JANUKI KUMARI J.B.RANA & ORS vs. ASHOK KUMAR AND ORS

* IN THE HIGH COURT OF DELHI AT NEW DELHI

% Reserved on: 09.02.2017
Decided on: 28.02.2017

+ CS(COMM) 77/2017, I.A. 1216/2017 (O 26 R 9), I.A. 1217/2017
(exemption), I.A. 1218/2017 (under Section 151 CPC)
JANUKI KUMARI J.B.RANA & ORS ..... Plaintiffs
Through: Mr C.M. Lall, Mr Nancy Roy,
Mr Pranay Sarkar and Mr Jeetu Sharma,
Advs.

versus
ASHOK KUMAR AND ORS ..... Defendants
Through: None.
CORAM:
HON'BLE MS. JUSTICE DEEPA SHARMA

JUDGMENT

I.A. 1215/2017 (O 39 R 1 & 2)
1. The present suit has been filed by the plaintiffs claiming the following
reliefs:-
a. A decree of permanent injunction be passed thereby directing
that the Defendants, its proprietor, partners, employees, agents,
distributors, franchisees, representatives and assigns be
restrained from manufacturing or authorizing the manufacture,
selling or offering for sale, marketing, advertising, promoting,
displaying or in any other manner whatsoever any sports shoe
or footwear and / or any other allied and cognate goods with
CS(COMM) No. 77/2017 Page 1



embossing on the heel of the sole of the shoe "MODEL IN
NEPAL", "MADE IN NEPAL", "Design In Nepal", "Degn In
Nepal", "MADE AS NEPAL" , "DESIGN AS NEPAL",
"DESIGN FROM NEPAL" or any other line which are
deceptively similar to the aforementioned to pass off the goods
of the Defendant as that of the Plaintiff and/or using the
Plaintiffs Registered Trade mark registered at 1369593,
1668434, 1673434 and 816260 or other deceptively similar
trademarks like "GOLDSTAR"/ "GOODSTAR'7 "GQLDSTAR"
"GOLBSTAR"/ "GLOBSTAR" / "GALDSTOR'V "GOALSTOR"/
"GOLSTAR"/ "GLADSTAR" and getup and/or any other trade
mark which is identical or deceptively or confusingly similar to
any of the above listed trade/label mark and/or any other trade
mark which are deceptively similar with the Plaintiffs
trademarks and facilitate passing off the Defendant's product as
that of the Plaintiff thereto.

b. An order for delivery up of all the goods, dyes, moulds, blocks,
tags, labels, other printed matter and any other material
whatsoever bearing the, trade mark/label mark and/or any other
mark confusingly and deceptively similar to the trade mark/label
mark, or bearing any mark "GOLDSTAR"/ "GOODSTAR"/
"GQLDSTAR" "GOLBSTAR"/ "GLOBSTAR" / "GALDSTOR"/
"GOALSTOR"/ "GOLSTAR"/
"GLADSTAR" and/or the Getup/shape of
the Plaintiffs shoe and/or with embossing MODEL IN NEPAL",
"MADE IN NEPAL", "Design In Nepal", "Degn In Nepal" , "MADE
AS NEPAL" , "DESIGN AS NEPAL", "DESIGN FROM NEPAL" or
any similar connotation directed to pass off its products as that of
the plaintiff, to the authorized representatives of the plaintiff for
the purpose of destruction;

c. A decree of damages of Rs.1,00,00,000/- for illegal profits
earned by the Defendant on account of their illegal activities and
for the loss caused to the goodwill and reputation of the Plaintiff.”

