SHYAM SEL AND POWER LIMITED AND versus SHYAM STEEL INDUSTRIES LIMITED on 14 March 2022

SHYAM SEL AND POWER LIMITED AND ANOTHER

v.

SHYAM STEEL INDUSTRIES LIMITED

(Civil Appeal No. 1984 of 2022)

MARCH 14, 2022

[L. NAGESWARA RAO AND B. R. GAVAI, JJ.]

Code of Civil Procedure, 1908 – Or.XXXIX, rr.1 and 2 –Temporary Injunction – Both appellants and respondents weremanufacturers and sellers of Thermo-Mechanically treated bars(TMT bars) – Respondent-plaintiff filed civil suit before Single Judgeof High Court claiming infringement of their registered trade mark‘SHYAM’ and its variants and also for passing off by the appellants-defendants – Along with the suit, an application for temporaryinjunction came to be filed – The application claimed an order ofinjunction restraining appellants-defendants from infringingrespondent-plaintiff’s trade mark ‘SHYAM’ – The Single Judge madea prima facie observation that ‘SHYAM’ being a part of the businessname of appellants-defendants, no injunction should be passed torestrain the appellants-defendants from using the said word ‘SHYAM’on their packaging; and directed the matter to be listed after threeweeks – Respondent-plaintiff filed intra-court appeal – DivisionBench of High Court granted injunction restraining the appellantsfrom using the mark ‘SHYAM’ till disposal of the suit – ‘Tenabilityof appeal’ against the order of Single Judge – Correctness of the‘approach of the Division Bench’– Held: Each and every orderpassed by trial judge could not be construed to be “judgment” – Tobe construed as a “judgment”, order must have the traits andtrapping of finality and such order must affect vital and valuablerights of the parties – Though the order of the Single Judge mighthave caused some inconvenience and prejudice to the respondent,the same could not be treated as ‘judgment’ – The order of SingleJudge did not contain traits and trappings of finality – The saidorder cannot be construed to be a ‘judgment’ and the appeal to theDivision Bench was not tenable – Approach of the Division Benchwas totally contrary to the various principles of law – If the appellatecourt itself decides the matters required to be decided by the trial

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Acourt there would be no necessity to have the hierarchy of the courts– Division Bench failed to observe as how the discretion exercisedby the Single Judge was exercised arbitrarily, capriciously orperversely – There was no discussion as to how a prima facie casewas made out by the respondent – Tests of ‘balance of convenience’and ‘irreparable injury’ were not even mentioned – Approach ofBDivision Bench of High Court was totally unwarranted and uncalledfor.

Appeal – Letters Patent appeal – Term ‘judgment’ used inLetters Patent – Held: Though the term ‘judgment’ used in LettersPatent could not be given a narrower meaning as is given to theCterm ‘judgment’ used in CPC and it should receive a much widerand more liberal interpretation, however, at the same time, eachand every order passed by the trial judge could not be construed tobe a ‘judgment’ inasmuch as there will be no end to the number oforders which would be appealable under the Letters Patent – TheDword ‘judgment’ has undoubtedly a concept of finality in a broaderand not in a narrower sense – Where an order vitally affects avaluable right of the defendants, it will undoubtedly be treated as a‘judgment’ within the meaning of Letters Patent so as to beappealable to a larger Bench.

EInjunction – Temporary Injunction – Grant of – Three testsof prima facie case, balance of convenience and irreparable injury.

Judiciary – Hierarchy of courts – Role of appellate court –Held: An appellate court, after the findings of the trial court arerecorded, has an advantage of appreciating the view taken by theFtrial judge and examining the correctness or otherwise thereof withinthe limited area available – If the appellate court itself decides thematters required to be decided by the trial court, there would be nonecessity to have the hierarchy of courts.

