This Court deems it fit to request the learned Trial Court to hear the two applications before the summons in the suit and notice in the applications are served on the Respondent was upheld by the High Court Of Delhi through the learned bench led by HON’BLE MS. JUSTICE JYOTI SINGH in the case of LUMAX INDUSTRIES LIMITED & ORS. Vs HINDUSTAN AUTO INDUSTRIES (CM(M)-IPD 12/2022) on 09th May, 2022.
Brief facts of the case are that Petitioners filed suit bearing CS(COMM) 311/2021, seeking to restrain the Respondent from infringing and passing off Petitioners’ trademark “LUMAX” and device marks and the same is pending adjudication before the learned Trial Court. The suit was listed on various dates before the learned Trial Court where, for one reason or the other, while summons were issued, applications filed under Order 39 Rules 1 and 2 CPC for ex parte ad interim injunction and under Order 26 Rule 9 read with Order 39 Rule 7 CPC for appointment of Local Commissioner were not being heard.
Petitioners moved an application under Section 151 CPC on 11.12.2021 before the learned Trial Court seeking appropriate directions in terms of the liberty granted to them vide order dated 15.11.2021 and prayed for deciding the applications under Order 39 Rules 1 and 2 CPC and for appointment of Local Commissioner, prior to issuance of notices on the applications and summons being issued to the Respondent, on the ground that in case the summons are served, the purpose of filing the applications for appointment of Local Commissioner as well as for ex parte ad interim injunction will be defeated. Petitioners apprised the Court of the application filed for appropriate directions, however, due to paucity of time, detailed arguments were not heard and the matter was adjourned.
On 22.02.2022, Petitioners submitted before the learned Trial Court that the two pending applications, i.e. under Order 39 Rules 1 and 2 CPC and for appointment of Local Commissioner, be decided, and also filed a compilation of judgments, as directed by the learned Trial Court. However, the matter was heard in part and thereafter adjourned to 28.02.2022, for conclusion of the arguments.
The matter was listed before this Court on 06.05.2022, when the Court directed the Petitioners to place on record the order dated 30.04.2022, whereby fresh summons and notice in the applications were issued and the matter was listed before the learned Trial Court on 09.05.2022.
The Court observed that “While this Court deprecates the non-compliance of the Court order by the Petitioners in not taking steps to serve the Respondent, however, considering the fact that several dates have passed and till date, for one reason or the other, Respondent is unserved, this Court deems it fit to request the learned Trial Court to hear the two applications before the summons in the suit and notice in the applications are served on the Respondent.”
In view of facts and circumstances, court held that the Trial Court is requested to take up the application under Order 39 Rules 1 and 2 CPC for ex parte ad interim injunction as well as application for appointment of Local Commissioner on 10.05.2022.
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Written by- Riya Singh, Legal Intern, Prime Legal
