M/S. JINARDI BIRI FACTORY vs M/S. DANISH ENTERPRISES
- Court
- Odisha High Court
CMP/387/2026
ODHC010151842026
2026:OHC:277
IN THE HIGH COURT OF ORISSA AT CUTTACK
CMP No.387 of 2026
CNR No.- ODHC010151842026
(In the matter of an application under Article 227 of the Constitution
of India, 1950)
M/s Jinardi Biri Factory, West
Bengal & Anr.
…. Petitioner(s)
-versus-
M/s Danish Enterprises, Sambalpur
& others
…. Opposite Party (s)
:
Advocates appeared in the case through Hybrid Mode
For Petitioner(s) : Mohammed Mustaq Ansari, Adv.
For Opposite Party (s) : None appears
CORAM:
HON’BLE DR. JUSTICE SANJEEB K PANIGRAHI
DATE OF HEARING:-01.09.2026
DATE OF JUDGMENT: -30.10.2026
Dr. Sanjeeb K Panigrahi, J.
1. The petitioners have filed the present Civil Misc Petition assailing the
legality and propriety of the order dated 06.01.2026 passed by the
learned Civil Judge (Sr Div) (Commercial Court), Sambalpur, in C.S.
No. 31 of 2025, whereby their application under Order XXVI Rule 9 and
Order XXXIX Rule 7 CPC, read with Section 151 CPC and Section 135(2)
of the Trade Marks Act, 1999, for appointment of a Local Commissioner
1
Signature Not Verified
Digitally Signed
Signed by: BHABAGRAHI JHANKAR
Designation: AR-CUM-SR. SECRETARY
Reason: Authentication
Location: ORISSA HIGH COURT, CUTTACK
Date: 06-Nov-2026 16:08:19
was rejected. The application sought inspection of the defendants’
premises and godowns and seizure of the alleged infringing goods and
connected business records. The petitioners seek setting aside of the
impugned order and consequential directions for appointment of a
Local Commissioner to undertake the measures sought in their
application.
I. F ACTUAL M ATRIX OF THE C ASE :
2. The brief facts of the case are as follows:
(i) The present CMP arises out of Civil Suit No. 31 of 2025 pending before
the Civil Judge (Senior Division) (Commercial Court), Sambalpur. The
suit was instituted on 25.09.2025 by M/s Jinardi Biri Factory and M/s
Jamil Enterprises against M/s Danish Enterprises and three others.
(ii) M/s Jinardi Biri Factory, represented by its proprietor Abdul Kadir, is
engaged in manufacturing and marketing biri and other tobacco
products, while M/s Jamil Enterprises, represented by Sayed Mukhtar
Ahmed, is described in the plaint as its authorised distributor-cum-
licensee for Odisha.
(iii) The plaint states that the first plaintiff has used the mark “SHIBA BIRI
480” since 1995 and obtained registration of the mark in 2021. The
dispute concerns the use and marketing of biri products under marks
described in the record as “SHIBA BIRI 480”, “SHIBA BIRI 488” and
“NEW SHIBA BIRI 488”, along with the trade dress and packaging
associated with those products. The plaintiffs allege that the defendants’
marks and packaging are similar to those used for their product and are
likely to cause confusion in the market. The defendants, in their
Signature Not Verified
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Digitally Signed
Signed by: BHABAGRAHI JHANKAR
Designation: AR-CUM-SR. SECRETARY
Reason: Authentication
Location: ORISSA HIGH COURT, CUTTACK
Date: 06-Nov-2026 16:08:19
objection to the application for temporary injunction, disputed the
alleged similarity and maintained that the prefix “New”, the numeral
“488” and other features distinguished their products. They also
questioned the scope of the plaintiffs’ registration and referred to
pending label applications before the Registrar of Trade Marks.
(iv) The plaint traces the dispute to a decline in the second plaintiff’s sales
from the middle of 2024 and to information allegedly obtained in 2025
concerning the defendants’ products. Before filing the suit, the second
plaintiff approached the first defendant and also made representations
to the police and the Commercial Tax and GST authorities.
(v) The plaint refers to the interception of a vehicle carrying the disputed
products on 21.08.2025, the institution of ICC Case No. 21 of 2025 before
the SDJM, Sambalpur, and an order dated 03.09.2025 directing
registration and investigation of the complaint.
(vi) In the commercial suit, the plaintiffs seek permanent and mandatory
injunctions, reliefs for alleged infringement and passing off, delivery of
the disputed goods, rendition of accounts, damages of ₹ 25 lakh and
other consequential reliefs. Along with the suit, the plaintiffs filed I.A.
No. 1 of 2025 under Order XXXIX Rules 1 and 2 CPC. By order dated
10.11.2025, the Commercial Court allowed the application in part.
(vii) For the duration of the suit, it restrained the defendants and persons
acting through them from dealing in goods bearing the marks “SHIBA
BIRI 480”, “SHIBA BIRI 488”, “NEW SHIBA BIRI 488”, or any mark
identical or deceptively similar to the plaintiffs’ registered word mark
“SHIBA BIRI 480”. The defendants were also directed to maintain
Signature Not Verified
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Digitally Signed
Signed by: BHABAGRAHI JHANKAR
Designation: AR-CUM-SR. SECRETARY
Reason: Authentication
Location: ORISSA HIGH COURT, CUTTACK
Date: 06-Nov-2026 16:08:19
accounts of the stock and sales of the disputed goods and to produce
them when required. At that stage, the Court declined to grant separate
protection in respect of copyright because no certificate or other proof of
copyright registration had been produced.