2. Vide this application plaintiffs have claimed ex-parte injunction
against Ashok Kumar/John Doe and defendant no 2 allegedly doing its
CS(COMM) No. 77/2017 Page 2



business of manufacturing counterfeit products in Hapur Meerut at the
address “Guru Kripa, Dheer Khera, Industrial Area, Merrut Road, Hapur
245101”.
3. The brief facts of the case as set out in the plaint are that the plaintiff
firm M/s Kiran Shoes Manufacturers is the registered partnership firm
registered with the Department of Industries, Nepal and other plaintiffs are
the partners and Sh. Ghanshyam Bahety is the authorized representative of
all the plaintiffs. It is submitted that the plaintiff firm is engaged in the
business of manufacturing and marketing sports shoes and footwears under
its registered trademark GOLDSTAR vide trademark bearing nos. 1668484,
1669858, 1673434 and 816260 and the manufacturing takes place in Nepal
and they are exporting it to India since 1977/1998. The plaintiffs have
various distributors in India including M/s Katyal Metal Agencies at New
Delhi. It is submitted that plaintiffs have also opened a Liaison office at
181-B, 2nd floor near Sai Mandir, Khirki Village, Malviya Nagar, New
Delhi-1100017 through which the Plaintiffs carrying on its business.
4. It is submitted that defendants are manufacturing and selling
counterfeit products embossing "GOLDSTAR"/"GOODSTAR"/
"GQLDSTAR"/"GOLBSTAR"/"GLOBSTAR"/"GALDSTOR"/"GOALSTO
CS(COMM) No. 77/2017 Page 3



R"/"GOLSTAR"/"GLADSTAR"and/or MODEL IN NEPAL", "MADE IN
NEPAL", "DESIGN IN NEPAL", "DEGN IN NEPAL", "MADE AS
NEPAL", DESIGN AS NEPAL" , "DESIGN FROM NEPAL" on the sole of
the shoes, like the embossing of "MADE IN NEPAL" on the heel of the sole
of Plaintiffs’ products, and these counterfeit shoes are manufactured at the
addresses of the Defendants as mentioned in the cause title of the Plaint
and that this action of the defendants amounts to infringement of registered
trademarks and passing off.
5. The Court heard the arguments on two count i.e. maintainability of
the suit in the present form and also grant of ex-parte ad interim injunction
against unknown persons who are named as John Doe/Ashok Kumar and
against defendant no. 2.
6. Learned counsel for the plaintiffs has submitted that the suit is
maintainable because there is no provision in Code of Civil Procedure, 1908
(hereinafter referred to as “CPC”) which bars the suit in the present form.
He has also relied on the provisions of order VII Rule 1(c) which required
that the plaintiff has to furnish the name, description and place of residence
of the defendant so far that can be ascertained and since the plaintiffs, at this
moment, are not able to ascertain the defendants shown as John Doe or
CS(COMM) No. 77/2017 Page 4



Ashok Kumar but as soon as they would be able to ascertain these names it
would be brought on record and that the defendant no. 2 is ascertainable and
therefore the suit cannot be said to be not maintainable. He has also relied on
Order 26 Rule 9 of CPC and argues that the Court is empowered to do the
local investigation where it is so needed for the purpose of elucidating the
matter in dispute and can issue commission for that purpose and argues that
once an injunction is issued, court can appoint commissioners to identify the
places where the counterfeit goods are being sold and persons selling it.
7. I have given thoughtful consideration to this part of the argument of
learned counsel for the plaintiffs. The plaintiffs have not given any address
of defendant no. 1 whom he described as John Does/Ashok Kumar.
However, the plaintiffs have named one Guru Kirpa as defendant no. 2 who
is stated to be carrying on the business in the industrial area, Meerut road,
Hapur but neither the identity, whether he is an individual or a firm or a
company, nor the complete address of defendant no. 2 is there on record.
This court does not know who the defendant no. 1 is but defendant no. 2
definitely is not situated in Delhi and plaintiffs are also situated in Nepal
where they are carrying on their business and exporting goods to India
although they claim to have a Liaison office in India. Definitely, an issue
CS(COMM) No. 77/2017 Page 5



