JUDGMENT
H.H. Mehta, J.
1. The original defendants of Civil Suit No. 4857 of 1995 pending on the file of Court No. 13, City Civil Court, Ahmedabad, have by preferring this appeal under Section 104 read with Order 43, Rule 1(r) of the Code of Civil Procedure, 1908, challenged an order dated 22-7-1995 ‘passed below application Ex. 6 by which the defendant No. 2, its agents and employees etc. have been restrained temporarily till final disposal of the suit from manufacturing, marketing its drugs, medicines, or pharmaceutical preparations under the tread mark “POLYMOX” and also from advertising the drugs, medicines and pharmaceutical preparations under the impugned trade mark “POLYMOX”, and also from using the impugned trade mark with identical and/or deceptively similar other trade mark.
2. The facts leading to this present appeal in a nutshell are as follows :
2.1. The plaintiff is a company incorporated under the Companies Act, 1956 carrying on the business of manufacturing and marketing drugs, medicines and pharmaceutical preparations under the name and style of Medico Interpharm Limited.
2.2. Defendant No. 1 is a concern engaged in the business of selling medicines and provision and is dealing in the medicines of defendant No. 2. Defendant No. 2 is a manufacturer, while defendant No. 1 is its agents through which defendant No. 2 sells its products. Plaintiff is a proprietor of a number of trade marks and “POLYMOX” is one of those. The plaintiff has started using the trade mark since 8th July, 1981. The plaintiff has applied for registration of said trade mark “POLYMOX” under the provisions of the Trade and Merchandise Marks Act 1958 in class 5 in respect of pharma-ceuticals and medical preparations and same is pending for the registration before the Trade Marks Registry. However, the plaintiff is using the said trade mark since 1981. The plaintiff is the proprietor and enjoying exclusive rights to use the said trade mark “POLYMOX” as its trade mark under the provisions of the Trade and Merchandise Marks Act. 1958. In para 8 of the plaint, the plaintiff has given figures of sale of their products “POLYMOX” yearwise right from the year 1981-82 to 1992-93. The plaintiff has invented and coined the word “POLYMOX” by combining POLY means Multiple more than one and another word “Amoxycillin” which is having meaning to treat Multiple infection by MOX.
2.3. The defendants are marketing its product under the alleged trade mark “POLYMOX”. The plaintiff received the letters from the defendant No. 2 and also a notice from M/s. Paramount Trade Marks Companies, patent and trade marks Attorneys. In reply to said notice, the plaintiff has served registered notice through their Advocates to the defendant No. 2, directing to stop use of trade mark “POLYMOX” as a prior user.
2.4. Till the date of filing of the suit, the defendants had not stopped manufacturing and marketing their product under the said trade mark “POLYMOX”. and therefore, on 20-9-1995, the plaintiff filed the above suit for decree of declaration and decree for per petual prohibitory injunction and also for taking accounts for the profits. On the same day, the plaintiff took out Notice of Motion and by submitting application Ex. 6 requested the learned Judge of the trial Court to grant an interim injunction restraining the defendants from using the trade mark “POLYMOX” in any way while manufacturing and marketing their drugs, till final disposal of the suit.
3. At the initial stage, the learned Judge of the trial Court granted an ad-interim injunction in terms of para 19(a) of the application Exh. 6 till disposal of the said Notice of Motion.
4. In response to show cause notice issued against the defendants, the defendants appeared through their Advocates and contested the suit as well as Notice of Motion. It is their case that both the parties have applied for registration of the trade mark and it is the defendant who has first applied for registration of its trade mark earlier than the plaintiff. It is also the case of the defendants that question of infringement of trade mark does not arise as none of the parties has got its respective trade marks registered. The labels of the plaintiff and labels of the defendants are quite different. According to the defendants. The drug marketed under trade mark “POLYMOX” by both the parties is a Scheduled-H drug and can be obtained from the medical stores only on a prescription of a Registered Medical Practitioner. This drug is available only on prescription of Medical Practitioner and can be sold only by a registered medical retailer. and hence there is no chance of Chemist being deceived and no chance of the goods of the defendant being passed off as that of the plaintiff. Even if the names are same, but powers of the medicines are different, then also Chemist will not sell this medicine. The plaintiffs medicine is sold under powers of 250 mg. and 500 mg., while that of the defendant’s is available only in 250 mg. power. In short, it is the case of the defendant that there is no likelihood of deception. The defendant has been using this trade mark since long time and in spite of the knowledge of the same, the plaintiff has not taken any steps upto the date of filing the written statement. It is the case of the defendant that the plaintiffs suit is barred by delay and laches and therefore, no injunction can be granted against the defendants.