(viii) On 01.12.2025, the plaintiffs filed an application under Order XXXIX
Rule 2-A CPC alleging breach of the interim injunction. The defendants
denied the allegation and, in turn, applied under Order XXXIX Rule 4
CPC for vacation, variation or clarification of the injunction. By order
dated 02.01.2026, the Commercial Court rejected the plaintiffs’
application under Order XXXIX Rule 2-A. By a separate order dated
05.01.2026, the Court also rejected the defendants’ application under
Order XXXIX Rule 4, holding that no change in circumstances or undue
hardship warranting alteration of the injunction had been shown.
(ix) At the time of instituting the suit, the plaintiffs had also applied under
Order XXVI Rule 9 and Order XXXIX Rule 7 CPC, read with Section 151
CPC and Section 135(2) of the Trade Marks Act, 1999, for appointment
of a Local Commissioner. The application sought inspection of the
defendants’ premises and godowns, including premises identified by
the plaintiffs within and outside Sambalpur; seizure of the disputed
goods, packaging material and business records; authority to open locks
and obtain police assistance if required; videography and photography
of the exercise; permission for a representative of the plaintiffs to
accompany the Commissioner; and delivery of the seized goods to the
plaintiffs subject to an undertaking. The application was treated as
ancillary to the suit and was not separately registered as an
Signature Not Verified
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Digitally Signed
Signed by: BHABAGRAHI JHANKAR
Designation: AR-CUM-SR. SECRETARY
Reason: Authentication
Location: ORISSA HIGH COURT, CUTTACK
Date: 06-Nov-2026 16:08:19
interlocutory application. The order dated 06.01.2026 records that the
defendants neither filed a written objection nor advanced an oral
objection to it.
(x) By the said order dated 06.01.2026, the Commercial Court declined to
appoint a Local Commissioner. The present CMP challenges that order
and seeks its setting aside and the appointment of a Local
Commissioner.
II. SUBMISSIONS ON BEHALF OF THE PETITIONER:
3.
Learned counsel for the Petitioner earnestly made the following
submissions in support of his contentions:
(i) Learned counsel for the Petitioners submits that the order dated
06.01.2026 warrants interference because the learned Commercial Court
did not consider the nature and purpose of the application for
appointment of a Local Commissioner.
(ii) It is submitted that the underlying suit seeks not only an injunction
against the use of the disputed marks but also delivery of the alleged
infringing goods, rendition of accounts and damages. The goods,
packaging materials, stock records and accounts relevant to these reliefs
are stated to be located at premises under the control of the Defendants
and cannot ordinarily be inspected or preserved by the Petitioners
themselves.
(iii) It is submitted that, while deciding I.A. No. 1 of 2025 on 10.11.2025, the
Commercial Court had already found a prima facie case in favour of the
Plaintiffs and restrained the Defendants from dealing in goods bearing
Signature Not Verified
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Digitally Signed
Signed by: BHABAGRAHI JHANKAR
Designation: AR-CUM-SR. SECRETARY
Reason: Authentication
Location: ORISSA HIGH COURT, CUTTACK
Date: 06-Nov-2026 16:08:19
the marks “SHIBA BIRI 480”, “SHIBA BIRI 488”, “NEW SHIBA BIRI
488”, or any other identical or deceptively similar mark. The Defendants
were also directed to preserve accounts of their stock and sales.
(iv) According to the petitioners, their application filed along with the suit
stated that they had learnt from the trade and market that substantial
quantities of the disputed goods were stocked at the defendants’
premises and godowns. They apprehended removal of those goods and
tampering with the connected records upon service of notice of the
injunction application.
(v) Learned counsel further submits that the Commercial Court conflated
the application for appointment of a Commissioner with the earlier
proceeding under Order XXXIX Rule 2-A CPC. The application under
Rule 2-A concerned an allegation of past disobedience of the injunction
and the imposition of penal consequences, whereas the application for a
commission sought inspection, preservation and documentation of
material situated at the Defendants’ premises. The failure to establish
wilful disobedience by the standard applicable to proceedings under
Rule 2-A, it is argued, could not by itself determine whether a local
inspection was required.
(vi) The CMP petition also records that the order rejecting the Rule 2-A
application has been challenged in FAO No. 2 of 2026 before the District
Judge, Sambalpur.
(vii) It is contended that the application had been made under Order XXVI
Rule 9 and Order XXXIX Rule 7 CPC, read with Section 75 and Section
151 CPC and Section 135(2) of the Trade Marks Act, 1999. These
Signature Not Verified
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Digitally Signed
Signed by: BHABAGRAHI JHANKAR
Designation: AR-CUM-SR. SECRETARY
Reason: Authentication
Location: ORISSA HIGH COURT, CUTTACK
Date: 06-Nov-2026 16:08:19
provisions, according to the Petitioners, empower the Court to direct a
local investigation where it would elucidate a matter in dispute and to
order the inspection, detention or preservation of the subject matter of
the suit.
(viii) The Commissioner was proposed to be authorised to inspect the
identified premises, prepare an inventory, take custody of the disputed
goods and relevant records, photograph and videograph the exercise
and obtain police assistance where required. It is submitted that these
directions were sought to preserve the subject matter and place an
objective account of the existing position before the Court.
