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Judgment
Per: Justice Subodh Abhyankar
1] This appeal has been filed by the appellant under Order 43 Rule 1 read with Section 104 of CPC read with section 13 of Commercial Courts Act, 2015 against the order dated 02.06.2026 passed by the Commercial Court (District Judge Level) in Case No.COMMS 67/2026, whereby, the respondent/plaintiff’s application for ex-parte ad-interim injunction has been allowed without issuing notice to the appellant/defendant.
2] In brief the facts of the case are that a civil suit has been filed by the plaintiffs for declaration and permanent injunction, infringement, restraining defendant from interfering and passing off under Sections 102 and 103 of the Trade Marks Act, 1999 read with Section 62 of the Copyright Act, 1957, and for further declaration of plaintiff’s mark as its own under Section 134 of the Trade Marks Act and Section 62 of the Copyright Act.
3] In the aforesaid suit, an application under Order 39 Rule 3 of CPC was also filed for an ex-parte ad-interim injunction on 05.05.2026, which was allowed by the Civil Court vide its impugned order dated 02.06.2026, granting injunction to the plaintiffs. The aforesaid order has been challenged before this Court in the present appeal.
4] Although, learned senior counsel for the appellant has vehemently argued that the order has been passed without hearing the appellant, and even a local Commissioner has been appointed however, on a query made by this Court, if any reply was filed by the appellant to the application for interim injunction, to which learned counsel has submitted that the next date of the hearing is fixed on 13.07.2026, and thus, there was no occasion to file the reply prior to the said date. Shri Munshi has also fairly admitted that the appellant had the notice of the impugned order after three days of its passing.
5] After hearing Shri Munshi at length, we are of the considered opinion that the appellant was required to file a response to the application in the Trial Court itself, which is also specifically provided under Rule 3 and 3A of Order 39, which reads as under ;-
“ORDER XXXIX
TEMPORARY INJUNCTIONS AND INTERLOCUTORY
ORDERS
Temporary Injunctions
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
(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.]”
[3A. Court to dispose of application for injunction within thirty
days.—Where an injunction has been granted without giving notice to the opposite party, the Court shall make an endeavour to finally dispose of the application within thirty days from the date on which the injunction was granted; and where it is unable so to do, it shall record its reasons for such inability.]
(Emphasis Supplied)
6] In the light of the aforesaid provision when we see the impugned order, it is found that there is no observation made by the learned Judge as to why it would be necessary to grant injunction without giving notice to the opposite party, and the application has also been disposed of, despite the fact that it should not have been so disposed of without allowing the other party to file its objection as the order passed under Rule 3 is purely ad-interim in nature.
7] A perusal of the aforesaid Rule 3A would also reveal that the Trial Court is required to hear the other party within thirty days’ from the date of the order of ex-parte interim injunction and pass the order on the application for temporary injunction, and if the order could not be passed within the aforesaid period of time, then reasons have also to be assigned for the same. Thus, it was also incumbent upon the appellants to submit their reply to the application for interim injunction in the Civil Court itself, however, instead of filing their reply in the Civil Court, they have directly approached this Court assailing the interim order, which, in the considered opinion of this Court is not the correct approach.
8] We are also rather surprised to see that after passing the impugned order on 02.06.2026, the trial Court has fixed 13.07.2026 as the next date of hearing in the trial court, i.e., after more than one month from the date of interim order, which is also not in accordance with Rule 3A, and cannot be countenanced.
9] Thus, the impugned order is hereby modified to the extent that the application for temporary injunction under Order 39 Rule 3 of C.P.C. shall be treated as pending instead of disposed of. The petition is hereby disposed of with a liberty to the appellant to file its reply to the application for interim injunction in the Commercial Court, which shall be decided in accordance with law.
10] Accordingly, with the aforesaid observations, the petition stands disposed of.
11] It is made clear that this Court has not reflected upon the merits of the matter.