TMI Blog2012 (3) TMI 705X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 ex parte order of injunction dated 28th 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 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 XXX ..... X X X X Extracts X X X X X X X X Extracts X X X X
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