(ix) Learned counsel disputes the finding that the proposed commission
would amount to collection of evidence on behalf of the Petitioners. He
submits that the object of the application was to obtain evidence which,
because of its location and nature, could be ascertained only through an
inspection at the spot.
(x) It is contended that appointment of a Commissioner would neither
establish infringement by itself nor relieve the Plaintiffs of their
obligation to prove their case at trial. The Commissioner’s report and
the materials collected during the exercise would remain subject to the
scrutiny of the Court and to such objections as may be raised by the
parties.
(xi) Reliance is placed on Bijaylal Mohanta and Another v. Khiramani
1
Mohanta and Others , for the proposition that a commission may be
issued to obtain evidence which, by its peculiar nature, can be obtained
1
2015 (I) OLR 718
Signature Not Verified
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Digitally Signed
Signed by: BHABAGRAHI JHANKAR
Designation: AR-CUM-SR. SECRETARY
Reason: Authentication
Location: ORISSA HIGH COURT, CUTTACK
Date: 06-Nov-2026 16:08:19
only at the spot and to elucidate a matter that cannot otherwise be
satisfactorily resolved. Learned counsel also relies on Savitri Devi and
Others v. Prasanna Kumari Devi @ Dibya @ Pramodini (Dead) and
2
Others , to distinguish an inspection under Order XXXIX Rule 7 CPC
from a local investigation under Order XXVI Rule 9 CPC and to submit
that an inspection should not be refused merely by characterising it as
an attempt to collect evidence.
(xii) It is further submitted that the subsisting injunction and the proposed
commission serve different purposes. The injunction regulates the
Defendants’ future conduct, whereas the commission was sought to
ascertain, document and preserve the goods and records allegedly
already in existence. The impugned order therefore could not rest solely
on the view that the Petitioners’ interests stood sufficiently protected by
the injunction. Learned counsel also points out that, as recorded in the
impugned order, the Defendants had neither filed a written objection
nor advanced an oral objection to the application for appointment of a
Commissioner.
(xiii) On these grounds, learned counsel prays that the order dated 06.01.2026
be set aside and that appropriate directions be issued for appointment
of a Local Commissioner to undertake the inspection and other
measures sought in the application, subject to such safeguards as this
Court may consider necessary.
2
1992 (II) OLR 14
Signature Not Verified
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Digitally Signed
Signed by: BHABAGRAHI JHANKAR
Designation: AR-CUM-SR. SECRETARY
Reason: Authentication
Location: ORISSA HIGH COURT, CUTTACK
Date: 06-Nov-2026 16:08:19
III. SUBMISSIONS ON BEHALF OF THE OPPOSITE PARTIES:
4. Despite service of notice, none appeared on behalf of the Opposite
Parties when the matter was taken up by this Court. By orders dated
14.08.2026 and 21.08.2026, further opportunities were granted to them to
enter appearance. When they remained unrepresented on 27.08.2026,
this Court directed that the proceeding would continue ex parte .
5. No counter-affidavit, written note of submissions or oral argument has
been placed before this Court on their behalf. Consequently, no
submission has been advanced by the Opposite Parties specifically in
support of the order impugned in the present CMP.
6. The position is similar in respect of the application for appointment of a
Local Commissioner before the Commercial Court. The impugned order
dated 06.01.2026 expressly records that the Defendants neither filed a
written objection nor advanced any oral objection to that application.
7.
The reasons for declining the commission were recorded by the
Commercial Court upon its independent scrutiny of the application and
cannot be attributed to the Defendants as their contentions.
8. However, for the sake of completeness of rival arguments, the record
discloses that the Defendants had contested the Plaintiffs’ application
for temporary injunction and had subsequently applied under Order
XXXIX Rule 4 CPC for vacation, variation or clarification of the
injunction dated 10.11.2025. In those connected proceedings, they
maintained that the marks used for their products were distinct from
the Plaintiffs’ mark by reason of the prefix, numerals and other visual
and structural features. They also questioned the scope of the Plaintiffs’
Signature Not Verified
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Digitally Signed
Signed by: BHABAGRAHI JHANKAR
Designation: AR-CUM-SR. SECRETARY
Reason: Authentication
Location: ORISSA HIGH COURT, CUTTACK
Date: 06-Nov-2026 16:08:19
registration, referring particularly to the status of the label application
under Class 34, and denied that their products were likely to cause
confusion or deception among consumers. They sought permission to
continue their business without infringing any legally protected right of
the Plaintiffs.
9. The Defendants had also opposed the Plaintiffs’ application under
Order XXXIX Rule 2-A CPC. They denied having violated the interim
injunction and contended that the allegations of disobedience were
vague and unsupported by legally admissible evidence. These positions
were taken in relation to the grant, modification and alleged breach of
the interim injunction. They were not presented as objections to the
application for appointment of a Local Commissioner and do not
constitute submissions made by the Opposite Parties in the present
proceeding.
IV. THE OBSERVATION OF THE COMMERCIAL COURT:
10.
The question before the learned Civil Judge (Senior Division)
(Commercial Court), Sambalpur, was whether the circumstances of
Civil Suit No. 31 of 2025 warranted appointment of a Local
Commissioner to inspect the Defendants’ premises and seize the goods
bearing the disputed trademarks, together with the related business
records. The Court was required to consider whether the apprehended
removal or disposal of those goods justified the proposed commission
and whether such assistance was necessary for effective adjudication of
the dispute.
