TaxTMI 
TaxTMI 
2022 (3) TMI 1674
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....assed by the Division Bench of the High Court of Calcutta dated 24th December 2019, arising out of the order passed by the learned Single Judge of the High Court dated 2nd April 2019, by which the learned Single Judge had granted time to the appellants- defendants to file affidavit-in-opposition and directed to post the matter after three weeks. By the said order, the learned Single Judge also directed the appellants-defendants to maintain weekly accounts of sale of the products covered by Class 6, which are sold under the mark 'SHYAM'. 3. The facts in the present case are not much in dispute. The respondent-plaintiff had filed a suit against the appellants- defendants for infringement of trade mark and passing off. It is the case of the respondent-plaintiff that it has trade mark registration in respect of the word 'SHYAM' and diverse label marks wherein the word 'SHYAM' features prominently. Both the respondent-plaintiff and the appellants-defendants manufacture and sell, inter alia, Thermo-Mechanically treated bars (hereinafter referred to as "TMT bars"). It is the case of the respondent-plaintiff that in the year 2015, it came to know that the appella....
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....abling others to pass off the respondent-plaintiff's products by use of trade marks comprising the word 'SHYAM' or any other trade mark similar thereto. 7. The said suit and the application for temporary injunction came to be filed in the month of March, 2019. The application came up for consideration for grant of ad-interim injunction before the learned Single Judge on 2nd April 2019. The learned Single Judge made a prima facie observation that he was of the view that 'SHYAM' being a part of the business name of the appellants-defendants, no injunction should be passed to restrain the appellants-defendants from using the said word 'SHYAM' on their packaging. The learned Single Judge deemed it appropriate to grant time to the appellants-defendants to file affidavit-in-opposition, which was directed to be filed within two weeks from the date of the said order. It was also clarified that no prayer for extension of time shall be entertained. The learned Single Judge directed the matter to be listed after three weeks. Vide the said order, the learned Single Judge also directed the appellants-defendants to maintain weekly accounts of sale of the products c....
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....ment nor an intermediary/interlocutory judgment. The learned Senior Counsel submitted that the order passed by the learned Single Judge would not fall in any of the categories carved out by this Court in para (120) of its judgment in the case of Shah Babulal Khimji (supra). 11. Shri Rohatgi further submitted that in any case, the view taken by the learned Single Judge could not be construed to be either impossible or perverse, warranting interference. The learned Senior Counsel relies on the judgment of this Court in the case of Wander Ltd. and Another v. Antox India P. Ltd [1990 Supp SCC 727]. Shri Rohatgi further submitted that the Division Bench of the High Court has in fact usurped the jurisdiction of the learned Single Judge to decide an application under Order XXXIX Rules 1 and 2 CPC. Relying on the judgment of this Court in the case of Monsanto Technology LLC Through the authorized representative Ms Natalia Voruz and Others v. Nuziveedu Seeds Limited Through Director and Others [(2019) 3 SCC 381], he submitted that it was impermissible for the Division Bench of the High Court to do so. 12. Shri Neeraj Kishan Kaul, learned Senior Counsel appearing on behalf of the respo....
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....ctness of the approach of the Division Bench of the High Court. 16. An intra-court appeal lies to the Division Bench of the High Court under Clause 15 of the Letters Patent. Clause 15 of the Letters Patent enables a party to appeal to the Division Bench of the High Court against an order of the Single Judge. A three-Judge Bench of this Court in the case of Shah Babulal Khimji (supra) had an occasion to consider the question as to what would be meant by the term 'judgment' used in Clause 15 of the Letters Patent. In the said case, the plaintiff had filed a suit on the original side of the Bombay High Court for specific performance of a contract and prayed for an interim relief by appointing a receiver of the suit-property and injuncting the defendant from disposing of the suit-property during the pendency of the suit. The Single Judge of the High Court after hearing the notice of motion had dismissed the said application. The plaintiff therefore filed an appeal before the Division Bench of the High Court. The Division Bench of the High Court held that the order of the Single Judge refusing to appoint a receiver and to grant an injunction could not be construed to be a ....
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....h an appeal lies as an appeal from an order, or (b) any order of dismissal for default. Explanation .- A decree is preliminary when further proceedings have to be taken before the suit can be completely disposed of. It is final when such adjudication completely disposes of the suit. It may be partly preliminary and partly final." 113. Thus, under the Code of Civil Procedure, a judgment consists of the reasons and grounds for a decree passed by a court. As a judgment constitutes the reasons for the decree it follows as a matter of course that the judgment must be a formal adjudication which conclusively determines the rights of the parties with regard to all or any of the matters in controversy. The concept of a judgment as defined by the Code of Civil Procedure seems to be rather narrow and the limitations engrafted by sub-section (2) of Section 2 cannot be physically imported into the definition of the word "judgment" as used in clause 15 of the letters patent because the letters patent has advisedly not used the terms "order" or "decree" anywhere. The intention, therefore, of the givers of the letters patent was that the word "judgment" should receive a....
