It is plain that the Plaintiffs, after obtaining an
ex parte ad interim injunction against the
Defendants, failed to deliver to the
Applicants/Defendants or to send them by
registered post within one week, a copy of the
application for ad interim injunction together with
(i) a copy of the affidavit filed in support of the
application (ii) a copy of the plaint and (iii) copies
of the documents on which the Plaintiffs rely upon.
The statutory requirement is unambiguous. Every
document filed by the Plaintiffs themselves, on the
basis of which they obtained an ad interim ex parte
injunction, has to necessarily be "delivered" to the
CS (OS) No.284/2012 Page 7 of 10

‟
Defendant. The word `deliver would necessarily
mean actual physical delivery on the Defendant.
The only alternative mode that the provision
envisages is dispatch by registered post,
immediately after the order granting injunction has
been made. The dispatch by registered post as again
would be of the entire set of documents as set out
under Clause (a) to the proviso to Order XXXIX
Rule 3 CPC. There can be no escape from
complying with this provision.
12. The mandatory nature of the requirement of the
provision has been emphasized by the Supreme
Court in A. Venkataubbiah naidu v. S. Chellappan
AIR 2000 SC 3032 and this Court in Himalaya
Drug v. SBL Ltd. 1996 III AD (Delhi) 853. There is
a logic behind insisting that a Plaintiff who obtain
an ex parte ad interim injunction order should, at the
earliest point in time, deliver to the party against
whom such injunction has been granted, all the
documents on the basis of which such injunction
was granted. This is to enable the opposite party to
know what the case against it is and to approach the
court at the earliest point in time to seek, if
necessary, a variation of the interim order.”
After making a reference to the decision of the Supreme
Court of India in Shiv Kumar Chadha’s case (supra) , this Court held
thus :
“14. If the Court were to take a lenient view and not
insist on strict compliance with the mandatory
requirement of Order XXIX Rule 3, then it would
be possible for most Plaintiffs to continue to enjoy
an ad interim ex parte stay in their favour for any
length of time and plead genuine mistake by their
CS (OS) No.284/2012 Page 8 of 10

counsel for non-compliance. Numerous suits
accompanied by applications seeking urgent ex
parte reliefs are filed in our courts everyday. The
court, on a perusal of the documents filed before it,
forms a prima facie view for grant of an parte ad
interim injunction against the opposite party, even
in the absence of the opposite party. The Court at
that stage has no means of knowing what the
version of the opposite party is. The court,
therefore, makes such interim order both time
bound and conditional. The condition is that there
must be compliance with Order XXXIX Rule 3
CPC within the time specified by the court.
Although Order XXXIX Rule 3(b) CPC requires
the filing of an affidavit of compliance "on the day
on which such injunction is granted or on the day
immediately following that day", this Court has
been granting a longer time accounting for the fact
that the certified copy of the order passed by the
court may not be available on the same day or even
on the next date. However, there is no question of
the Plaintiff not being required to comply with the
mandatory requirement of Order XXXIX Rule 3
CPC within the time granted by the Court. In the
considered view of this Court, a strict compliance
with the mandatory requirement of this provision
must be insisted and any laxity shown to parties
might well defeat the very purpose for which such
provision has been inserted.
15. The filing of process fee in this Court for
service of summons/notice upon Defendants, no
doubt, is another mandatory requirement of law.
However, that alone is not enough. If the Plaintiff
wants to take the benefit of an ex parte ad interim
injunction, then there is no escape from complying
CS (OS) No.284/2012 Page 9 of 10

with the mandatory requirement of Order XXXIX
Rule 3 CPC.
16. Since it is plain that the Plaintiffs have not
complied with the requirement of Order XXXIX
Rule 3 CPC, the interim order passed by this Court
on 22nd July 2009 hereby stands vacated. IA No.
9768 of 2009 is accordingly allowed.”
13. From the facts and circumstances of the case, it is clear in
the present case that the plaintiff has failed to comply with the
mandatory provisions contained in Order XXXIX Rule 3 CPC, as the
plaintiff has not sent a complete set of paper book and documents
admittedly on the basis of the record available in the matter. Therefore,
I am of the view that the order passed on 06.02.2012 is liable to be
suspended. Since no one appears on behalf of the plaintiff to argue the
interim application, being I.A. No.2222/2012, the same is dismissed.
14. Consequently, the application, being I.A. No.2846/2012, is
also disposed of.
CS(OS) No.284/2012
No one appears on behalf of the plaintiff. However, in the
interest of justice, renotify on 24.05.2012 for further consideration.


MANMOHAN SINGH, J.
MARCH 02, 2012
jk
CS (OS) No.284/2012 Page 10 of 10