Signature Not Verified
10
Digitally Signed
Signed by: BHABAGRAHI JHANKAR
Designation: AR-CUM-SR. SECRETARY
Reason: Authentication
Location: ORISSA HIGH COURT, CUTTACK
Date: 06-Nov-2026 16:08:19
11. In examining the application, the Commercial Court considered the
Plaintiffs’ assertion that the Defendants held a substantial stock of the
disputed goods and might remove or dispose of it after receiving notice
of the injunction application and the order passed thereon. It noted the
scope of the relief sought, including inspection and seizure, opening of
locks where necessary, police assistance, seizure of account books,
photography and videography, and delivery of the seized goods to the
Plaintiffs against an undertaking.
12.
The Court also took into account the subsisting interim injunction and
the earlier rejection of the Plaintiffs’ application alleging its violation.
Although the Defendants had neither filed a written objection nor
advanced an oral objection, the Court observed that the application
nevertheless required scrutiny in accordance with law and the
circumstances of the case.
13.
On the factual basis for the proposed commission, the Commercial
Court found that no material had been placed on record to substantiate
the assertion concerning the existence of a substantial stock or the
apprehension of its removal or disposal. It further noted that the earlier
application alleging breach of the interim injunction had been rejected
for want of evidence establishing such breach. In these circumstances, it
characterised the apprehension regarding removal or disposal of the
disputed goods as speculative.
14. The Commercial Court next considered the protection already available
under the interim injunction. It observed that the injunction restrained
the Defendants from using the disputed trademark and sufficiently
Signature Not Verified
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Digitally Signed
Signed by: BHABAGRAHI JHANKAR
Designation: AR-CUM-SR. SECRETARY
Reason: Authentication
Location: ORISSA HIGH COURT, CUTTACK
Date: 06-Nov-2026 16:08:19
protected the Plaintiffs’ interests. The Court accordingly did not regard
the apprehension expressed in the application, without supporting
material, as establishing a need for the additional measures sought
through a commission.
15. As to the scope of the power under Order XXVI Rule 9 CPC, the
Commercial Court observed that a Local Commissioner could not be
appointed as a matter of course and that such appointment was
warranted when the Court itself required assistance for effective
adjudication. It further stated that a Commissioner could not be
appointed to collect evidence on behalf of a party and that the power
was to be exercised only in exceptional circumstances. Applying that
approach, it found that no compelling circumstance, such as imminent
destruction of evidence or continued violation of the injunction, had
been demonstrated.
16.
On these findings, the Commercial Court concluded that the necessity
for appointment of a Local Commissioner had not been established. It
therefore rejected the application by order dated 6 January 2026, which
is impugned in the present CMP.
V. THIS COURT’S REASONING AND ANALYSIS:
17. Heard learned counsel for the Petitioners and perused the documents
placed before this Court. Despite opportunities afforded, none appeared
on behalf of the opposite parties, and the matter has accordingly been
considered in their absence.
18. The question requiring determination is whether the order dated
06.01.2026 passed by the learned Civil Judge (Sr Division), Commercial
Signature Not Verified
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Digitally Signed
Signed by: BHABAGRAHI JHANKAR
Designation: AR-CUM-SR. SECRETARY
Reason: Authentication
Location: ORISSA HIGH COURT, CUTTACK
Date: 06-Nov-2026 16:08:19
Court, Sambalpur, refusing appointment of a Local Commissioner in
Civil Suit No. 31 of 2025, warrants interference under Article 227 of the
Constitution.
19.
The order under challenge is interlocutory in nature. Section 8 of the
Commercial Courts Act, 2015 expressly bars a civil revision application
or petition against an interlocutory order of a Commercial Court and
provides that, subject to Section 13, any such challenge shall be raised
only in an appeal against the decree. Neither an order refusing a
commission under Order XXVI Rule 9 nor an order declining inspection
under Order XXXIX Rule 7 CPC falls within the appealable orders
enumerated in Order XLIII Rule 1 CPC.
20. The legislative scheme thus restricts piecemeal statutory challenges to
interlocutory orders, reserving objections to non-appealable orders for
consideration in an appeal against the decree. This approach accords
with the object of expeditious resolution of commercial disputes noticed
by the Supreme Court in Jaycee Housing (P) Ltd. v. Registrar (General),
3
Orissa High Court . That object must inform the consideration of the
present challenge, without excluding the constitutional jurisdiction of
this Court. The relevant excerpt is produced hereinbelow:
“ That thereafter, the Commercial Courts, Commercial Division
and Commercial Appellate Division of High Courts Act, 2015
was passed by the Parliament, which has been subsequently
re-named as Commercial Courts Act, 2015.
The statements of Objects and Reasons of the said Act, inter alia,
provides as under:
3
(2023) 1 SCC 549
Signature Not Verified
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Digitally Signed
Signed by: BHABAGRAHI JHANKAR
Designation: AR-CUM-SR. SECRETARY
Reason: Authentication
Location: ORISSA HIGH COURT, CUTTACK
Date: 06-Nov-2026 16:08:19
“The proposal to provide for speedy disposal of high value
commercial disputes has been under consideration of the
Government for quite some time. The high value
commercial disputes involve complex facts and question of
law. Therefore, there is a need to provide for an independent
mechanism for their early resolution. Early resolution of
commercial disputes shall create a positive image to the
investor world about the independent and responsive Indian
legal system .”
