1 R IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE08H DAY OF NOVEMBER, 2022 PRESENT THE HON'BLE MR. JUSTICE G. NARENDAR AND THE HON'BLE MR. JUSTICE P.N.DESAI COMMERCIAL APPEAL NO.460 OF2022BETWEEN: SMT SUPRIYA SHRINATE AGED ABOUT45YEARS, W/O. DHIRENDRA SINGH CHAIRPERSON OF SOCIAL MEDIA AND DIGITAL PLATFORMS OF THE INDIAN NATIONAL CONGRESS, R/AT. NO.24, AKBAR ROAD, NEW DELHI-110 011. ... APPELLANT (BY SRI. ABHISHEK MANU SINGHVI, SRI. UDAYA HOLLA AND SRI. A.S PONNANNA, SENIOR ADVOCATES FOR SMT. LEELA P. ADVOCATE ) AND:
1. M/S MRT MUSIC ORS. A PARTNERSHIP FIRM, 'HAVING IT'S OFFICE AT4H FLOOR, TTMC, BMTC BUILDING, YESHWANTHPURA CIRCLE, BANGALORE-560 022.
2. TWITTER INC. HAVING REGISTERED OFFICE AT; 1355 MARKET ST#900, SAN FRANCISO, CA94103 UNITED STATES REPRESENTED BY ITS DIRECTORS. 2
3. INDIAN NATIONAL CONGRESS; HAVING ITS OFFICE AT NO.24, AKBAR ROAD, NEW DELHI, REPRESENTED HEREIN BY THE ALL INDIA CONGRESS COMMITTEE, REPRESENTED BY GENERAL SECRETARY I/C , COMMUNICATION, PUBLICITY, MEDIA INCLUDING SOCIAL AND DIGITAL MEDIA OF THE INDIAN NATIONAL CONGRESS MR. JAIRAM RAMESH.
4. SRI. RAHUL GANDHI, S/O LATE RAJIV GANDHI, MEMBER OF STEERING COMMITTEE, INDIAN NATIONAL CONGRESS, HAVING HIS ADDRESS AT312, TUGHALAK LANE, NEW DELHI-110 011.
5. ASHOK KUMAR, ... RESPONDENTS (BY SRI. SRINIVASA RAGHAVAN .V, SENIOR ADVOCATE FOR NARASIMHAN S. PRANAV, ADVOCATE FOR C/R1) THIS COMMERCIAL APPEAL IS FILED UNDER SECTION131A) OF THE COMMERCIAL COURTS ACT, 2015 R/W SECTION37OF THE ARBITRATION AND CONCILIATION ACT, 1996, PRAYING THAT THIS HON'BLE COURT MAY KINDLY BE PLEASED TO1 CALL FOR RECORDS IN COM. ORIGINAL SUIT NO.1594/2022, PENDING ON THE FILE OF LEARNED LXXXV ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, COMMERCIAL DIVISION, AT BANGALORE.
2. SET ASIDE THE
ORDERS DATED0711.2022 IN IA NO.1/2022, IA NO.03/2022, IA NO.04/2022, IA NO.5/2022, IA NO.6/2022 PASSED BY THE LXXXV ADDITIONAL CITY CIVIL AND SESSIONIS JUDGE, COMMERCIAL DIVISION, AT BANGALORE (CCH-86) IN COMMERCIAL ORIGINAL SUIT NO.1594 OF2022 3. AWARDS COSTS TO THE APPELLANT THROUGHOUT AND4 PASS SUCH OTHER FURTHER
ORDERS AS THIS HON'BLE COURT MAY DEEM FIT, THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN THE INTERESTS OF JUSTICE AND EQUITY. THIS COMMERCIAL APPEAL COMING ON FOR
ORDERS, THIS DAY, G. NARENDAR J., PASSED THE FOLLOWING:
3.
JUDGMENTThe appellants have assailed the order passed by LXXXV Additional City Civil & Sessions Judge, Commercial Division, Bangalore(CCH-86), on I.A. Nos. I to VI in Commercial Original Suit No.1594/2022 dated 07.11.2022 wherein the trial Court issued a direction to respondent No.2 (defendant No.4) to remove and take down the links from it’s platform and to block the social media handle of Indian National congress (@ INC India) and Bharat Jodo Yatra (@ Bharat Jodo) on Twitter, on the ground of Appellants having infringed the copyright of the 1st Respondent/Plaintiff.
2. The appellant herein is the defendant No.2 before trial court and the respondent No.1 is plaintiff. The other respondent Nos.1, 3, 4 and 5 are also defendants before trial court.
3. The plaintiff instituted a suit before the trial court with a prayer to grant a relief of permanent injunction and also mandatory injunction. The plaint pleadings in brief are that, the plaintiff is a registered partnership firm engaged in production, marketing, distribution and sale of 4 sound recordings and cinematography, sale of audio, CD, DVD, purchase of Audios and Videos and Film Digital rights therein. That it is a reputed entity in the sound and music industry. The plaintiff operates its business by use of its trademark "MRT MUSIC". The repository of the plaintiff consists of more than 20,000 songs which the plaintiff owns and control and not limited to copyright. The plaintiff has acquired all the rights of sound recordings of the Block Buster film KGF- Chapter-2. Thereafter, the plaintiff has released the same through various channels and pen drives.