relating to territorial jurisdiction of this Court arises and this court feels that
it would be proper if both the issues shall be taken up together.
8. Learned counsel for the plaintiffs has pressed for the grant of injunction
against defendant no. 1, unknown persons, who according to him are selling
their counterfeit products within Delhi and urged that they, be restrained
from selling the counterfeit products and infringing the plaintiffs’ trademark
and causing irreparable loss and injury to the plaintiffs whom he could not
identify despite their best efforts. It is also urged that the balance of
convenience also lies in their favour. It is argued that the plaintiffs are ready
and open to any restrictions placed by the Court on them while injuncting
the John Doe or Ashok Kumar from selling the counterfeit products and that
there are precedents of this Court show that in similar circumstances courts
had injuncted John Doe /Ashok Kumar and that the courts are bound by
precedents and in case it does not want to follow the precedents and wants to
differ with the earlier orders of this Court passed by the Single Judges, this
Court has to refer the matter to the Division Bench of two Judges and relied
on the findings in para 27 of the Division Bench in the case M/S RSPL
Limited V. Mukesh Sharma & Anr 2016(6) R.A.J. 606 (Del):-
CS(COMM) No. 77/2017 Page 6



“27. Judicial discipline and propriety requires that a Single
Bench should follow the decision of a Division Bench without
demur as the Single Bench is bound by it. It is all the more so
when the Division Bench decision is of an appellate court and the
Single Bench happens to be the trial court. It is a matter of
judicial propriety that the hierarchical system is followed. A
decision of an appellate court may in the view of the trial court
be right or wrong, but the trial court has no option but to follow
it. In fact, a Single Judge cannot even refer a matter for decision
by a Bench comprising of more than two judges. Furthermore,
the Single Judge can only refer a matter to be placed before a
Division Bench of two judges if the Single Judge finds that there
is a conflict of decisions of Single Benches. If there are
conflicting decisions of Division Benches of co-equal strength, it
is, of course, open to the Single Judge to follow the later
decision. But, in such a situation, the learned Single Judge
cannot seek a reference to a Full Bench of three or more Judges.
That would fall within the domain of a Division Bench. The
Supreme Court in Pradip Chandra Parija vs. Pramod Chandra
Patnaik: (2002) 1 SCC 1 observed as under:-
5. The learned Attorney-General submitted that a Constitution
Bench judgment of this Court was binding on smaller Benches
and a judgment of three learned Judges was binding on Benches
of two learned Judges -- a proposition that learned counsel for
the appellants did not dispute. The learned Attorney-General
drew our attention to the judgment of a Constitution Bench in
Sub-Committee of Judicial Accountability vs. Union of India
(1992) 4 SCC 97] where it has been said that "no coordinate
Bench of this Court can even comment upon, let alone sit in
judgment over, the discretion exercised or judgment rendered in
a cause or matter before another coordinate Bench" (SCC p. 98,
para 5). The learned Attorney-General submitted that the
appropriate course for the Bench of two learned Judges to have
adopted, if it felt so strongly that the judgment in Nityananda Kar
1991 Supp (2) SCC 516 : 1992 SCC (L&S) 177 : (1992) 19 ATC
236: 1990 Supp (2) SCR 644] was incorrect, was to make a
reference to a Bench of three learned Judges. That Bench of
CS(COMM) No. 77/2017 Page 7



three learned Judges, if it also took the same view of Nityananda
Kar [1991 Supp (2) SCC 516: 1992 SCC (L&S) 177: (1992) 19
ATC 236: 1990 Supp (2) SCR 644], could have referred the case
to a Bench of five learned Judges.
6. In the present case the Bench of two learned Judges has, in
terms, doubted the correctness of a decision of a Bench of three
learned Judges. They have, therefore, referred the matter directly
to a Bench of five Judges. In our view, judicial discipline and
propriety demands that a Bench of two learned Judges should
follow a decision of a Bench of three learned Judges. But if a
Bench of two learned Judges concludes that an earlier judgment
of three learned Judges is so very incorrect that in no
circumstances can it be followed, the proper course for it to
adopt is to refer the matter before it to a Bench of three learned
Judges setting out, as has been done here, the reasons why it
could not agree with the earlier judgment. If, then, the Bench of
three learned Judges also comes to the conclusion that the
earlier judgment of a Bench of three learned Judges is incorrect,
reference to a Bench of five learned Judges is justified."
9 . Learned counsel has cited following cases as precedents-