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....e defendant and must, therefore, be construed to be a judgment so as to be appealable to a larger Bench. (3) Intermediary or interlocutory judgment. - Most of the interlocutory orders which contain the quality of finality are clearly specified in clauses (a) to (w) of Order 43 Rule 1 and have already been held by us to be judgments within the meaning of the letters patent and, therefore, appealable. There may also be interlocutory orders which are not covered by Order 43 Rule 1 but which also possess the characteristics and trappings of finality in that, the orders may adversely affect a valuable right of the party or decide an important aspect of the trial in an ancillary proceeding. Before such an order can be a judgment the adverse effect on the party concerned must be direct and immediate rather than indirect or remote. For instance, where the trial Judge in a suit under Order 37 of the Code of Civil Procedure refuses the defendant leave to defend the suit, the order directly affects the defendant because he loses a valuable right to defend the suit and his remedy is confined only to contest the plaintiff's case on his own evidence without being given a chance to r....
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.... other. Such orders are purely interlocutory and cannot constitute judgments because it will always be open to the aggrieved party to make a grievance of the order passed against the party concerned in the appeal against the final judgment passed by the trial Judge. 115. Thus, in other words every interlocutory order cannot be regarded as a judgment but only those orders would be judgments which decide matters of moment or affect vital and valuable rights of the parties and which work serious injustice to the party concerned. Similarly, orders passed by the trial Judge deciding question of admissibility or relevancy of a document also cannot be treated as judgments because the grievance on this score can be corrected by the appellate court in appeal against the final judgment. 116. We might give another instance of an interlocutory order which amounts to an exercise of discretion and which may yet amount to a judgment within the meaning of the letters patent. Suppose the trial Judge allows the plaintiff to amend his plaint or include a cause of action or a relief as a result of which a vested right of limitation accrued to the defendant is taken away and rendered ....
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....o have been followed by most of the High Courts) minus the broader and the wider attributes adumbrated by Sir White, C.J., or more explicitly by Krishnaswamy Ayyar, J. as has been referred to above. 119. Apart from the tests laid down by Sir White, C.J., the following considerations must prevail with the court: "(1) That the trial Judge being a senior court with vast experience of various branches of law occupying a very high status should be trusted to pass discretionary or interlocutory orders with due regard to the well settled principles of civil justice. Thus, any discretion exercised or routine orders passed by the trial Judge in the course of the suit which may cause some inconvenience or, to some extent, prejudice to one party or the other cannot be treated as a judgment otherwise the appellate court (Division Bench) will be flooded with appeals from all kinds of orders passed by the trial Judge. The courts must give sufficient allowance to the trial Judge and raise a presumption that any discretionary order which he passes must be presumed to be correct unless it is ex facie legally erroneous or causes grave and substantial injustice. (2) That th....
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....ay be noted that whereas an order deciding the nature of the court fees to be paid by the plaintiff would be a judgment but this order affects only the plaintiff or the Government and not the defendant. Thus, only the plaintiff or the Government as the case may be will have the right to file an appeal in the Division Bench and not the defendant because the question of payment of court fees is a matter between the Government and the plaintiff and the defendant has no locus in this regard. 122. We have by way of sample laid down various illustrative examples of an order which may amount to judgment but it is not possible to give such an exhaustive list as may cover all possible cases. Law with its dynamism, pragmatism and vastness is such a large ocean that it is well-nigh impossible for us to envisage or provide for every possible contingency or situation so as to evolve a device or frame an exhaustive formula or strategy to confine and incarcerate the same in a strait-jacket. We, however, hope and trust that by and large the controversy raging for about a century on the connotation of the term "judgment" would have now been settled and a few cases which may have been left ....
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....ses (a) to (w) of Order XLIII Rule 1 CPC and would be 'judgments' within the meaning of the letters patent and, therefore, appealable. However, there may be interlocutory orders which are not covered by Order XLIII Rule 1 CPC but which also possess the characteristics and trappings of finality inasmuch as such orders may adversely affect a valuable right of the party or decide an important aspect of the trial in an ancillary proceeding. It has further been held that however, for such an order to be a judgment', an adverse effect on the party concerned must be direct and immediate rather than indirect or remote. Various illustrations of interlocutory orders have been given by this Court in para (120), which could be held to be appealable. This Court held that though any discretion exercised or routine orders passed by the trial Judge in the course of the suit may cause some inconvenience or, to some extent, prejudice to one party or the other, they cannot be treated as a 'judgment' unless they contain the traits and trappings of finality. This Court has expressed in para (122) that though it had, by way of sample, laid down various illustrative examples of an ord....