4. It is alleged by the plaintiff that there is a copyright infringement by the defendants 1 to 3. It is pleaded that during the Bharat Jodo Yatra, an initiative of the Indian National Congress, certain video recording of the Yatra and also the leader of the Yatra were shared by the first defendant’s Twitter Handle as well as the Bharat Jodo Twitter Handle. Each video twitter was posted with a background music. That in two videos, the background music is alleged to be similar to the sound track of the movie titled as KGF Chapter- 2. It is alleged by the plaintiff 5 that Indian National Congress social media Handle has used the alleged sound track in two videos and uploaded it to the Indian National Congress Twitter Handle and circulated the said video in an alleged fraudulent manner in order to make a wrongful gain. It is alleged by the plaintiff that the defendants are profiteering and their gains is causing unlawful, unjust and irreparable loss to the plaintiff. The use of copyright work without authorisation and consent is willful and dishonest. Hence, the suit praying and seeking for injunction against infringement of it’s copyright.
5. Alongwith the said suit, plaintiff had filed I.A.No.1 to 6 which are heard by the Commercial Court and the Commercial Court passed an ex-parte order which is under challenge now.
6. I.A.No.3 is filed under Order 39 Rule 1 and 2 r/w 79 of the IT Act with a prayer restraining the defendants 1 to 3 and 5 from infringing or illegally using, the copyrighted work owned by the plaintiff and from illegally using the said work owned by the plaintiff. I.A6No.4 is for direction to defendant No 4 to remove and take down the links from its platform and I.A.5 is with prayer to suspend the social media handle till submission of report. I.A.No.6 is for an order to appoint a Court Commissioner/technical expert, to inspect and conduct an electronic audit of the said twitter-handle, controlled by defendant No.1 to 3. The trial court heard and proceeded to grant an ad-interim temporary and mandatory injunction, ex-parte, which is under challenge before this Court.
7. Heard learned Senior counsel Sri. Abhishek Manu Singhvi along with senior counsels Sri. Udaya Holla and Sri. A.S. Ponnanna representing Smt. Leela P., learned counsel for the appellants and learned Senior counsel Sri. Srinivas V. Raghavan for Sri. Narasimhan S. Pranav Kumar on behalf of caveator/respondent No.1.
8. The learned Senior counsel would contend that the order cannot stand the test of law and in one stroke the trial Court has virtually pulled the defendant Nos.1 to 3 from out of all social media platforms, more particularly on 7 the twitter social media platform and the relief granted is wholly disproportionate to the infringement alleged. That the allegation is that an audio clip of just 45 seconds, over which the plaintiff claims copyrights, is alleged to have been synchronized and mixed, with the video produced by the first defendant and telecast on the social media platforms. That the first video and audio is by a national political party and the second one is of a program initiated by the first defendant and the yatra undertaken by the third defendant with various members of the party participating in it. That the yatra has commenced from Kanyakumari and is to culminate at Kashmir and that the said initiative is being video graphed and the same is telecast on various social media platforms including on the social media platform called the Twitter i.e., the 4th defendant. He would submit that even assuming for argument sake that there has been an infringement the trial Court could not have granted a relief in the nature it has now done. The trial Court has traveled beyond reliefs prayed for in the suit itself. 8
9. Secondly he would submit that the fact remains that the video clip has not been used for any commercial purpose and thirdly he would submit that the suit appears to be one with an ulterior motive. Lastly he would contend that the plaintiff, though claims to be aware of the usage since 11th October, 2022 as stated in the plaint, the suit is filed on the 2nd of November, 2022 and listed before the Court on 5th of November, 2022 for the first time and thereafter adjourned to 07.11.2022. That these short facts and dates would clearly narrate that there has been no urgency which necessitated the Court to dispense with the mandatory provisions of Rule 3 of Order XXXIX of the C.P.C. and the proviso to Rule 3, which clearly mandates that the Court should record reasons for dispensing with notice for granting an ex-parte injunction. That in the instant case, the trial Court has, apart from recording the pleading has not recorded even a single reason for dispensing notice and granting an ex-parte injunction and that too an ex-parte injunction which is in the nature of a mandatory injunction. 9
10. The learned Senior counsel would take the court through the order dated 07.11.2022 which commences on running page 27 of the appeal papers. The learned Senior counsel would take us through the order and in particular to the second sentence on ink page 27 which reads as under: “Considering the urgency pleaded pre- institution mediation procedure is dispensed with. Accordingly, the I.A.No.1 is allowed.
11. He would further take the Court through the impugned order and would submit that there is absolutely no reason justifying the Court’s decision to dispense with notice to the defendants.
12. The learned Senior counsel would take the Court through Rule 3 of Order XXXIX of the C.P.C. and then would take the Court through para 9 of the ruling reported in 2014 SCC OnLine Kar 7191 (Vedant Fashions Pvt. Ltd., vs. Smt. Rajul Devi).
13. He would further place reliance on another ruling of this Court rendered in the case of Mr. R K Jain vs. P G Chacko reported in AIR2013Kar 142 and would take 10 the Court through paragraphs 3, 7, 8, 9 and 11. He would place reliance on one more ruling of this court rendered in the case of Paramvah Studios Pvt. Ltd., and another vs. Lahari Recording Company reported in ILR2017KAR1795and would take the Court through paragraphs 16, 17 and 18.
14. The learned Senior counsel would contend that in the absence of reasons being recorded, for dispensing with notice to the opposite party before granting injunction, the impugned order is in the teeth of the law laid down by this Court and thereby stands vitiated. He would therefore pray that the impugned order be set aside on that short ground alone.
