Rajiv Singh vs Manoj Kanti Sensarma & Ors.

The plaintiff''s prayer for ad interim injunction in passing off suit was rejected by the learned Trial Judge. Challenging the said order, the plaintiff preferred an appeal being FMAT 1049 of 2016. This Court declined to interfere with the impugned order. However, leave was granted to the defendants to file affidavit-in-opposition to the plaintiff''s application for temporary injunction within two weeks after reopening of the court after Puja Vacation. Leave was also granted to the plaintiff to file reply, if any, to the said affidavit within a week thereafter. This Court requested the learned Trial Judge to dispose of the plaintiff''s application for temporary injunction by middle of December, 2016 without granting any unnecessary adjournment to any of the parties. The learned Trial Judge was also directed to dispose of the plaintiff''s application for temporary injunction according to his own wisdom and without being influenced by any of the observations made in the order passed by this Court while disposing of the said first miscellaneous appeal.

Plaintiff was not satisfied with the said order. He moved a Special Leave Petition before the Hon''ble Supreme Court challenging the said order passed by this Court in the aforesaid first miscellaneous appeal. The said Special Leave Petition being S.L.P. (C) No. 805/2017 was disposed of by the Hon''ble Supreme Court on 23rd January, 2017. The order which was impugned in the said Special Leave Petition was not interfered with by the Hon''ble Supreme Court. The Hon''ble Supreme Court passed the following order :- " O R D E R

Exemption from filing certified copy of the impugned judgment is granted. We decline to interfere inasmuch as the learned trial Court, pursuant to the order of the High Court, has fixed the consideration of the application for temporary injunction on 8th February, 2017. The learned trial Court is requested to hear and decide the matter on the said date.

The Special Leave Petition is disposed of in the above terms."

Pursuant to the direction passed by the Hon''ble Supreme Court, the parties went back to the learned Trial Court on 8th February, 2017, though they are now trying to point out before this Court that 8th February, 2017 was not the date fixed for hearing of the plaintiff''s application for temporary injunction.

It is submitted by Mr. Bachawat, learned senior counsel appearing for the respondent nos. 1 and 2, on instruction from his learned advocate-on-record Mr. Anindya Lahiri that temporary injunction matter was fixed for haring before the learned Trial Court on a subsequent date.

Be that as it may, the trial court record is not before us. As such, we are unable to verify as to whether 8th February, 2017 was the date fixed for hearing of the plaintiff''s application for temporary injunction or not. However, it appears from the record that on 8th February, 2017, a prayer for adjournment was made by Mr. Bachawat''s clients before the learned Trial Court. Such prayer for adjournment was refused by the learned Trial Court in view of the direction passed by the Hon''ble Supreme Court, but, at the same time, Mr. Bachawat''s clients were permitted to file affidavit-in-opposition to the plaintiff''s application for temporary injunction on 8th February, 2017. A copy of the said affidavit-inopposition was served upon the plaintiff''s lawyer in court on 8th February, 2017.

Mr. Chatterjee, learned advocate appearing for the plaintiff/appellant submits that his client was not given any opportunity to file reply to the said affidavit. Mr. Chatterjee further submits that since the copy of the affidavit-inopposition was served upon the plaintiff''s advocate in the court below on 8th February, 2017, the plaintiff also filed an application for adjournment in the court below, so that he can consider the stands which were taken by the defendants in their affidavits. Such prayer for adjournment was also refused by the learned Trial Judge and in fact, the learned Trial Judge proceeded to dispose of the plaintiff''s application for temporary injunction on the very same day.

Mr. Chatterjee, thus, submits that under such compelling circumstances, the parties had to participate in the hearing of the plaintiff''s said application for temporary injunction and ultimately the plaintiff''s application for temporary injunction was rejected by the learned Trial Judge by the order which is now impugned in this first miscellaneous appeal.

In connection with this first miscellaneous appeal, an application for interim injunction has also been filed by the plaintiff disclosing therein some additional facts and also annexing therein some new documents which could not be disclosed by the plaintiff before the learned Trial Court.

Objection is taken by the learned counsel appearing for the respondent nos. 1 and 2 against entertaining those documents in this appeal as no application has been taken out by the plaintiff/appellant under Order XLI Rule 27 of the Code of Civil Procedure in this appeal.

In these set of facts, we have no hesitation to come to the conclusion that the learned Trial Judge was also deprived of considering the respective claims of the parties at the time of disposing of the plaintiff''s application for temporary injunction. In such situation, we feel that justice will be subserved if we set aside the impugned order without even entering into its merit and request the learned Trial Judge to dispose of the plaintiff''s application for temporary injunction after considering the pleadings of the plaintiff, affidavit-in-opposition filed by the defendant nos. 1 and 2 as well as the affidavit-in-reply to be filed by the plaintiff in connection with the plaintiff''s application for temporary injunction. Leave is granted to the plaintiff to file affidavit-in-reply before the learned Trial Court to the said affidavit-in-opposition filed by the defendant nos. 1 and 2 within a week from date.

Mr. Roy, learned advocate appearing for the respondent no.3 submits that his client also wants to file affidavit-in-opposition to the plaintiff''s application for temporary injunction in the court below.

Leave is granted to Mr. Roy''s client to file affidavit-in-opposition to the plaintiff''s application for temporary injunction in the court below within a week from date; reply, if any, be filed by the plaintiff within a week thereafter.

We are also informed by Mr. Bhattacharya, learned senior counsel appearing for the respondent nos. 4 that his client being the defendant/respondent no.4 has already filed an affidavit-in-opposition; reply, if any, to the said affidavit-in-opposition be filed by the plaintiff within a week from date.

If the other defendant viz., the defendant no.5 intends to file any affidavitin- opposition in connection with the plaintiff''s application for temporary injunction, he is permitted to do so within a week from date and reply, if any, to the said affidavit-in-opposition be filed by the plaintiff within a week thereafter.

Learned Trial Judge is requested to dispose of the plaintiff''s application for temporary injunction by the end of June 2017.

It is made clear that the time schedule, which is fixed by this Court either for filing affidavits by the respective parties or for disposal of the plaintiff''s application for temporary injunction, should be regarded as peremptorily fixed by this Court.

The appeal and the application for injunction filed in connection therewith are, thus, disposed of.

Urgent photostat certified copy of this order, if applied for, be given to the parties as expeditiously as possible.