Conclusion

Words and Phrases – Term ‘judgment’ – Meaning of.GAllowing the appeal, the Court HELD:1.1 Though the term ‘judgment’ used in LettersPatent could not be given a narrower meaning as is given to theterm ‘judgment’ used in CPC and it should receive a much widerand more liberal interpretation, however, at the same time, eachH

STEEL INDUSTRIES LIMITED

and every order passed by the trial judge could not be construedto be a judgment’ inasmuch as there will be no end to the numberof orders which would be appealable under the Letters Patent.The word ‘judgment’ has undoubtedly a concept of finality in abroader and not in a narrower sense. Where an order vitally affectsa valuable right of the defendants, it will undoubtedly be treatedas a ‘judgment’ within the meaning of Letters Patent so as to beappealable to a larger Bench. [Para 17][1191-D-F]

Shah Babulal Khimji v. Jayaben D. Kania and Another(1981) 4 SCC 8: [1982] 1 SCR 187- relied on.

1.2. Whether an order impugned would be a ‘judgment’within the scope of Clause 15 of Letters Patent, would dependon facts and circumstances of each case. However, for such anorder to be construed as a ‘judgment’, it must have the traits andtrappings of finality. To come within the ambit of ‘judgment’, suchan order must affect vital and valuable rights of the parties, whichworks serious injustice to the party concerned. Each and everyorder passed by the Court during the course of the trial, thoughmay cause some inconvenience to one of the parties or, to someextent, some prejudice to one of the parties, cannot be treatedas a ‘judgment’. If such is permitted, the floodgate of appealswould be open against the order of Single Judge. [Para 21][1193-B-D]

1.3. In the present case, there was no adjudication withregard to the rights of the respondent-plaintiff to get an ad-interiminjunction during the pendency of the suit. Though bypostponement of the issue with regard to grant of ad-interiminjunction, the order might have caused some inconvenience andmay be, to some extent, prejudice to the respondent-plaintiff;the same could not be treated as a ‘judgment’ inasmuch as therewas no conclusive finding as to whether the respondent-plaintiffwas entitled for grant of ad-interim injunction or not. As such,the order passed by the Single Judge did not contain the traitsand trappings of finality. If it is held otherwise, this will open afloodgate of appeals for parties who may even challenge the orderof adjournment or grant of time to the other side to fileaffidavit-in-reply. The order dated 2nd April 2019 of the Single A

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AJudge of the High Court 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 nottenable. [Para 25][1194-C-F]

2. It is difficult to appreciate the anxiety on the part of theBDivision Bench of the High Court to itself dispose of theinterlocutory application instead of relegating it to the court belowfor its disposal. When the Division Bench of the High Court itselftook 8-9 months to decide the appeal, it is difficult to understandas to what the Judges of the Division Bench of the High Courtmeant by “unnecessary prolongation of the litigation and utterCwastage of time”. If the Judges of the Division Bench were somuch concerned with the prolongation of litigation, they couldhave very well requested the Single Judge to decide the injunctionapplication within a stipulated period. Instead of waiting for aperiod of 8-9 months, this could have been done by them at theDvery first instance when the appeal was listed. The hierarchy ofthe trial court and the appellate court exists so that the trial courtexercises its discretion upon the settled principles of law. Anappellate court, after the findings of the trial court are recorded,has an advantage of appreciating the view taken by the trial judgeand examining the correctness or otherwise thereof within theElimited area available. If the appellate court itself decides thematters required to be decided by the trial court, there would beno necessity to have the hierarchy of courts. [Para 29][1195-F-H; 1196-A-B]

3.1. The Judges of the Division Bench of the High CourtFhave not even, for namesake, observed as to how the discretionexercised by the Single Judge was exercised arbitrarily,capriciously or perversely. [Para 35][1198-G]

3.2 It is a settled principle of law that while considering thequestion of grant of interim injunction, the courts are required toGconsider the three tests of prima facie case, balance ofconvenience and irreparable injury. Besides a stray observationthat the respondent-plaintiff has made out a prima facie case, thereis no discussion as to how a prima facie case was made out by the H