CS(COMM) No. 77/2017 Page 8

CS(COMM) No. 77/2017 Page 9

10. John Doe orders is nothing but an injunction sought against the person
or persons whose identity is not known at the time of issuance of the order.
John Doe has its origin under reign of England’s King Edward III when the
orders were used to refer to unidentifiable defendants.
11. Such orders are popular in the cases of intellectual property rights and
enables an intellectual property rights owner (the plaintiff) to serve notice
and take action against anyone, whose identity is unknown and found
infringing the IP rights of the plaintiff. Such orders do not specify any one
defendant in particular and allow the owner of the intellectual property to
search the premises and recover evidences on infringement of its rights by
unknown defendant (John Does). These orders are descendants of the Anton
Pillar injunctions which originated in the England Court of Appeal in Anton
Pillar K.G vs. Manufacturing Processes Ltd (1976) 1 All ER 779
CS(COMM) No. 77/2017 Page 10



commonly known as Anton Pillar orders with the difference however that
the Anton Pillar orders are defendants specific. The Anton Pillar are ex-
parte orders which would allow the plaintiff to enter the premises of the
defendants for inspection or removal of critical evidence which could
otherwise be destroyed by the defendant if it had forewarning of a legal
action.
12. In India, John Doe or Ashok Kumar orders was first passed by Delhi
High Court in the case of Taj Television Limited vs. Rajan Mandal, 2003
FSR 22 .
The Court in that case noted-
“ 16. Mr. Anand, learned counsel for the plaintiffs, has made
references to a large number of Canadian, Australian, English
and American cases but I would not like to burden this order
with all the judgments on which reliance has been placed at this
stage. Since “John Doe” orders are passed in the Court of
Canada, America, England, Australia and in some other
countries. The judicial systems of all these countries have basic
similarity with our judicial system. Therefore looking to the
,
extra ordinary facts and circumstances of the case, in the
interest of justice the courts in India would also be justified in
passing “John Doe “orders.”

13. It is noteworthy here that the Court in Taj Television (supra) had
invoked its jurisdiction under Section 151 of CPC reproduced as under:-
“14. Mr. Anand placed reliance on the judgment of the
Supreme Court in Manohar Lal Chopra v Rai Bahadur Rao
CS(COMM) No. 77/2017 Page 11



Raja Seth Hiralal, AIR 1962 SC 527. The court held that the
inherent powers of the Court are in addition to the powers
specifically conferred on the Court by the Code. They are
complementary to those powers and therefore, it must be held
that the court is free to exercise them for the purposes
mentioned in Section 151 of the Code when the exercise of those
powers is not in any way in conflict with what has been
expressly provided in the Code or against the intentions of the
Legislature.”

14. With all the humility this Court wants to clarify that it is not entering
into the debate whether passing of John Doe orders in exercise of
discretionary powers under Section 151 of CPC is right or wrong, what this
Court is considering is whether, is it proper for this Court to exercise its
inherent powers under Section 151 of CPC in favour of the plaintiffs, in the
facts and circumstances of this case and pass a John Doe/Ashok Kumar
Order when defendant no. 2 who is allegedly infringing trade mark by
manufacturing counterfeit goods is not doing so within the territorial
jurisdiction of this court and plaintiffs are also not carrying on their business
in India rather they are the exporters. There are no questions of law involved
rather it is the application of law on the given facts which the plaintiffs want
the Court to apply on the facts of their case. In none of the cited cases, facts
are similar to this case. The law laid down in RSPL (supra) is not applicable.
CS(COMM) No. 77/2017 Page 12



15. In Reliance Big Entertainment (supra) also known as the Singham
Case , John Doe order was passed by the Delhi High Court on the
anticipation of violation of the right of the plaintiff, without any cogent
evidence to that effect and merely relying on similar instances that had
happened in the past. The Court noted “Past practice of unauthorized
persons indulging in such illegal activities of copying the film on
CDs/DVDs/Blue-ray disc and distributing the same has also been
recognized in the judgment relied upon by the plaintiff. In the facts of this
case, as detailed above, in my view plaintiff has succeeded in making a
prima facie case in its favour. Plaintiff has exclusive copy right over the
film Singham which is yet to be released. In case, CD, DVD, Blue-ray, VCD
are made by unidentified persons and distributed and shown on cable TV,
DTH, Internet, MMS, Tapes and CAS, plaintiff will indubitably suffer
irreparable loss and injury. For the forgoing reasons, defendants and other
unnamed and undisclosed persons, are restrained from communicating or
making available or distributing, or duplicating, or displaying, or releasing,
or showing, or uploading, or downloading, or exhibiting, or playing, and/or
defraying the movie Singham in any manner without proper license from the
plaintiff or in any other manner which would violate/infringe the plaintiff‟s
CS(COMM) No. 77/2017 Page 13