5. Both the parties had filed their respective affidavits and documents in support of their respective cases. After hearing the arguments of the learned Advocates for both the parties, and after considering the affidavits and documents, the learned Judge of the trial Court passed an impugned order dated 22-7-1999 and granted an interim injunction, pending the suit as stated in para 1 hereinabove.
6. Being aggrieved against and dissatisfied with the said impugned order dated 22-7-1999 passed below Ex. 6 in Civil Suit No. 4857 of 1995, the appellant (original defendant No. 2) has preferred this present appeal. The appellant has produced certain documents running from page 37 to page 163 along with memo of appeal. As per arguments of Shri R.R. Shah, learned Advocate for the appellant, these documents were produced by the plaintiff in the suit before trial Court.
7. Heard Shri R. R. Shah, the learned Advocate for the appellant and Shri Rajesh Acharya, the learned Advocate for the respondents in detail, at length.
8. The learned Advocates for both the parties took me through the impugned order and documents produced with the appeal memo.
9. Shri R. R. Shah, the learned Advocate for the appellant (original defendant No. 2) has challenged the impugned order mainly on following three grounds :
(i) The learned Judge of the trial Court has not taken into consideration any of the documents produced by the defendants in the suit.
(ii) The learned Judge of the trial Court has not considered the evidence on record to come to a conclusion that balance of convenience is in favour of the plaintiff. It is his argument that without discussing any material on record, the learned Judge of the trial Court has straightway come to a single line conclusion that balance of convenience is in favour of the plaintiff.
(iii) The learned Judge of the trial Court has not discussed and dealt with any material on record to come to a conclusion that irreparable injury would be caused to the plaintiff, if injunction is not granted. He has urged to this Court that the learned Judge of the trial Court ought to have come to a specific and clear cut conclusion that irreparable injury would be caused to the plaintiff, if injunction is not granted.
9.1. Thus according to Shri Shah, the impugned order suffers from illegality as the plaintiff has not made out his case for three most material important ingredients to obtain an interim injunction pending the suit, and therefore, the impugned order is liable to be set aside and interim injunction granted against the defendants be vacated forthwith.
10. As against aforesaid arguments of Shri R. R. Shah, Shri Acharya, the learned Advocate for the respondents has argued that though defendants had produced certain documents in the suit, their Advocate, during the course of arguments on application Ex. 6, did not refer to any single document, and therefore, the learned Judge of the trial Court has not referred to any of the documents of the defendants in his impugned order, and therefore, on that count, the impugned order cannot be set aside. He has further argued that the learned Judge of the trial Court has come to a conclusion that balance of convenience is in favour of the plaintiff. In absence of any findings on the point that irreparable injury would be caused to the plaintiff, if injunction is not granted, will not disentitle the plaintiff from obtaining interim injunction as prayed for by him in Ex. 6. He has fairly conceded that there is no discussion whatsoever even of a single line on the point with regard to irreparable injury in the impugned order. He has argued that looking to the facts that the plaintiff has made out a prima facie case, it should be assumed that irreparable injury would be caused to the plaintiff, if injunction is not granted, and therefore, in this case, the learned Judge of the trial Court has assumed this point with regard to irreparable Injury in favour of the plaintiff and rightly granted interim injunction against the defendant No. 2. Under the circumstances, as submitted by Mr. Acharya. the learned Advocate for the respondent No. 1, the impugned order should be upheld and this appeal be dismissed with costs.
11. This Court is conscious about scope and ambit of appeal against discretionary order of the trial Court in general and appeal from order under Section 104, CPC read with Order 43, Rule 1, CPC in particular. In case of Wander Ltd. v. Antox India P. Ltd. reported in 1990 (Supp) SCC 727, the Hon’ble Supreme Court has given following guideline’s in Para 14 to the Appellate Courts :
“The appellate Court will not interfere with the exercise of discretion of the Court of first instance and substitute its own discretion except where the discretion has been shown to have been exercised arbitrarily, or capriciously or perversely orwhere the Court had ignored the settled principles of law regulating grant or refusal of interlocutory injunction. An appeal against exercise of discretion is said to be an appeal on principle. Appellate Court will not reassess the material and seek to reach a conclusion different from the one reached by the Court below solely on the ground that if it had considered the matter at the trial stage it would have come to a contrary conclusion. If the discretion has been exercised by the trial Court reasonably and in a judicial manner the fact that the appellate Court would have taken a different view may not justify interference with the trial Court’s exercise of discretion.”
In view of the above, the appellate Court can upset the decision of the trial Court taken with judicial discretion, provided the appellate Court finds that lower Court has ignored well settled principles of law regulating grant or refusal of interlocutory injunction.