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....a 'judgment' within the scope of Clause 15 of Letters Patent, would depend on facts and circumstances of each case. However, for such an order to be construed as a 'judgment', it must have the traits and trappings of finality. To come within the ambit of 'judgment', such an order must affect vital and valuable rights of the parties, which works serious injustice to the party concerned. Each and every order passed by the Court during the course of the trial, though may cause some inconvenience to one of the parties or, to some extent, some prejudice to one of the parties, cannot be treated as a 'judgment'. If such is permitted, the floodgate of appeals would be open against the order of Single Judge. 22. In the light of this observation, we will have to consider as to whether the order passed by the learned Single Judge dated 2nd April 2019, could be construed as a 'judgment' within the meaning of Clause 15 of Letters Patent. 23. What the learned Single Judge has done by the said order, was to grant two weeks' time to the appellants-defendants to file affidavit-in-opposition and postpone the issue of grant of ad-interim injunction by....
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.... challenge the order of adjournment or grant of time to the other side to file affidavit-in-reply. We are therefore of the considered view that the order dated 2nd April 2019 cannot be construed to be a 'judgment' within the meaning of Clause 15 of Letters Patent and as such, the appeal to the Division Bench of the High Court was not tenable. 26. We clarify that as held in Shah Babulal Khimji (supra), we are holding so, taking into consideration the facts and circumstances as they appear in the present matter. 27. With this, we could have very well allowed the present appeal by setting aside the impugned judgment and order of the Division Bench of the High Court. However, since we find that the approach of the Division Bench of the High Court was totally contrary to the various well-settled principles of law, we are required to consider the correctness of various findings and observations of the Division Bench of the High Court in the impugned judgment and order. 28. The learned Single Judge passed an order on 2nd April 2019. It appears that the appeal to the Division Bench of the High Court was filed immediately thereafter in the month of April, though the exact d....
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....examining the correctness or otherwise thereof within the limited area available. If the appellate court itself decides the matters required to be decided by the trial court, there would be no necessity to have the hierarchy of courts. As observed by this Court in Monsanto Technology LLC (supra), the appellate court cannot usurp the jurisdiction of the Single Judge to decide as to whether the tests of prima facie case, balance of convenience and irreparable injury are made out in the case or not. 30. Though there are various observations made by the Division Bench of the High Court, which in our view, are totally unwarranted, we refrain ourselves to refer to them as any comment thereon would unnecessarily prejudice the rights of either of the parties. We will only limit ourselves to the minimum possible observations of the Division Bench of the High Court. 31. Though the Division Bench of the High Court, referring to the judgment of this Court in the case of Wander Ltd. (supra), observes that the appellate court will not substitute its opinion with that of the trial court in an interim application unless there is a perversity in the order, it fails to discuss as to how the vi....
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.... the learned Single Judge. 34. The learned Judges of the Division Bench of the High Court have taken pains to make a mention of the judgment of this Court in the case of Wander Ltd. (supra). This judgment has been guiding the appellate courts in the country for decades while exercising their appellate jurisdiction considering the correctness of the discretion and jurisdiction exercised by the trial courts for grant or refusal of interlocutory injunctions. In the said case, the learned Single Judge had refused an order of temporary injunction in favour of the plaintiff who was claiming to be a registered proprietor of the registered trade mark. The Division Bench of the High Court had reversed the order passed by the learned Single Judge and granted interim injunction. Reversing the order of the Division Bench of the High Court and maintaining the order of the learned Single Judge, this Court observed thus: "14. The appeals before the Division Bench were against the exercise of discretion by the Single Judge. In such appeals, the appellate court will not interfere with the exercise of discretion of the court of first instance and substitute its own discretion except wher....
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....Court to have waited till 24th December 2019 and taken the pains of deciding the application at first instance. It could have very well, in the month of April, 2019 itself, done the exercise of requesting the learned Single Judge to decide the application as scheduled. 36. In any event, though the Division Bench of the High Court observes that for deciding the question with regard to grant of interim injunction, it has to put itself in a position as if it was moved to pass an interim order in the suit, it even fails to take into consideration the principles which a court is required to take into consideration while deciding such an application. It is a settled principle of law that while considering the question of grant of interim injunction, the courts are required to consider the three tests of prima facie case, balance of convenience and irreparable injury. Besides a stray observation that the respondent-plaintiff has made out a prima facie case, there is no discussion as to how a prima facie case was made out by the respondent-plaintiff. In any case, insofar as the tests of balance of convenience and irreparable injury are concerned, there is not even a mention with regard ....