copyright in the said cinematograph film Singham through different
mediums like CD, DVD, Blue-ray, VCD, Cable TV, DTH, Internet, MMS,
Tapes, Conditional Access System or in any other like manner”. Singham
order and other similar orders in Reliance Big Entertainment (supra) ,
Viacom 18 Motion Pictures (supra) have been passed in the matters where
the term “Internet” has been used while granting the anticipatory injunction
and this has resulted in shutting down websites precluding, uploading of the
infringing materials. It is noteworthy that all the cases on which the
plaintiffs have relied as precedents had definite defendants towards whom
the plaintiffs of those cases had raised a pointing finger and the courts while
exercising its discretion qua the identified defendants under Order 39 Rule 1
and 2 CPC also on the facts and circumstances of each case exercised its
jurisdiction under Section 151 of CPC against John Doe or Ashok Kumar.
16. This is true for all cited cases except M/s. Sandisk Coraporation
(supra) case. The court exercised its inherent jurisdiction on the facts and
circumstances of that case and therefore the fact that the court on the facts
and circumstances of Sandisk (supra) case choose to exercise jurisdiction in
a particular way, it cannot be said that it forms precedent of binding nature
CS(COMM) No. 77/2017 Page 14



when the facts and circumstances of this case are entirely different. The
exercise of discretion depends on the facts and circumstances of each case.
17. The Courts in India for the first time recognized the concept of John
Doe (or Ashok Kumar) in Taj Television case (supra) and while exercising
its inherent jurisdiction under Section 151 of CPC relied on the findings of
the Supreme Court in Mohan Lal Chopra Case (supra) and issued injunction
against John Doe. It is to be noted that Padam Sen (supra) was relied upon
in Manohar Lal Chopra case (supra), the Apex Court in Padam Sen vs. The
State of Uttar Pradesh, AIR 1961 SC 218 has held as under:-
“9. The inherent powers of the Court are in addition to the
powers specifically conferred on the Court by the Code. They
are complementary to those powers and therefore it must be
held that the Court is free to exercise them for the purposes
mentioned in S. 151 of the Code when the exercise of those
powers is not in any way in conflict with what has been
expressly provided in the Code or against the intentions of the
Legislature. It is also well recognized that the inherent power
is not to be exercised in a manner which will be contrary to or
different from the procedure expressly provided in the Code.”

10. The question for determination is whether the impugned
order of the Additional Munsif appointing Sri Raghubir
Pershad Commissioner for seizing the plaintiff books of account
can be said to be an order which is passed by the Court in the
exercise of its inherent powers. The inherent powers saved by
Section 151 of the Code are with respect to the procedure to be
followed by the Court in deciding the cause before it. These
powers are not powers over the substantive rights which any
litigant possesses. Specific powers have to be conferred on the
CS(COMM) No. 77/2017 Page 15



Courts for passing such orders which would affect such rights
of a party. Such powers cannot, come within the scope of
inherent powers of the Court in the matters of procedure, which
powers have their source in the Court possessing all the
essential powers to regulate its practice and procedure. A party
has full rights over its books of account. The Court has no
inherent power forcibly to seize its property. If it does so, it
invades the private rights of the party. Specific procedure is
laid down in the Code for getting the relevant documents or
books in Court for the purpose of using them as evidence. A
party can ask the help of the Court to have produced in Court
by the other party such documents as it would like to be used in
evidence and are admitted by that party to be in its possession.
If a party does not produce the documents it is lawfully called
upon to produce, the Court has the further power to draw any
presumption against such a party who does not produce the
relevant document in its possession, especially after it has been
summoned from it. Even in such cases where the Court
summons a document from a party, the Court has not been
given any power to get hold of the document forcibly from the
possession of the defaulting party.”

