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Ex-parte order placed without notice cannot be executed within the scope of Section 36 of C.P.C

Orders placed without notice did not fall within the scope of Section 36 C.P.C

Brief discussion on Judgement on ex-parte order does not fall under purview of section 36 c.p.c in G.M. Sheik vs Raja Biri Private Ltd case.

The appeal was due to alleged infringement of the Raja Biri and Raja Bidi trademarks and names. Before notice was served on the complainants, a unilateral injunction was issued on June 1, 2022, preventing them from conducting business. It turns out that the applicant was never tried in court. The court elaborated on the meaning of the term “ex parte” and the purpose of issuing such an order. It was determined that orders placed without notice to the other party did not fall within the scope of Section 36 C.P.C. The action taken by the court of first instance to set up a committee to implement the decision was deemed a breach of its obligations under Section 135(3) of the Trademark Act. It was noted that courts should be more cautious and vigilant when issuing unilateral injunctions under this section. Accordingly, the motion to refer the matter to the Thiruvananthapuram District and Sessions Courts was granted. A temporary stay granted by the High Court lasts until the Circuit and Circuit Courts rule on the application. Therefore, the appeal was granted and dismissed.

Important Provisions under Trade mark Act.

Section 135(2) of the Trade Marks Act 1999 – Section 2 of that section deals with making an injunction, which may be an ex-parte injunction. This may be done for one of the following reasons: To discover documents containing infringing goods or documents, or other evidence related to the subject matter of the claim and to prevent the defendant from disposing of or using his property in a manner that could affect the plaintiff’ability to recover any damages, costs or other monetary relief ultimately awarded to the plaintiff; Section 36 of the Code of Civil Procedure, 1908 – The provisions of this section relate to the application of orders. The provisions of the Code shall be deemed to apply to the execution of orders.

Analysis of the judgement

The court elaborated on the meaning of the term “ex parte” and its legal use. The term “unilateral” order is generally used to refer to any order or order made in the absence of the other party. In fact, the phrase “ex parte” describes what a person does or says when the other person is not around. In legal terms, this means an order or order made in the absence of the other party. An ex parte judgment is a judgment rendered by the court based on evidence provided by the plaintiff, proving the absence of the defendant. An injunction issued without prior notice to the defendant is sometimes called an “ex parte” order. In such arrangements, the term may be used in the absence of prior notice or if the party concerned is absent despite notice. So if a party had the opportunity to be heard and did not show up, the order remained binding on them. However, this order cannot be said to be binding on the parties, as in the first case the parties are denied a fundamental legal right to the “audi alteram partem”. The “right to be heard” is widely recognized as a principle that should be duly followed in all judicial and quasi-judicial proceedings. An “opportunity to be heard” should always be given unless the order is unenforceable. This is to ensure that the person against whom the allegation is made is informed, has the right to speak, and is given oral and documentary evidence. The binding force of the decision is therefore based in principle on this right and must be enforced by the court making the decision. Accordingly, any order made without notice to the other party will not fall within the scope of C.P.C. 36. After notification to the other party, it will be added up sequentially. An order or an order is binding or binding is based on the principle of satisfying a “right to a fair hearing.” If the other party does not show up and respond, the unilateral decision will be binding on it, but the decision made cannot be enforced without dunning and the possibility of a hearing.Therefore, the sale by the complainant Appointing a committee to block the trademark and confiscate all materials would be a violation of subsection (3) of section 135 of the Trademark Act. The fact that the petitioner was not entitled to a hearing despite a request for an early hearing, and the hearing was not held after 30 days, renders the action of the court of first instance negligent.The court also said courts should be more cautious and cautious when issuing unilateral injunctions. Such arrangements must not violate the rights of the other party.

Conclusions :-

In its decision, the Court ruled that an order made without prior notice to the other party cannot be brought within the scope of Article 36 of Civil Procedure Code. After notifying the other party, it can only be executed when combined in subsequent order. Therefore, the Court admitted the case across all relevant records from the Additional District Court to the Trivandrum Main District Court. The suspension of proceedings will be extended until the court decides on the application.

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