15. Per contra, the learned Senior counsel appearing on behalf of the first respondent would submit that the appeal itself is not maintainable. That, the appellants are before this Court as against an ex-parte order and that a Single Judge of this Court has distinguished A Venkatasubbiah’s case and has held that an appeal can be preferred only if the trial Court fails to 11 dispose of the application within 30 days and in this regard he would place reliance on the order of the learned Single Judge, rendered in the case of Procter and Gamble Home Products Private Limited vs. Marico Ltd., and others, in MFA No.8990/2017. He would also place reliance on the ruling rendered by the Hon’ble Apex Court in the case of Kandla Export Corporation and another vs. OCI Corporation and another reported in (2018) 14 SCC715to buttress his arguments.
16. After hearing the learned Senior Counsels on both sides, the following points arise for consideration of this Court:- 1. Whether the Appeal is maintainable?.
2. Whether the trial court is justified in granting ex-parte interim order in the nature of a mandatory injunction, without recording any reasons; 3. Whether the Trial Court was justified in granting ex-parte ad-interim injunction without recording reasons to demonstrate 12 that object of granting of ex-parte order of ad-interim injunction could be defeated by delay if the notice of interim application for injunction is not dispensed as provided under Order 39 Rule 3 of the CPC?. Point No.1:- 17. Though the argument on maintainability has been addressed by learned Senior Counsel for respondent No.1, in the light of the observations made by the Hon'ble Apex Court in the ruling of A. Venkata Subbaiah Naidu v. S. Chellappan and Others, (2000) 7 SCC695 particularly in paras 11, 12 and 13, we are not convinced by the submissions made by learned counsel for respondent No.1 regarding maintainability of the appeal, more so, in the light of the provisions of section 13(1A) of The Commercial Courts Act, 2015 which speaks of not only the judgment but also an order, being appealable.
18. The learned Single Judge has held that an ex-parte order of injunction becomes appealable only in the event the application is not finally disposed of within 30 13 days. In this regard reliance is placed on Rule 3A by the learned Single Judge and it is pertinent to note that the judgment is rendered prior to coming into force of the Amendment to Section 13 of the Act of 2015. Order 39 Rule 3A of the C.P.C. reads as under: “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.
19. Order XLI Rule 1 reads as under:
1. Form of appeal. What to accompany memorandum (1) Every appeal shall be preferred in the form of a memorandum signed by the appellant or his pleader and presented to the Court or to such officer as it appoints in this behalf. The memorandum shall be accompanied by a copy of the 1[judgment].: Order XLIII R(1)(r), reads as under “(r) an order under rule 1, rule 2 [rule 2A]., rule 4 or rule 10 of Order XXXIX;” 14 20. Section 13(1A) of the Commercial Courts Act, 2015 reads as under: “13. Appeals from decrees of Commercial Courts and Commercial Divisions.—(1) Any person aggrieved by the judgment or order of a Commercial Court below the level of a District Judge may appeal to the Commercial Appellate Court within a period of sixty days from the date of judgment or order. (1A) Any person aggrieved by the judgment or order of a Commercial Court at the level of District Judge exercising original civil jurisdiction or, as the case may be, Commercial Division of a High Court may appeal to the Commercial Appellate Division of that High Court within a period sixty days from the date of the judgment or order: Provided that an appeal shall lie from such orders passed by a Commercial Division or a Commercial Court that are specifically enumerated under Order XLIII of the Code of Civil Procedure, 1908 (5 of 1908) as amended by this Act and section 37 of the Arbitration and Conciliation Act, 1996 (26 of 1996).
21. Learned counsel for the respondent No.1 has also placed reliance on the ruling of the Hon'ble Apex Court in Kandla Export Corporation and Another v. OCI15Corporation and Another, (2018) 14 Supreme Court Cases 715 alongwith the judgment of this Court in the case of Procter & Gamble Home Products Private Limited v. Marico Limited and Ors. in MFA No.8990/2017 dated 30.11.2017 interpreting A. Venkatasubbiah Naidu's case and holding that the right of appeal can be exercised only in the event of Interlocutory Application not being disposed of within 30 days.
22. Reliance by the learned Senior counsel for respondent No.1 on the decision rendered in Kandla Export Corporation case is of no avail. It is seen that the exposition of law resulting in the observations in paragraph No.14 are pursuant to appreciation of the unamended provisions of Section 13 of the Commercial Courts Act, 2015. The judgment in Kandla’s case was pronounced on 07-02-2018 and the amendments to Section-13 came about on 03-05-2018.
23. Section 13, prior to the amendment, read as under:- “13. Appeals from decrees of Commercial Courts and Commercial Divisions.- 16 (1) Any person aggrieved by the decision of the Commercial Court or Commercial Division of a High Court may appeal to the Commercial Appellate Division of that High Court within a period of sixty days from the date of judgment or order, as the case may be: Provided that an appeal shall lie from such orders passed by a Commercial Division or a Commercial Court that are specifically enumerated under Order 43 of the Code of Civil Procedure, 1908 (5 of 1908) as amended by this Act and Section 37 of the Arbitration and Conciliation Act, 1996. (2) Notwithstanding anything contained in any other law for the time being in force or Letters Patent of a High Court, no appeal shall lie from any order or decree of a Commercial Division or Commercial Court otherwise than in accordance with the provisions of this Act.