18. In CPC, there is no provision to issue injunctions against unknown
persons. It is pertinent to note here that in most other jurisdictions such as
UK and Australia, there exists sufficient statutory backing for the Courts to
pass such orders. For instance, in UK, this type of an order finds formal
recognition in Civil Procedure Act of 1997.
19. The next question is whether it is a fit case to exercise its inherent
powers under Section 151 of CPC to issue injunctions. Order 39 of CPC
confers powers to the courts to issue injunctions only against “the
CS(COMM) No. 77/2017 Page 16



defendants” and not against “ a defendant” . It is a settled proposition of
law that the inherent powers of the Court is in addition to and
complimentary to the powers expressly conferred upon the Court. Such
powers can be exercised to serve the ends of justice but as discussed in
Padam Sen (supra) , not to be exercised in derogation of the express
provisions of the law.
20. This Court has in a previous decision in The Indian Performing
Right Society Ltd vs. Mr. Badal Dhar Chowdhry and Ors, 2010 (43) PTC
332 (Del), noted that injunction must necessarily be specific in character and
cannot be indeterminate. The Court has noted as under:-
7. The court ought not issue an injunction which is vague or
indefinite. Breach of injunction has serious consequences for
the violator. However, before the Defendant can be so
injuncted, the Defendant ought to be made aware of the precise
act which he is prohibited from doing. A vague injunction can
be an abuse of the process of the court and such a vague and
general injunction of anticipatory nature can never be granted.
Lord Upjohn in Redland Brick Ltd. v. Moeris (1970) A.C. 652
observed that a defendant is entitled to know what he is
required to do or to abstain from and this means not as a matter
of law but as a matter of fact. The Division Bench of this Court
also in Time Warner Entertainment Co. L.P. v. R.P.G. Netcom;
AIR 2007 Delhi 226 has held that a vague order of injunction
which is uncertain in its application and likely to cause
confusion should not be passed; it will be impossible for the
courts to ensure implementation and compliance without the
Defendant or the court knowing as to which works the
injunction applies.”
CS(COMM) No. 77/2017 Page 17




21. In another case, Adarsh Tobacco vs. Mr. Munna Bhai and Ors, 2009
(39) PTC 208 (Del) , although this Court while granting injunction against
identified defendants, also granted ex-parte injunction against the John Doe
defendants, however while finally disposing of the matter, Court noted as
under:-
“9. Though in the plaint reliance was also placed on
„John Doe‟ order as aforesaid and in pursuance whereto
the premises of others besides the defendants 1 , 2 and 3
were also raided and infringed goods found there from
also seized, the plaintiff having not brought any other
person against whom the order may be extended, till the
disposal of the suit, the suit is decreed against the
defendants 1,2 and 3 only for the relief of permanent
injunction in terms of para 24 (i) (ii) and (iii) of the
plaint and a decree for recovery of damages in the sum of
Rs. 25,000/- from each of the defendants 1 to 3 is also
passed in favour of the plaintiff. The plaintiff shall also
be entitled to proportionate costs of the suit from the
defendants 1 to 3.”

22. This Court has thus passed the permanent injunction decree only
against the definite defendant nos. 1, 2 and 3 and no permanent injunction
was granted against John Doe/Ashok Kumar.
23. Similarly, the Supreme Court also in the case of Laxmishankar
Harishankar Bhatt V. Yashram Vasta(dead) by L.Rs, 1993 (3) SCC 49 has
held that the relief cannot be granted to the plaintiff when there are no clear
CS(COMM) No. 77/2017 Page 18