4
21.
In Radhey Shyam v. Chhabi Nath , the Supreme Court distinguished
the supervisory jurisdiction under Article 227 from the writ jurisdiction
under Article 226 and clarified that curtailment of statutory revisional
jurisdiction does not enlarge the power of superintendence. The
relevant excerpt is produced hereinbelow:
“26. The Bench in Surya Dev Rai also observed in para 25 of its
judgment that distinction between Articles 226 and 227 stood
almost obliterated. In para 24 of the said judgment distinction in
the two articles has been noted. In view thereof, observation that
scope of Article 226 and 227 was obliterated was not correct as
rightly observed by the referring Bench in Para 32 quoted above.
We make it clear that though despite the curtailment of revisional
jurisdiction under Section 115 CPC by Act 46 of 1999,
jurisdiction of the High Court under Article 227 remains
unaffected, it has been wrongly assumed in certain quarters that
the said jurisdiction has been expanded. Scope of Article 227 has
been explained in several decisions including Waryam Singh and
another vs. Amarnath and another, Ouseph Mathai vs. M. Abdul
Khadir, Shalini Shyam Shetty vs. Rajendra Shankar Patil and
Sameer Suresh Gupta vs. Rahul Kumar Agarwal[14]. In Shalini
Shyam Shetty, this Court observed:
4
(2015) 5 SCC 423
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Digitally Signed
Signed by: BHABAGRAHI JHANKAR
Designation: AR-CUM-SR. SECRETARY
Reason: Authentication
Location: ORISSA HIGH COURT, CUTTACK
Date: 06-Nov-2026 16:08:19
“64. However, this Court unfortunately discerns that of late
there is a growing trend amongst several High Courts to
entertain writ petition in cases of pure property disputes.
Disputes relating to partition suits, matters relating to
execution of a decree, in cases of dispute between landlord
and tenant and also in a case of money decree and in
various other cases where disputed questions of property are
involved, writ courts are entertaining such disputes. In
some cases the High Courts, in a routine manner, entertain
petitions under Article 227 over such disputes and such
petitions are treated as writ petitions.
65. We would like to make it clear that in view of the law
referred to above in cases of property rights and in disputes
between private individuals writ court should not interfere
unless there is any infraction of statute or it can be shown
that a private individual is acting in collusion with a
statutory authority.
66. We may also observe that in some High Courts there is a
tendency of entertaining petitions under Article 227 of the
Constitution by terming them as writ petitions. This is
sought to be justified on an erroneous appreciation of the
ratio in Surya Dev and in view of the recent amendment to
Section 115 of the Civil Procedure Code by the Civil
Procedure Code (Amendment) Act, 1999. It is urged that as
a result of the amendment, scope of Section 115 CPC has
been curtailed. In our view, even if the scope of Section 115
CPC is curtailed that has not resulted in expanding the
High Court's power of superintendence. It is too well
known to be reiterated that in exercising its jurisdiction,
High Court must follow the regime of law.
67. As a result of frequent interference by the Hon'ble High
Court either under Article 226 or 227 of the Constitution
with pending civil and at times criminal cases, the disposal
of cases by the civil and criminal courts gets further
impeded and thus causing serious problems in the
administration of justice. This Court hopes and trusts that
in exercising its power either under Article 226 or 227, the
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Digitally Signed
Signed by: BHABAGRAHI JHANKAR
Designation: AR-CUM-SR. SECRETARY
Reason: Authentication
Location: ORISSA HIGH COURT, CUTTACK
Date: 06-Nov-2026 16:08:19
Hon'ble High Court will follow the time honoured
principles discussed above. Those principles have been
formulated by this Court for ends of justice and the High
Courts as the highest courts of justice within their
jurisdiction will adhere to them strictly."
27. Thus, we are of the view that judicial orders of civil courts are
not amenable to a writ of certiorari under Article 226. We are
also in agreement with the view of the referring Bench that a writ
of mandamus does not lie against a private person not
discharging any public duty. Scope of Article 227 is different
from Article 226.
28. We may also deal with the submission made on behalf of the
respondent that the view in Surya Dev Rai stands approved by
larger Benches in Shail, Mahendra Saree Emporium and Salem
Advocate Bar Assn and on that ground correctness of the said
view cannot be gone into by this Bench. In Shail, though
reference has been made to Surya Dev Rai, the same is only for
the purpose of scope of power under Article 227 as is clear from
para 3 of the said judgment. There is no discussion on the issue of
maintainability of a petition under Article 226. In Mahendra
Saree Emporium, reference to Surya Dev Rai is made in para 9 of
the judgment only for the proposition that no subordinate
legislation can whittle down the jurisdiction conferred by the
Constitution. Similarly, in Salem Bar Assn. in para 40, reference
to Surya Dev Rai is for the same purpose. We are, thus, unable to
accept the submission of learned counsel for the respondent.
29. Accordingly, we answer the question referred as follows:
(i) Judicial orders of civil court are not amenable to writ
jurisdiction under Article 226 of the Constitution;
(ii) Jurisdiction under Article 227 is distinct from jurisdiction
from jurisdiction under Article 226. ”
Signature Not Verified
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Digitally Signed
Signed by: BHABAGRAHI JHANKAR
Designation: AR-CUM-SR. SECRETARY
Reason: Authentication
Location: ORISSA HIGH COURT, CUTTACK
Date: 06-Nov-2026 16:08:19
5
22. Likewise, in Shalini Shyam Shetty v. Rajendra Shankar Patil , the
Supreme Court explained that, although Article 227 cannot be curtailed
by statute, it cannot be invoked merely to correct ordinary errors of fact
or law or substitute another possible view. The present petition must
consequently be examined within the limits of supervisory jurisdiction.