24. Section 13 pursuant to Amendment Act (28 of 2018) underwent changes. Sub-section (1) came to be substituted and sub-section (1A) and the first proviso to sub-section also came to be inserted and reads as under:- “13. Appeals from decrees of Commercial Courts and Commercial Divisions.—(1) Any person aggrieved by the judgment or order of a Commercial Court below the level of a District Judge may appeal 17 to the Commercial Appellate Court within a period of sixty days from the date of judgment or order. (1A) Any person aggrieved by the judgment or order of a Commercial Court at the level of District Judge exercising original civil jurisdiction or, as the case may be, Commercial Division of a High Court may appeal to the Commercial Appellate Division of that High Court within a period sixty days from the date of the judgment or order: Provided that an appeal shall lie from such orders passed by a Commercial Division or a Commercial Court that are specifically enumerated under Order XLIII of the Code of Civil Procedure, 1908 (5 of 1908) as amended by this Act and section 37 of the Arbitration and Conciliation Act, 1996 (26 of 1996).” (2) Notwithstanding anything contained in any other law for the time being in force or Letters Patent of a High Court, no appeal shall lie from any order or decree of a Commercial Division or Commercial Court otherwise than in accordance with the provisions of this Act.
25. From a reading of the above, it is seen that sub-section (1) came to be amended by way of substitution and sub-section (1A) and the proviso came to be introduced by the said amendment. In that view, 18 reliance on the Kandla Export Corporation case is of no avail to respondent No.1 and does not advance the case of the respondent regarding maintainability of the appeal.
26. In view of the unambiguous provisions of Section 13(1A) of the Commercial Courts Act, the observations of the learned Single Judge that the ex-parte orders becomes appealable orders only when the appeal has not been finally disposed of within 30 days can no more said to be the law on the point. The right of the appeal having been vested in a person aggrieved, under the above provision, and the finding have been rendered prior to amendment to the provisions of Section 13(1A) of the Commercial Courts Act and in that view we disagree with the findings of the learned Single Judge and hold the appeal to be maintainable in view of the provisions of Section 13(1A) of the Commercial Courts Act. We answer point No.1 accordingly. Point No.2.
27. Learned Senior counsel appearing on behalf of the respondent No.1 would fairly admit that the order impugned and passed on I.A.No.4/2022 is virtually in the 19 nature of a mandatory injunction i.e., that part of the order directing removing and taking down of the links and blocking of the social media account of the following accounts:- https://twitter.com./INCIndia. https://twitter.com/Bharatjodo 28. In this regard we make a useful reference to the law laid down by the Hon’ble Apex Court and the principles governing the grant of an Ad-Interim Ex-Parte mandatory injunction.
29. The position and the principles governing grant of Ad-Interim Ex-Parte mandatory injunctions is expounded by the Hon’ble Apex Court in the case of Samir Narain Bhojwani vs. Aurora Properties and Investments and Another, reported in (2018) 17 SCC203 wherein at paragraph 24 it is observed as under: “24. That apart, the learned Single Judge as well as the Division Bench have committed fundamental error in applying the principle of moulding of relief which could at best be resorted to at the time of consideration of final relief in the main suit and not at an interlocutory stage. The nature of order passed against the appellant is undeniably a 20 mandatory order at an interlocutory stage. There is marked distinction between moulding of relief and granting mandatory relief at an interlocutory stage. As regards the latter, that can be granted only to restore the status quo and not to establish a new set of things differing from the state which existed at the date when the suit was instituted. This Court in Dorab Cawasji Warden v. Coomi Sorab Warden, has had occasion to consider the circumstances warranting grant of interlocutory mandatory injunction. In paras 16 & 17, after analysing the legal precedents on the point as noticed in paras 11- 15, the Court went on to observe as follows: (SCC pp. 126-27) “16. The relief of interlocutory mandatory injunctions are thus granted generally to preserve or restore the status quo of the last non-contested status which preceded the pending controversy until the final hearing when full relief may be granted or to compel the undoing of those acts that have been illegally done or the restoration of that which was wrongfully taken from the party complaining. But since the granting of such an injunction to a party who fails or would fail to establish his right at the trial may cause great injustice or irreparable harm to the party against whom it was granted or alternatively not granting of it to a party who succeeds or would succeed may equally cause great 21 injustice or irreparable harm, courts have evolved certain guidelines. Generally stated these guidelines are: (1) The plaintiff has a strong case for trial. That is, it shall be of a higher standard than a prima facie case that is normally required for a prohibitory injunction. (2) It is necessary to prevent irreparable or serious injury which normally cannot be compensated in terms of money. (3) The balance of convenience is in favour of the one seeking such relief.
17. Being essentially an equitable relief the grant or refusal of an interlocutory mandatory injunction shall ultimately rest in the sound judicial discretion of the court to be exercised in the light of the facts and circumstances in each case. Though the above guidelines are neither exhaustive nor complete or absolute rules, and there may be exceptional circumstances needing action, applying them as prerequisite for the grant or refusal of such injunctions would be a sound exercise of a judicial discretion.” (emphasis supplied) 30. The Hon’ble Apex Court has in the case of Hammad Ahmed vs. Abdul Majeed and Others, reported in 22 (2019) 14 SCC1has further reiterated the law and held in Paragraphs 57 and 58, which reads as under:- “57. The grant of mandatory injunction is not prohibited even in Samir Narain Bhojwani case. It has held that unless clear and prima facie material justifies a finding that status quo has been altered by one of the parties the order in mandatory injunction can be given.