12. Shri R. R. Shah has cited another authority in case of Dalpat Kumar v. Prahlad Singh, reported in AIR 1993 SC 276, wherein it has been held in para 5 as follows (at page 277) :
“Therefore, the burden is on the plaintiff by evidence aliunde by affidavit or otherwise that there is “a prima facie case” in his favour which needs adjudication at the trial. The existence of the prima facie right and infraction of the enjoyment of his property or the right is a condition for the grant of temporary injunction, Prima facie case is not to be confused with prima facie title which has to be established, on evidence at the trial. Only prima facie case is a substantial question raised, bona fide, which needs investigation and a decision on merits. Satisfaction that there is a prima facie case by itself is not sufficient to grant injunction. The Court further has to satisfy that noninterference by the Court would result in “irreparable injury” to the party seeking relief and that there is no other remedy available to the party except one to grant injunction and he needs protection from the consequences of apprehended injury or dispossession. Irreparable injury, however, does not mean that there must be no physical possibility of repairing the injury, but means only that the injury must be a material one, namely one that cannot be adequately compensated by way of damages. The third condition also is that “the balance of convenience” must be in favour of granting Injunction. The Court while granting or refusing to grant injunction should exercise sound judicial discretion to find the amount of substantial mischief or injury which is likely to be caused to the parties, if the injunction is refused and compare it with that it is likely to be caused to the other side if the injunction is granted. If on weighing competing possibilities or probabilities of likelihood of injury and if the Court considers that pending the suit, the subject matter should be maintained, in status quo, an injunction would be issued. Thus, the Court has to exercise its sound judicial discretion in granting or refusing the relief of ad interim injunction pending the suit.”
13. In view of above legal position, satisfaction that there is a prima facie case by itself Is not sufficient to grant injunction. The Court has further to satisfy that non interference by the Court would result in irreparable injury to the parties seeking relief and that there is no other remedy available to the party except one of granting injunction, and he needs protection from consequence of apprehended injury or dispossession. Here in this case, if we examine the Impugned order which is challenged in this appeal, we find that in first three paragraphs, the learned Judge of the trial Court has narrated the case of the plaintiff as well as defendants. After discussing merits of case of rival parties, in the opening part of para 10 of impugned order, the learned Judge of the trial Court has come to a conclusion that the plaintiff has a prima facie case for injunction. Thereafter in para 10, he has discussed about applications made by both the parties for registration of their trade marks. By observing that application for registration has no consequence since the plaintiff has been able to show that this product is being marketed by plaintiff since 1981 and the defendant is not in a position to show since when they are marketing their product, he has straightway come to a conclusion that a balance of convenience is clearly in favour of the plaintiff.
14. Shri R. R. Shah, learned Advocate or the appellant has vehemently argued that in the documents produced by defendant in the suit, necessary material was very much before the trial Court to take into consideration the total amount or sale of all the products of defendant in general and total sale of suit product in question in particular. The plaintiff has given its figures in para 8 of their application Ex. 6. The learned Judge of the trial Court has totally failed to take into consideration the figures of total sale of the product in question for which documents are produced in the suit by defendants. He has further argued that this is not a case in which defendant has not started to manufacture the product till the suit is filed. Appellant’s advocate has drawn an attention of this Court to the documents produced with appeal memo and argued that from these documents, it can safely be said “that it is not the plaintiff but the defendant who first drew an attention of the plaintiff about use of trade mark “POLYMOX” being .made by plaintiff, and therefore, if really any party is aggrieved, it is the defendant No. 2 who has grievance against use of trade mark “POLYMOX” being made by plaintiff. Letter at Serial No. 37 is a letter dated 22-10-1993 written by defendant No. 2 addressed to the plaintiff. In this letter, there is a reference of letter dated 17th October, 1993 of the plaintiffs letter. Copy of plaintiffs letter dated 17th October, 1993 is at page 38, wherein plaintiff has referred to a letter dated 29-9-1993 of the defendant No. 2. At page 39, there is a copy of letter dated 29-9-1993 of defendant No. 2 addressed to plaintiff, wherein a reference is made for letter dated 24th September, 1993 of the plaintiff. At page 40, there is a copy of notice dated 18th May, 1993 of defendant No. 2 addressed to plaintiff. This notice dated 18th May, 1993 is In reply to plaintiffs notice dated 10th May 1993. On reading this notice of plaintiff dated 13th May, 1993 (page 43) it clearly appears that for the first time, letter dated 12th September, 1992 was addressed by defendant No. 2 to plaintiff, and defendant No. 2 brought to the notice of plaintiff for infringement of trade mark “POLYMOX” being caused by plaintiff, and therefore, it is not the case that plaintiff first drew an attention of defendant No. 2 for infringement of use of trade mark “POLIMAX” being caused by defendant No. 2. The learned Judge of the trial Court ought to have taken into consideration all those aspects for coming to a conclusion that irreparable injury would be caused to plaintiff, if injunction is not granted. Here in this case, the learned Judge of the trial Court has not at all come to a conclusion on the point of irreparable injury, and therefore, case of most material and important ingredient to obtain injunction is not made out by the plaintiff to the satisfaction of the Court.