“49. On an analysis of the aforesaid decisions of this Court, the
following principles on the exercise of High Court's jurisdiction
under Article 227 of the Constitution may be formulated:
…
(h) In exercise of its power of superintendence High Court
cannot interfere to correct mere errors of law or fact or just
because another view than the one taken by the tribunals or
Courts subordinate to it, is a possible view. In other words the
jurisdiction has to be very sparingly exercised.
(i) High Court's power of superintendence under Article 227
cannot be curtailed by any statute. It has been declared a part of
the basic structure of the Constitution by the Constitution Bench
of this Court in the case of L. Chandra Kumar vs. Union of India
& others, reported in (1997) 3 SCC 261 and therefore
abridgement by a Constitutional amendment is also very
doubtful.
(j) It may be true that a statutory amendment of a rather cognate
provision, like Section 115 of the Civil Procedure Code by the
Civil Procedure Code (Amendment) Act, 1999 does not and
cannot cut down the ambit of High Court's power under Article
227. At the same time, it must be remembered that such
statutory amendment does not correspondingly expand the High
Court's jurisdiction of superintendence under Article 227. ”
5
(2010) 8 SCC 329
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Digitally Signed
Signed by: BHABAGRAHI JHANKAR
Designation: AR-CUM-SR. SECRETARY
Reason: Authentication
Location: ORISSA HIGH COURT, CUTTACK
Date: 06-Nov-2026 16:08:19
6
23. Those limits were reiterated in Garment Craft v. Prakash Chand Goel ,
where it was elucidated that the High Court does not act as a court of
first appeal to reappreciate the material or replace the subordinate
court’s factual conclusions with its own. Interference is warranted
where the order discloses a grave dereliction of duty or flagrant abuse,
violation of fundamental principles of law or justice. The relevant para
is produced hereinbelow:
“ 15. Having heard the counsel for the parties, we are clearly of
the view that the impugned order is contrary to law and cannot
be sustained for several reasons, but primarily for deviation from
the limited jurisdiction exercised by the High Court under
Article 227 of the Constitution of India. The High Court
exercising supervisory jurisdiction does not act as a court of first
appeal to reappreciate, reweigh the evidence or facts upon which
the determination under challenge is based. Supervisory
jurisdiction is not to correct every error of fact or even a legal
flaw when the final finding is justified or can be supported. The
High Court is not to substitute its own decision on facts and
conclusion, for that of the inferior court or tribunal.1 The
jurisdiction exercised is in the nature of correctional jurisdiction
to set right grave dereliction of duty or flagrant abuse, 1Celina
Coelho Pereira (Ms) and Others v. Ulhas Mahabaleshwar
Kholkar and Others, (2010) 1 SCC violation of fundamental
principles of law or justice. The power under Article 227 is
exercised sparingly in appropriate cases, like when there is no
evidence at all to justify, or the finding is so perverse that no
reasonable person can possibly come to such a conclusion that the
court or tribunal has come to. It is axiomatic that such
discretionary relief must be exercised to ensure there is no
miscarriage of justice . ”
6
(2022) 4 SCC 181
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24. Therein, the Supreme Court also clarified that supervisory jurisdiction
is not exercised to correct every factual error or legal flaw where the
ultimate conclusion remains supportable. The inquiry, therefore, is
whether the refusal of the application suffers from an infirmity of that
character, rather than whether this Court might independently have
considered some form of inspection appropriate.
25. Now, the application must nevertheless be considered under the
provisions actually invoked. Order XXVI Rule 9 CPC permits local
investigation where the Court considers it requisite or proper to
elucidate a matter in dispute or ascertain, among other matters, mesne
profits or damages.
26. Order XXXIX Rule 7 CPC separately authorises detention, preservation
or inspection of relevant property and entry into premises for those
purposes. Section 135(2)(b) of the Trade Marks Act, 1999 expressly
contemplates interlocutory orders preserving infringing goods,
documents and other evidence related to the subject matter of the suit.
The Commercial Court was therefore required to examine the purpose
and factual basis of the proposed measures under these provisions. The
application could not be disposed of solely by invoking a general
proposition that a Commissioner cannot collect evidence for a party.
27.
The distinction is illustrated by Committee of Management, Anjuman
7
Intezamia Masajid, Varanasi v. Rakhi Singh. While considering a
scientific investigation under Order XXVI Rule 10A CPC, the Supreme
Court explained that a Commissioner’s report and the evidence taken
7
2023 SCC OnLine SC 980
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by the Commissioner form part of the record, subject to objections,
examination of the Commissioner and scrutiny during trial. The report
does not, by itself, constitute a substantive determination of the
disputed rights. The Court also recognised the trial court’s discretion to
direct an investigation, subject to appropriate safeguards. Although that
case concerned a scientific survey, its explanation of the evidentiary
function of a commission is relevant here. The circumstance that an
investigation produces evidence cannot, by itself, render the exercise
impermissible.
28.