58. The ad interim mandatory injunction, is to be granted not at the asking but on strong circumstance so that to protect the rights and interest of the parties so as not to frustrate their rights regarding mandatory injunction. In Deoraj v. State of Maharashtra, this Court held that Court would grant such an interim relief only if it is satisfied that withholding of it would prick the conscience of the Court and do violence to the sense of justice, resulting in injustice being perpetuated throughout the hearing, and at the end the Court would not be able to vindicate the cause of justice. Therefore, in appropriate case, ad interim injunction in mandatory form can be granted. The Court held as under : (SCC p. 703, para
12) “12. Situations emerge where the granting of an interim relief would tantamount to granting the final relief itself. And then there may be converse cases where withholding of an interim relief would tantamount to dismissal of the main petition itself; 23 for, by the time the main matter comes up for hearing there would be nothing left to be allowed as relief to the petitioner though all the findings may be in his favour. In such cases the availability of a very strong prima facie case — of a standard much higher than just prima facie case, the considerations of balance of convenience and irreparable injury forcefully tilting the balance of the case totally in favour of the applicant may persuade the court to grant an interim relief though it amounts to granting the final relief itself. Of course, such would be rare and exceptional cases. The court would grant such an interim relief only if satisfied that withholding of it would prick the conscience of the court and do violence to the sense of justice, resulting in injustice being perpetuated throughout the hearing, and at the end the court would not be able to vindicate the cause of justice. Obviously such would be rare cases accompanied by compelling circumstances, where the injury complained of is immediate and pressing and would cause extreme hardship. The conduct of the parties shall also have to be seen and the court may put the parties on such terms as may be prudent.” [emphasis by this court].
31. In our opinion, the reliefs granted do not advance the case of the plaintiff, that the reliefs are sought with the intention of ensuring preservation of the material 24 which would demonstrate infringement and as to how the defendants were able to invade the copyrighted property of the respondent No.1. That apart as held by the Hon’ble Apex Court the Trial Court has not recorded the reasons for granting an ex-parte mandatory injunction. There is absolutely no discussion as to why such an ex-parte mandatory injunction should be granted. The Trial Court has granted the relief for the mere asking.
32. In our considered opinion, the issue has narrowed down to the correctness of the order directing blocking of the social media, which in our prima-facie opinion, impinges on the right of expression guaranteed under the Constitution. It also appears that the interim reliefs prayed are even more expansive and beyond the main reliefs sought for in the suit itself. That if the handles are taken down or removed, nothing would be available rather no social media platform would be available to the defendants to propagate about their party and activities. If viewed from this angle the balance of convenience tilts in favour of the defendant. That apart, the infringement complained off is a 45 second audio/music set to have 25 been synchronized by defendants 1 to 3, with the video portraying the 3rd defendant. In our prima-facie opinion, none of the three guidelines expounded by the Hon’ble Apex Court are either complied with or get attracted in the facts of the case. In our opinion, the loss, if any, could have been compensated by awarding damages also. Point No.3:- 33. The orders have been also challenged before the Court on the ground that it is contrary to the law laid down and consistently followed by this Court, holding that the provisions of Order XXXIX Rule 3 of the CPC are mandatory and not directory. The objection was on the ground that, the Commercial Court while deeming it necessary to grant ex-parte interim order has failed to appreciate Rule 3 of the CPC and has not recorded reasons for dispensing with notice, prior to considering the application under Order XXXIX Rule 1 and 2 CPC. Emphasis is laid on the Proviso to R.3, which mandates that reasons be recorded.
34. The position is no more res-integra. This Court in a judgment authored by her Ladyship Mrs. Justice B.V. 26 Nagarathna (as she then was) in the case of Vedant Fashions Pvt. Ltd., v. Smt. Rajul Devi, 2014, SCC Online Kar 7191, has categorically observed and held at paras 9 and 12 as under:- “9. I have perused the impugned order which reads as under: “The plaintiff being proprietrix carrying on business under the name and style M/s. Manyavar No.21/22, Sharma Complex, 1st Floor, DS. Lane, Chickpet, Bangalore, filed this suit for perpetual injunction against the defendant from using and infringing and passing of trade mark “MANYAVAR” in relation to textile clothing, including textile piece goods, suitings, shirting, tissues, readymade garments or retailing of textile or readymade garments. The plaintiff filed an application under order 39 rule 1 & 2 prays for an order of exparte ad-interim temporary injunction against the defendant. Plaintiff's GPA holder stated in the affidavit that they have been using the trade mark ‘MANYAVAR’ since 1991 and prior use, they registered the trade mark under registration No.827364 and 1765908. As per the affidavit sworn to by the GPA Holder, defendant using the trade mark “MANYAVAR” in doing cloth business which amounts to infringement. Plaintiff has produced the brouchers at page 34 to 43 and copy of purchase receipts, invoices and trade mark 27 certificates and paper cuttings at page No.46 to 206. The paper cuttings of Times of India dated 25/04/2014 shows the advertisement given by the defendant in the trade mark MANYAVAR to the outlets of its business. The documents at page 208 to 231 at this stage disclose that the plaintiff has been using the trade MANYAVAR with registration. A perusal of aforesaid documents at this stage the plaintiff has made out prima-facie case for grant of ad-interim exparte temporary injunction by dispensing with the notice to the defendant on I.A. 1, as the very object of granting injunction would be defeated by delay. Therefore, issue ad-interim exparte temporary injunction against the defendants restraining them, their successors, assignees, representatives associates, subsidiaries, sister concerns, holding company investors, dealers, agents and servants or anybody claiming through them from using the trade mark MANYAVAR or any other trade mark which is identical or deceptively similar with plaintiff's trade mark MANYAVAR infringing the plaintiff's trade mark registration No.827364 in Class-24 and No.1765908 in Ciass-35 and passing plaintiff's trade mark MANYAVAR in relation to readymade garments and services relating to textile piece goods and ready made garments or any other allied or cognate goods/services till next date. Plaintiff to comply with the provisions of Order 39 rule 3(A) of CPC. Issue suit summons and notice on 28 I.A.I and 2 to the defendant returnable by 31.7.2014” While the application seeking temporary injunction has been filed under Order XXXIX Rules 1 and 2, the grant of an exparte order of temporary injunction dispensing with notice to the defendant is envisaged under Order XXXIX of Rule 3. The said Rule reads as under: ‘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 sent 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; 29 (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” A bare reading of the said rule makes it clear that normally, the court, before granting an injunction, direct notice of the application to be given to the opposite party. The exception is, where it appears that the object of granting injunction would be defeated by delay, in such an event, the proviso which has been inserted with effect from 01/02/1977 comes into operation, where the court is empowered to grant an ad interim injunction dispensing with notice provided reasons are recorded for its opinion to the effect that the object of granting the injunction would be defeated by delay if notice is to be served on the respondent. The impugned order is extracted supra in order to ascertain as to whether the trial court had complied with the requirements of the proviso while dispensing with the notice to the defendant while grant an exparte order of temporary injunction. From a reading of the impugned order, it is clear that, nowhere reasons have been recorded as to why the trial Court was of the opinion that the injunction had to be 30 granted by dispensing notice to the respondents or that non-grant of an injunction would be defeated by delay if notice is to be ordered on respondents. The impugned order is bald, laconic and bereft of any reason. The learned Trial Judge has not even made a brief reference to the facts of the case to arrive at a conclusion that there is a prima facie case for consideration and about balance of convenience being in favour of the plaintiff and whether she would suffer any reparable loss in case of refusal of exparte injunction. Mechanically, the impugned order has been passed. In that view of the matter, the impugned order has to be quashed on the short ground of there being non-compliance of Rule 3 of Order XXXIX of the CPC. It is noted form the impugned order that the next date of hearing is 31.07.2014.