averments in the plaint as to whom the relief is being claimed against. The
Court had noted “a careful reading of above clearly discloses that there is no
clear averment as to who the co-owners are and what exactly is the nature of
right claimed by them. A vague statement of this character, in our
considered opinion, could hardly be sufficient to non-suit the appellant on
the grant of non-joinder of parties. Order 39 Rule 1 and 2 of the CPC
confers jurisdiction to the Courts to grant temporary injunction and the
Court has to satisfy itself (i) that the plaintiff has a prima facie case, (ii) that
the balance of convenience is in favour of the plaintiff, and (iii) that the
plaintiff would suffer irreparable injury if his prayer for temporary
injunction is disallowed and yet these tests are subject to the exercise of
discretion to meet the ends of justice as was held in Dalpat Kumar And Anr.
vs Prahlad Singh And Ors. (1992) 1 SCC 719. Moreover, no injunction can
be granted under these rules against the party who is not a party to the suit as
was highlighted in L.D. Meston School Society vs Kashi Nath Misra, AIR
1951 All 558 . It was noted that the persons who were not the defendants in
the suit in which injunction was granted nor were named in the order cannot
be proceeded against any contempt for disobeying the injunction order. The
CS(COMM) No. 77/2017 Page 19



Apex Court in para 22 of M/s H.M. Kamaluddin Ansari and Co. vs. Union
of India and Ors, (1983) 4 SCC 417 has observed as under:-
“22. In any case if the injunction order is one which a party
was not bound to comply with, the court would be loath and
reluctant to pass such an ineffective injunction order. The court
never passes an order for the fun of passing it. It is passed only
for the purpose of being carried out.”

24. Order 39 Rule 3 of CPC noted as under:-
“3. Before granting injunction, court to direct notice to
opposite party.- 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:
Provided that, where it is proposed to grant an injunction
without giving notice of the application to the opposite party,
the court shall record the reasons for its opinion that the object
of granting the injunction would be defeated by delay, and
require the applicant—
(a) 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—
(i) a copy of the affidavit filed in support of the application;
(ii) a copy of the plaint; and
(iii) copies of documents on which the applicant relies, and
CS(COMM) No. 77/2017 Page 20



(b) to file, on the day on which such injunction is granted or on
the day immediately following that day, an affidavit stating that
the copies aforesaid have been so delivered or Sent.”
25 . This court in para 34 of S.B.L. Ltd. Vs. Himalayan Drug Co.,
AIR 1998 Delhi 126 , observed as under:-

26. The Court has to ensure that the obligations imposed upon it by this
provision of law are complied with. In a case where the ex-parte ad interim
injunction is granted, the opposite party against whom an order of injunction
is passed is required to be served with the copy of the order along with the
other relevant documents on same day or next day and the plaintiff has to
file such an affidavit of compliance in the Court. On an ex-parte ad interim
injunction being granted against John Doe or Ashok Kumar i.e. unknown
defendant, this Court wonders how the applicant would fulfill the conditions
CS(COMM) No. 77/2017 Page 21



of this provision of law and if this Court cannot ensure the compliance it
would be failing in its obligations conferred under the provisions of law. In
the case H.H. Kamaluddin (supra), the Supreme Court has cautioned that an
ineffective injunction should not be granted and the Court shall never pass
an order for the “fun of passing it” . Learned counsel for plaintiffs has failed
to point out any manner in which the ex-parte injunction order against the
unknown defendants be made known to them or the way in which the
compliance of Order 39 Rule 3 of CPC can be done. Grant of ex-parte
injunction in this case, court feels like issuing a blank civil search warrant
against unknown/unnamed infringers and thereby allowing the plaintiffs to
enter any premises, any shop in search of the counterfeit articles, either
personally or through court commissioners under Order 26 Rule 9 of CPC.
The court wonders if this is the object of this provision. It is not that the
plaintiffs are remediless against unknown persons i.e. the infringers in case
of mass infringement of trademark. When wide scale of violation or
infringement of trademarks are found, the remedy is available in the
Trademark Act itself by way of criminal complaint against those unknown
infringers of the trademark and the offences are cognizable offences under
Section 115 of the Trademark Act .
CS(COMM) No. 77/2017 Page 22



27. For the foregoing reasons, I do not find it a fit case where the
discretion of grant of ex-parte ad interim injunction should be exercised in
favour of the plaintiffs.

DEEPA SHARMA
(JUDGE)

CS(COMM) 77/2017
List the matter for arguments on jurisdiction of the Court on
17.07.2017.

DEEPA SHARMA
(JUDGE)

FEBRUARY 28, 2017
ss

CS(COMM) No. 77/2017 Page 23