The observation concerning collection of evidence in the impugned
order must accordingly be qualified. Where inspection or preservation
falls within the applicable statutory provisions, the Court must examine
whether the proposed exercise would serve a legitimate adjudicatory or
preservative purpose and whether the material justifies its scope. At the
same time, the existence of the statutory power does not make its
exercise automatic. The applicant must disclose a sufficient basis for the
particular intervention requested, and the Court must consider its likely
effect upon the possession, property and business operations of the
affected party.
29. In the present case, the application sought substantially more than
inspection and preparation of a report. It contemplated seizure of
goods, packaging and business records, breaking open locks where
necessary, police assistance, photography and videography,
participation of the petitioners’ representative and delivery of seized
goods to the petitioners upon an undertaking. It also extended to
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additional premises identified by the petitioners. The petitioners were
not required to establish the exact quantity of goods beforehand or
await actual destruction of evidence. Nevertheless, measures of the
breadth sought required sufficiently specific particulars or material
enabling the Court to assess their necessity and extent. The petitioners’
inability to enter the opposite parties’ premises privately could not,
standing alone, justify the entire range of relief claimed.
30. The Commercial Court recorded a distinct finding that the assertion
concerning substantial stocks of the disputed goods and the
apprehension of their removal were unsupported by material. That
finding addressed the factual foundation of the application. The prima
facie assessment underlying the injunction dated 10.11.2025 did not
necessarily establish the existence or location of the stocks referred to in
the commission application.
31.
Similarly, material concerning resemblance between the rival marks or
packaging did not, without further consideration, establish the necessity
of entering premises and seizing goods and records. The deficiency
identified by the Commercial Court was therefore not merely the
absence of precise stock figures, but the absence of sufficient material
supporting the particular intervention requested. No basis has been
demonstrated for treating that assessment as perverse within the limits
of Article 227.
32. The subsisting injunction was also relevant, though its existence could
not furnish a complete answer to the application. Restraining future
conduct and preserving material for adjudication serve different
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purposes. An injunction against use of the disputed marks does not
necessarily remove the need for a preservation order. In the present
case, however, the order dated 10.11.2025 additionally required the
opposite parties to maintain and preserve complete accounts of stock
and sales and produce them when directed.
33. That direction did not preserve the goods themselves, but afforded
protection relevant to the petitioners’ concern regarding ascertainment
of damages or profits. The Commercial Court was entitled to consider
that protection while examining whether additional measures had been
justified. The injunction did not automatically confer an entitlement to a
commission with the powers sought.
34. The reliance upon rejection of the application under Order XXXIX Rule
2A CPC requires a further clarification. In Food Corporation of India v.
8
Sukh Deo Prasad , , the Supreme Court emphasised that exercise of the
punitive power under that provision requires clear establishment of the
obligation imposed by the injunction and its breach. An application
seeking inspection or preservation raises a different question:
“The power exercised by a court under order 39, Rule 2A of the
Code is punitive in nature, akin to the power to punish for civil
contempt under the Contempt of Courts Act, 1971. The person
who complains of disobedience or breach has to clearly make out
beyond any doubt that there was an injunction or order directing
the person against whom the application is made, to do or desist
from doing some specific thing or act and that there was
disobedience or breach of such order. While considering an
application under order 39 Rule 2A, the court cannot construe
the order in regard to which disobedience/breach is alleged, as
8
(2009) 5 SCC 665
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creating an obligation to do something which is not mentioned in
the `order', on surmises suspicions and inferences. The power
under Rule 2A should be exercised with great caution and
responsibility… .”
35. Failure to establish disobedience from the photographs and videos
relied upon does not establish that no disputed goods exist or exclude
otherwise justified protective relief. Moreover, the commission
application had been filed at the institution of the suit and did not
originate merely from the subsequent allegation of breach. Rejection of
the Rule 2A application by order dated 02.01.2026 could therefore not,
merely by reason of that rejection, operate as a legal bar to consideration
of the commission application. The correctness of that separate order
does not arise for determination in the present CMP.
36. These qualifications do not, however, require the impugned order to be
set aside. Apart from its observations concerning collection of evidence
and rejection of the application under Order XXXIX Rule 2A CPC, the
Commercial Court separately recorded that the assertion concerning
substantial stocks of the disputed goods and the apprehension of their
removal were unsupported by material. The significance of that finding
lies in the extensive measures sought, including entry into premises,
seizure of goods and business records, breaking open locks and police
assistance. The deficiency was not the failure to establish the precise
quantity of stock, prove an actual breach of the injunction or
demonstrate that destruction of evidence had already occurred. It was
the absence of sufficient supporting material for the circumstances
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relied upon to justify those measures. Although the statutory powers of
inspection and preservation ought to have been expressly considered,
the omission to discuss them separately does not, in the circumstances
of this case, displace that independently recorded factual assessment.
37. The petitioners have not demonstrated that the Commercial Court
overlooked material bearing upon the necessity of the measures sought
or reached a conclusion contrary to the record. In the absence of such an
infirmity, interference would amount to substituting this Court’s
assessment of the sufficiency of the material for that of the Commercial
Court, contrary to the principle in Garment Craft (supra). The
possibility that a more limited inspection might have been considered
does not, by itself, establish a jurisdictional error or patent perversity
warranting interference under Article 227. The conclusion is confined to
the application as framed and the material placed in its support; it does
not endorse a general prohibition against inspection or preservation of
evidence in an intellectual-property dispute.