12. In the result, the impugned order is quashed. The parties are directed to appear before the trial court without insisting on any separate notice from that Court on 23/07/2014. The petitioner herein who is the defendant in the suit to file the written statement and objections on the said date.
35. A Learned Single Judge of this Court in the case of Mr. R.K. Jain v. Sri. P.G. Chacko, AIR2013Kar 31 142 has been pleased to observe and hold at paras 3, 6, 7, 8, 9 and 11 as under:- 3. Along with the plaint, I.A. No.1/2013, under Order 39, Rules 1 and 2 CPC, to giant an ad- interim exparte order of temporary injunction restraining the defendant, his employees, concerned, companies, agents or any person claiming through or under the defendant from printing, publishing or spreading in any manner whatsoever either in Excise Law Times or any other report or through any other reporter or any print media or otherwise, any defamatory statement or material calculated to defame the plaintiff in any manner whatsoever having been filed, the Trial Judge passed an order dated 09.01.2013. The same being material is extracted hereinbelow. “In this case, the learned Counsel appearing for the plaintiff is filed I.A. 1 U/O. 39 Rules 1 and 2 of CPC seeking TI against the defendant. I heard the learned Counsel and perused IA No.1 along with accompanying affidavit and relevant documents on record. It is the contention of Counsel for the plaintiff that the defendant may again publish defamatory statement or material against the plaintiff. In view of that I deem, it is just and proper, at this stage of the case, to grant temporary injunction. 32 Hence, I proceed to pass the following:
ORDERTemporary Injunction is hereby granted in favour of the plaintiff against the defendant restraining him and anybody else under him from printing, publishing or spreading any defamatory statement or material circulated (excise Law times) or any other reporter or through any print media to defame the plaintiff in any manner until next date hearing. Plaintiff to comply relevant provisions of law if any (Order 39, Rule 3). Issue emergent summons and notice on LA. 1 to the defendant as per PF memo returnable by 13.03.2013.” (underlining is by me) 6. Order 39, Rule 3 CPC reads as follows: “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:
33. [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].
7. The said provision is not obligatory, but is mandatory. The proviso inserted by Act No.1/1976 makes it clear that where a Court proposes to grant an injunction Without giving notice of the application to the opposite party, being of the opinion that the object of granting injunction itself would be defeated by delay, shall record the reasons why an exparte 34 order of injunction is being passed. It is for the said reason that it is mandatory for a Court granting an order of exparte injunction to record reasons.
8. In the case of United Commercial Bank v. Bank of India, (1981) 2 SCC766 in the matter of grant of injunction by a Court, Apex Court has held as follows:— “51. In the instant case, the High Court has assumed that the plaintiff had a prima facie case. It has not touched upon the question where the balance of convenience lay, nor has it dealt with the question whether or not the plaintiffs would be put to irreparable loss if there was no injunction granted. In dealing with the prima facie case, the High Court assumes that the appellant was in breach. There is no basis for this assumption at all. The High Court in this case has pre-judged the whole issue by holding that the appellant could not unilaterally impose the condition of payment ‘under reserve’, nor was it justified in holding that the documents were ‘clean’. The question whether the appellant was in breach is an issue to be tried in the suit. The question whether the documents were ‘clean’ or ‘unclean’, is a vexed question on which no opinion could be expressed at this stage. It is also premature at this stage to assume that there was no ‘due presentation’ of the bills of exchange and their refusal. 35
52. No injunction could be granted under Order 39, Rules 1 and 2 of the Code unless the plaintiffs, establish that they had a prima facie case, meaning thereby that there was a bona fide contention between the ‘parties or a serious question to be tried. The question that must necessarily arise is whether in the facts and circumstances of the case, there is a prima facie case and, if so, as between whom?. In view of the legal principles applicable, it is difficult for us to say on the material on record that the plaintiffs have a prima facie case. It cannot be disputed that if the suit were to be brought by the Bank of India, the High Court would not have granted any injunction as it was bound by the terms of the contract. What could not be done directly cannot be achieved indirectly in a suit brought by the plaintiffs.