15. Though the learned Judge of the trial Court has come to a conclusion stating in a single line that balance of convenience is in favour of plaintiff, he has not discussed any material or affidavit to come to such conclusion. In order to arrive at a particular conclusion, the learned Judge of the trial Court is required to state the reasons for arriving at such conclusion in his order and that the reasons should be plausible reasons. The absence of any reason to arrive at a particular decision will be unjustifiable in eye of law, because when a judicial discretion is to be exercised, the same is to be exercised with due care, caution and circumspection, Hence, in absence of reason, it is very difficult to justify the conclusion reached to by learned Judge of the trial Court with regard to balance of convenience in favour of the plaintiff.
16. Here in this case, impugned order suffers from following two most material irregularities which go to the root of the impugned order :
(1) Though the learned Judge of the trial Court has come to a one line conclusion that balance of convenience is in favour of plaintiff, he has not assigned any reason for such conclusion;
(2) The learned Judge of the trial Court has not at all discussed and dealt with material on reeord to come to a conclusion that irreparable injury would be caused to plaintiff, if injunction is not granted. He has not reached to any conclusion for injury much less irreparable injury.
It is well settled principle of law as announced in the case of Jang Singh v. Brij Lal reported in AIR 1966 SC 1631, wherein the Hon’ble Supreme Court has observed in para 6 as under (at page 1633) :
………..There is no higher principle for the guidance of the Court than the one that no act of Courts would harm a litigant and it is the bounden duty of Courts to see that if a person is harmed by a mistake of the Court, he should be restored to the position he would have occupied but for that mistake. This is aptly summed up in the maxim; “Actus curiae neminem gravabit”.
17. It is also well settled principles of law that injunction can be granted only if three important material ingredients are satisfied by the plaintiff at a time. It is not sufficient that if only one ingredient is satisfied, other two ingredients are presumed to have been satisfied by the plaintiff automatically. Under the circumstances, the impugned order is contrary to settled principles of law relating to grant or refusal of interim injunction, and therefore, this is a fit case in which the appellate Court should interfere with the impugned order.
18-19. In view of the above, the impugned order suffers from serious infirmity because of the lapses committed by the learned Judge of the trial Court. Had he discussed material on record to come to a conclusion with regard to balance of convenience, the decision of this Court would be otherwise. Similarly, the learned Judge of the trial Court has completely failed to discuss the material on record for coming to a conclusion on the point of irreparable injury. Because of the lapses committed by the learned Judge of the trial Court, the impugned order is found to be contrary to well settled principles of law regulating to grant or refusal of interlocutory injunction. This Court is of the view that the party should not suffer for lapse committed by the learned Judge of the trial Court, and therefore, to do a complete justice, impugned order is required to be set aside and application Ex. 6 is required to be remanded for hearing afresh by the learned Judge of the trial Court.
2O. In view of what is stated hereinabove, this appeal deserves to be allowed and the same is allowed accordingly. The application Ex. 6 is remanded back to the learned Judge of the trial Court for hearing afresh. The impugned order dated 22-7-1998 passed below Ex. 6 in Civil Suit No. 4857 of 1995 is set aside, with the following directions;
(1) The learned Judge of the trial Court shall hear, decide and dispose of the application Ex. 6 afresh after affording full opportunity of being heard to both the parties. The learned Judge of the trial Court is directed to take into consideration the well settled principles of law relating to injunction as stated In the case of Dalpat Kumar v. Prahlad Singh reported in AIR 1993 SC 276, in para 5 as referred to above.
(2) As the application Ex. 6 is remanded back to the learned Judge of the trial Court for hearing afresh and meanwhile, an ad-interim injunction order dated 13-8-1997 passed by the learned Judge of the trial Court which is at page 35 shall get revived and that ad-interim order dated 13-8-1997 passed below application Ex. 6 in Civil Suit No. 4857 of 1995 shall remain effective and operative till final disposal of application Ex. 5 pursuant to this order.
(3) The learned Judge of the trial Court is directed to hear, decide and dispose of application Ex. 6 as early as possible, preferably within 30 days from the date of receipt of writ of this order keeping in mind the provisions of Order 39 Rule 3-A, C.P.C. and the directions and observations made in this order. It is also made clear by this order that the trial of the suit is not, at all stayed.
(4) Both the parties are directed to extend fullest co-operation to the learned Judge of the trial Court so as to enable him to decide and dispose of application Ex. 6 within the given time.
In view of the directions given hereinabove this, appeal is allowed accordingly. There shall be no order as to costs.