38. Nor does the absence of an objection to the application, or the opposite
parties’ non-appearance before this Court, compel its acceptance. In
9
Balraj Taneja v. Sunil Madan , the Supreme Court held that a court
cannot mechanically grant relief merely because the defendant has
failed to file a written statement; it must independently satisfy itself that
the facts justify the relief claimed. The relevant excerpt is produced
hereinbelow:
9
(1999) 8 SCC 396
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“29. As pointed out earlier, the Court has not to act blindly upon
the admission of a fact made by the defendant in his Written
Statement nor the Court should proceed to pass judgment blindly
merely because a Written Statement has not been filed by the
defendant traversing the facts set out by the plaintiff in the plaint
filed in the Court. In a case, specially where a Written Statement
has not been filed by the defendant, the Court should be a little
cautious in proceeding under Order 8 Rule 10 CPC. Before
passing the judgment against the defendant it must see to it that
even if the facts set out in the plaint are treated to have been
admitted, a judgment could possibly be passed in favour of the
plaintiff without requiring him to prove any fact mentioned in
the plaint. It is a matter of Court's satisfaction and, therefore,
only on being satisfied that there is no fact which need be proved
on account of deemed admission, the Court can conveniently pass
a judgment against the defendant who has not filed the Written
Statement. But if the plaint itself indicates that there are disputed
questions of fact involved in the case regarding which two
different versions are set out in the plaint itself, it would not be
safe for the Court to pass a judgment without requiring the
plaintiff to prove the facts so as to settle the factual controversy.
Such a case would be covered by the expression ‘the Court may,
in its discretion, require any such fact to be proved’ used in sub-
rule (2) of Rule 5 of Order 8, or the expression ‘may make such
order in relation to the suit as it thinks fit’ used in Rule 10 of
Order 8.”
39. Although that abovementioned judgment arose under Order VIII Rule
10 CPC, the underlying requirement of judicial satisfaction applies here
as well. The absence of opposition does not dispense with scrutiny of
the necessity and permissible extent of an order authorising entry,
seizure and police assistance. The present petition has accordingly been
examined on its merits notwithstanding the opposite parties’ absence.
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40. The refusal of the present application does not determine the
petitioners’ substantive claims or foreclose protective relief upon a
10
materially different factual basis. In Arjun Singh v. Mohindra Kumar ,
the Supreme Court distinguished different classes of interlocutory
orders and explained that protective orders may be reconsidered upon
new facts or situations subsequently emerging, while repetitive
applications on an unchanged basis may be rejected. The relevant
paragraph is produced hereinbelow:
“ 13. It is needless to point out that interlocutory orders are of
various kinds; some like orders of stay, injunction or receiver are
designed to preserve the status quo pending the litigation and to
ensure that the parties might not be prejudiced by the normal
delay which the proceedings before the court usually take. They
do not, in that sense, decide in any manner the merits of the
controversy in issue in the suit and do not, of course, put an end
to it even in part. Such orders are certainly, capable of being
altered or varied by subsequent applications for the same relief,
though normally only on proof of new facts or new situations
which subsequently emerge. As they do not impinge upon the
legal rights of parties to the litigation the principle of res judicata
does not apply to the findings on which these orders are based,
though if applications were made for relief on the same basis after
the same has once been disposed of the Court would be justified
in rejecting the same as an abuse of the process of Court. There
are other orders which are also interlocutory, but would fall into
a different category. The difference from the ones just now
referred to lies in the fact that they are not directed to
maintaining the status quo, or to preserve the property pending
the final adjudication; but are designed to ensure the just,
smooth, orderly and expeditious disposal of the suit. They are
10
AIR 1964 SC 993
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interlocutory in the sense that they do not decide any matter in
issue arising in the suit, not put an end to the litigation. ”
41.
Accordingly, if subsequent material or materially changed
circumstances furnish specific grounds for inspection or preservation at
identified premises, it shall be open to the petitioners to seek suitably
confined directions before the Commercial Court. This liberty does not
authorise repetition of the same application on an unchanged factual
basis.
42.
Any such application shall be considered independently under the
applicable provisions, including Section 135(2) of the Trade Marks Act
and Order XXXIX Rule 7 CPC, with Order XXVI Rule 9 CPC applied
where appropriate. The inquiry shall concern the connection of the
material sought to the dispute, the necessity and extent of the proposed
intervention, and appropriate safeguards concerning entry, records and
custody of goods. The application shall not be rejected upon an
understanding that preservation of evidence is categorically
impermissible or that failure to establish disobedience necessarily
excludes protective relief.
VI. CONCLUSION:
43. For the foregoing reasons, no interference with the order dated
06.01.2026 is warranted in exercise of jurisdiction under Article 227 of
the Constitution.
44. The Civil Misc Petition is dismissed , subject to the clarifications
recorded above.
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45. Nothing stated herein shall be construed as a final expression on the
parties’ competing rights in the disputed marks or packaging, or on the
claims for infringement, passing off, damages, accounts or delivery-up.
Those questions remain open for adjudication in Civil Suit No. 31 of
2025.
46. There shall be no order as to costs.
47. Interim order, if any, passed earlier stands vacated.
(Dr. Sanjeeb K Panigrahi)
Judge
Orissa High Court, Cuttack,
th
Dated the 30 October, 2026
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Location: ORISSA HIGH COURT, CUTTACK
Date: 06-Nov-2026 16:08:19