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2001 DAILYLAW 1544 (DEL)

GANESH PLASTIC v. LAJPAT RAI SOBTI

2001-08-07

Devender Gupta, Sanjay Kishan Kaul

body2001
Delhi High Court (August 7, 2001) 2001 (TLS)125890 2001-DRJ-60-390 GANESH PLASTIC Vs. Lajpat Rai Sobti Devinder Gupta ( 1 ) ( 2 ) THIS appeal has been preferred by the plaintiff against the order passed on 30/5/2001 by learned Single Judge deciding an application filed by the defendants under Order 39 Rule 4 read with Section 151 Civil Procedure Code. By the said application the defendants had sought vacation of the ex parte order of injunction passed on 1/5/2001 on the plaintiffs application restraining the defendants from imitating/infringing the design of the plaintiff. Learned Single Judge allowed the application and vacated the ex parte order of injunction. After having vacated the ex parte order of injunction learned Single Judge proceeded to consider the request of defendants for issuing order of injunction against the plaintiff and observed that a case for interim injunction against plaintiff has been made out. Accordingly the plaintiff was restrained from manufacturing and selling the design in question till next date for which date plaintiffs application filed under Order 39 Rules 1 and 2 Civil Procedure Code was to be considered on merits. ( 3 ) FEELING aggrieved the plaintiff filed this appeal. On 20/6/2001 while issuing notice to the defendants to show cause why the appeal be not admitted an interim order was passed staying the direction made in the impugned order restraining the plaintiff from manufacturing and selling the design in question. The said order is in operation till date. As a result of the impugned order and the order passed on 20/6/2001 as of today there is no injunction operating in favour of the plaintiff against the defendants and the injunction granted in favour of defendants against the plaintiff stands stayed whereas the plaintiffs application seeking injunction against defendants is yet to be decided by the learned Single Judge on merits. We need not go into the merits of the case of either party at this stage except to make certain observations with regard to the procedure adopted by the learned Single Judge while dealing with the application of the defendants filed under Order 39 Rule 4 Civil Procedure Code. ( 4 ) LEARNED Single Judge proceeded to take up the defendants application filed under Order 39 Rule 4 Civil Procedure Code wherein the defendants had prayed for vacating the ex-parte order of injunction granted in plaintiffs favour. ( 4 ) LEARNED Single Judge proceeded to take up the defendants application filed under Order 39 Rule 4 Civil Procedure Code wherein the defendants had prayed for vacating the ex-parte order of injunction granted in plaintiffs favour. Instead of taking the said application alongwith the plaintiffs application not only the learned Single Judge disposed of the application filed under Order 39 Rule 4 Civil Procedure Code by vacating the ex parte order of injunction but he even proceeded to pass an order of injunction against the plaintiff and also kept the application of the plaintiff pending. This procedure is not warranted in law. The course which learned Single Judge ought to have adopted was to take up both the applications filed under Order 39 Rules 1 and 2 Civil Procedure Code and Order 39 Rule 4 Civil Procedure Code together and ought to have disposed of the same by a common order. By granting an injunction against plaintiff and thereby keeping his application under Order 39 Rules 1 and 2 Civil Procedure Code pending has undoubtedly caused prejudice to the plaintiff. On this ground alone this appeal is liable to be allowed and the impugned order is liable to be set aside. ( 5 ) KEEPING in view the facts and circumstances of the case while setting aside the impugned order we will-not interfere with the said order by which ex parte order of injunction was vacated. Setting aside the order will have the effect of setting aside of that part of the impugned order by which injunction has been granted in favour of the defendants against the plaintiff and keeping the prayer of the defendants open which the defendants made in the application under Order 39 Rule 4 read with Section 151 Civil Procedure Code praying injunction against the plaintiff. ( 6 ) APPEAL is allowed. Impugned order except that part of the impugned order by which ex parte order of injunction was vacated is set aside with direction for disposal of the application under Order 39 Rules 1 and 2 Civil Procedure Code and of the prayer made by the defendants/respondents in their application under Order 39 Rule 4 Civil Procedure Code for grant of injunction against plaintiff on merits in accordance with law after hearing the parties and uninfluenced by the observations made earlier while disposing of the application of defendants. ( 7 ) PARTIES to appear before the learned Single Judge on 25/9/2001, the date already fixed in the matter. Liberty, however, is reserved to the parties to apply for preponement of the date. --- *** --- .