9. In the case of Shiv Kumar Chadha v. Municipal Corporation of Delhi, (1993) 3 SCC161 in the matter of grant of exparte injunction, Apex Court has held as follows: “34. The imperative nature of the proviso has to be judged in the context of Rule 3 of Order 39 of the Code. Before the Proviso aforesaid was introduced, Rule 3 said “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.” The proviso was introduced to provide a 36 condition, where Court proposes to grant an injunction without giving notice of the application to the opposite party, being of the opinion that the object of granting injunction itself shall be defeated by delay. The condition so introduced is that the Court “shall record the reasons” why an ex parte order of injunction was being passed in the facts and circumstances of a particular case. In this background, the requirement for recording the reasons for grant of ex parte injunction, cannot be held to be a mere formality. This requirement is consistent with the principle, that a party to a suit, who is being restrained from exercising a right which such patty claims to exercise either under a statute or under the common law, must be informed why instead of following the requirement of Rule 3, the procedure prescribed under the proviso has been followed. The party which invokes the jurisdiction of the Court for grant of an order of restraint against a party, without affording an opportunity to him of being heard, must satisfy the Court about the gravity of the situation and Court has to consider briefly these factors in the ex parte order. We are quite conscious of the fact that there are other statutes which contain similar provisions requiring the Court or the authority concerned to record reasons before exercising power vested in them. In respect of some of such provisions it has been held that they are required to be complied with but non-compliance therewith will not vitiate the order so passed. But same cannot be said in 37 respect of the proviso to Rule 3 of Order 39. The Parliament has prescribed a particular procedure for passing of an order of injunction without notice to the other side, under exceptional circumstances. Such ex parte orders have far reaching effect, as such a conditions has been imposed that Court must record reasons before passing such order. If it is held that the compliance of the proviso aforesaid is optional and not obligatory, then the introduction of the proviso by the Parliament shall be a futile exercise and that part of Rule 3 will be a surplusage for all practical purposes. Proviso to Rule 3 of Order 39 of the Code, attracts the principle, that if a statute requires a thing to be done in a particular manner, it should be done in that manner or not all. This principle was approved and accepted in well-known cases of Taylor v. Taylor, (1875) 1 Ch. D. 426, Nazir Ahmed v. Emperor, AIR1936PC253(2). This Court has also expressed the same view in respect of procedural requirement of the Bombay Tenancy and Agricultural Lands Act in the case of Ramachandra Keshav Adke v. Govind Joti Chavare, (1975) 1 SCC559: AIR1975SC915 35. As such whenever a Court considers it necessary in the facts and circumstances of a particular case to pass an order of injunction without notice to other side, it must record the reasons for doing so and should take into consideration, while passing an order of injunction, 38 all relevant factors, including as to how the object of granting injunction itself shall be defeated if an ex parte order is not passed. But any such ex parte order should be in force upto a particular date before which the plaintiff should be required to serve the notice on the defendant : concerned.
11. The impugned order, when perused, it is crystal clear that it is bereft of any reason. Trial Judge without reference to any material has assumed that the plaintiff has a prima facie case. He has not touched upon the question where the balance of convenience lies, nor has he dealt with the question, whether the plaintiff would be put to irreparable loss, if no injunction is granted. He has not adverted to the other elements, such as acquiescence and whether the plaintiff has approached the Court without any delay and the finding recorded, noticed supra, is perverse and capricious. Mechanically, temporary injunction has been granted. The ratio of the decisions, noticed in paras 8, 9 & 10 (supra), has grossly been breached.
36. Another learned Single Judge of this Court in the ruling of Paramvah Studios Pvt. Ltd., and Another v. Lahari Recording Company, ILR2017KAR1795has also observed and held at paras 16, 17 and 18 as under:- 39 “16. The provisions of Order XXXIX Rule 3 proviso of the Code of Civil Procedure clearly depicts that before granting ex-parte temporary injunction, the Trial Court should record the reasons as to why the notice to the defendants has been dispensed with. In the present case, no such reasons are assigned by the Trial Court for dispensation of notice/ summons to defendants/petitioners before passing the impugned order which is erroneous and contrary to the provisions of Order XXXIX Rule 3 of the Code of Civil Procedure. The requirement of giving reasons for the opinion of the Court that the object of granting the injunction would be defeated by delay, as laid down in the proviso, is mandatory and if it is not complied with, the order is illegal.
17. The Hon'ble Supreme Court in the case of Morgan Stanley Mutual Fund v. Kartick Das [(1994) 4 SCC225, while considering the principles which govern the grant of exparte injunction by a Court, as follows: “36. As a principle, ex-parte injunction could be granted only under exceptional circumstances. The factors which should weigh with the Court in the grant of exparte injunction are:— (a) whether irreparable or serious mischief will ensue to the plaintiff; (b) whether the refusal of ex-parte injunction would involve greater injustice than the grant of it would involve; 40 (c) the court will also consider the time at which the plaintiff first had notice of the act complained so that the making of improper order against a party in his absence is prevented; (d) the Court will consider whether the plaintiff had acquiesced for sometime and in such circumstances it will not grant ex-parte injunction; (e) the Court would expect a party applying for ex- parte injunction to show utmost good faith in making the application. (f) even if granted, the ex-parte injunction would be for a limited period of time. (g) General principles like primafacie case, balance of convenience and irreparable loss would also be considered by the Court.
18. The Hon'ble Supreme Court while considering the provisions of Order XXXIX Rule 3 of Code of Civil Procedure in the case of Shiv Kumar Chadha v. Municipal Corporation of Delhi (supra), at para Nos. 34 and 35 has held as under: “34. The imperative nature of the proviso has to be judged in the context of Rule 3 of Order 39 of the Code. Before the proviso aforesaid was introduced, Rule 3 said “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, 41 direct notice of the application for the same to be given to the opposite-party”. The proviso was introduced to provide a condition, where Court proposes to grant an injunction without giving notice of the application to the opposite-party, being of the opinion that the object of granting injunction itself shall be defeated by delay. The condition so introduced is that the Court “shall record the reasons” why an ex-parte order of injunction was being passed in the facts and circumstances of a particular case. In this background, the requirement for recording the reasons for grant of exparte injunction, cannot be held to be a mere formality. This requirement is consistent with the principle, that a party to a suit, who is being restrained from exercising a right which such party claims to exercise either under a statute or under the common law, must be informed why instead of following the requirement of Rule 3, the procedure prescribed under the proviso has been followed. The party which invokes the jurisdiction of the Court for grant of an order of restraint against a party, without affording an opportunity to him of being heard, must satisfy the Court about the gravity of the situation and Court has to consider briefly these factors in the ex- parte order. We are quite conscious of the fact that there are other statutes which contain similar provisions requiring the Court or the authority concerned to record reasons before exercising power vested in them. In respect of some of such provisions it has been held that 42 they are required to be complied with but non- compliance therewith will not vitiate the order so passed. But same cannot be said in respect of the proviso to Rule 3 of Order 39. The Parliament has prescribed a particular procedure for passing of an order of injunction without notice to the other side, under exceptional circumstances. Such ex-parte orders have far-reaching effect, as such a condition has been imposed that Court must record reasons before passing such order. If it is held that the compliance with the proviso aforesaid is optional and not obligatory, then the introduction of the proviso by the Parliament shall be a futile exercise and that part of Rule 3 will be a surplusage for all practical purposes. Proviso to Rule 3 of Order 39 of the code, attracts the principle, that if a statute requires a thing to be done in a particular manner, it should be done in that manner or not all. This principle was approved and accepted in well-known cases of Taylor v. Taylor and Nazir Ahmed v. Emperor. This Court has also expressed the same view in respect of procedural requirement of the Bombay Tenancy and Agricultural Lands Act in the case of Ramchandra Keshav Adke V. Govind Joti Chavare.
35. As such whenever a Court considers it necessary in the facts and circumstances of a particular case to pass an order of injunction without notice to other side, it must record the reasons for doing so and should take into consideration, while passing an order of injunction, 43 all relevant factors, including as to how the object of granting injunction itself shall be defeated if an ex-parte order is not passed. But any such ex parte order should be in force up to a particular date before which the plaintiff should be required to serve the notice on the defendant concerned. In the Supreme Court Practice 1993, Vol. 1, at page 514, reference has been made to the views of the English Courts saying: “Ex-parte injunctions are for cases of real urgency where there has been a true impossibility of giving notice of motion…… An ex-parte injunction should generally be until a certain day, usually the next motion day…….”
37. In that view of the matter, the order dated 07.11.2022 passed on I.A. Nos.3 to 6 by learned LXXXV Additional City Civil & Sessions Judge, Commercial Division, Bangalore(CCH-86) in Commercial Original Suit No.1594/2022 being bereft of any reasons, much less, cogent or sustainable reasons, we are of the opinion that the appeal deserves to be partly allowed with the exception of concession made by learned Senior Counsels for the parties. 44
38. Learned Senior Counsel for the appellant Sri. Abhishek Manu Singhvi submitted that without prejudice to the appellant's contention, the appellant shall by noon tomorrow i.e., 09.11.2022, endeavour to remove the allegedly offending material from its Twitter Handle and all other forms of social media and has no intention whatsoever to use the same in future.
39. The learned Senior Counsel for the Caveator further submitted that the appeal could be disposed of and the matter could be remitted back for reconsideration by the trial court in view of the challenge to the nature of order passed which is in the nature of mandatory injunction which in our prima facie opinion virtually impinges on the fundamental rights guaranteed under the Constitution of India.
40. In view of the statement made by learned Senior Counsel Sri. Abhishek Manu Singhvi for the appellant that he would provide screen shots of their Twitter Handle and also such other media before the offending material is removed, in our considered opinion, 45 the submissions of learned Senior Counsels for the appellant appears to be fair. In response, the learned senior counsel appearing on behalf of the first respondent would fairly submit that concessions be placed on record and matter be remitted back for consideration in accordance with law.
41. Be that as it may, we are not delving deeper into the issues. In view of the submissions recorded by us supra and in view of the nature of the relief we grant. This Court answers all the points for consideration against the first respondent and in favour of the Appellant.
42. Accordingly, we pass the following:-
ORDERThe appeal is allowed-in-part. The impugned order dated 07.11.2022 passed I.A.Nos.3/2022, 4/2022, 5/2022 and 6/2022 by learned LXXXV Additional City Civil & Sessions Judge, Commercial Division, Bangalore(CCH-86) in Commercial Original Suit No.1594/2022 is set-aside, subject to the condition that the appellant and respondent Nos.3 and 4 shall remove the offending content from their 46 social media platform i.e., Twitter, Facebook, YouTube and Instagram. The interlocutory applications I.A.No.3/2022, 4/2022, 5/2022 and 6/2022 are remitted back to the trial Court for consideration afresh. This order shall not come in the way of plaintiff making any request to the 4th defendant to protect its copyrights. In view of disposal of the main matter, all pending IA’s stand disposed of. Sd/- JUDGE Sd/- JUDGE *mn/ykl