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respondent-plaintiff. In any case, insofar as the tests of balanceof convenience and irreparable injury are concerned, there isnot even a mention with regard to these in the impugned judgmentand order of the Division Bench of the High Court. The approachof the Division Bench of the High Court was totally unwarrantedand uncalled for. [Para 36][1199-B-E]

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Wander Ltd. and Another v. Antox India P. Ltd (1990)Supp SCC 727; Monsanto Technology LLC Throughthe authorized representative Ms Natalia Voruz andOthers v. Nuziveedu Seeds Limited Through Directorand Others (2019) 3 SCC 381 : [2019] 1 SCR 145 andRenaissance Hotel Holdings Inc. v. B. Vijaya Sai andOthers 2022 SCC OnLine SC 61 – referred to.

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Case Law Reference

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1984of 2022.

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From the Judgment and Order dated 24.12.2019 of the High Courtof Calcutta at Calcutta in APO No.91 of 2019.

Mukul Rohatgi, Shyam Divan, Jishnu Saha, Ms. Aparajita Singh,Sr. Advs., Mahesh Agarwal, Ankur Saigal, Gaurav Mukerjee, Amol Dixit,Rudraman Bhattacharya, Sidharta Das, Sanjay Ginodia, Manoj Tiwari,Shuvashish Sengupta, Rishabh Parikh, Anirudh Bhatia, Ms. Ayushi Amod,E. C. Agrawala, Advs. for the Appellants.

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Ranjit Kumar, Neeraj Kishan Kaul, Sr. Advs., N. G. Khaitan,Debanath Ghosh, Ajay Bhargava, Ms. Vanita Bhargava, SayanRoychowdhary, Ayush Agarwal, Ms. Trishala Trivedi, Ms. VaibhaviPandey, Dhruv Sharma, Toshiv Goyal, Raghav Agrawal, M/s Khaitan &Co., Advs. for the Respondent.

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AThe Judgment of the Court was delivered by

B. R. GAVAI, J.

1. Leave granted.

2. This appeal challenges the judgment and order passed by theBDivision Bench of the High Court of Calcutta dated 24[th] December 2019,arising out of the order passed by the learned Single Judge of the HighCourt dated 2[nd] April 2019, by which the learned Single Judge had grantedtime to the appellants-defendants to file affidavit-in-opposition and directedto post the matter after three weeks. By the said order, the learnedSingle Judge also directed the appellants-defendants to maintain weeklyCaccounts of sale of the products covered by Class 6, which are soldunder the mark ‘SHYAM’.

3. The facts in the present case are not much in dispute. Therespondent-plaintiff had filed a suit against the appellants-defendantsfor infringement of trade mark and passing off. It is the case of theDrespondent-plaintiff that it has trade mark registration in respect of theword ‘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 treatedbars (hereinafter referred to as “TMT bars”). It is the case of therespondent-plaintiff that in the year 2015, it came to know that theEappellants-defendants were using the mark ‘SHYAM’ in their products.The respondent-plaintiff therefore, through its advocate, objected to suchuse. It is the case of the respondent-plaintiff that the appellants-defendants agreed to phase out the products that they had manufacturedwith the mark ‘SHYAM’ and not to use the said mark ‘SHYAM’ onFtheir products in future.

4. It is further the case of the respondent-plaintiff that theappellants-defendants had applied for registration of the mark ‘SHYAMINFRA’. The respondent-plaintiff had filed its objection to it. It is furtherits case that since the appellants-defendants did not file their counter-Gstatement, the application lapsed and was treated as abandoned.

5. It is further the case of the respondent-plaintiff that towardsthe end of 2018, the appellants-defendants started to use the word‘SHYAM METALICS’ on the packaging of their TMT bars. Accordingto respondent-plaintiff, though the appellants-defendants had used theHword ‘SHYAM’ on their invoices and stationeries, they had not used the said word ‘SHYAM’ on their wrappers in which their TMT bars werepacked. According to the respondent-plaintiff, this was done by theappellants-defendants only to take advantage of the growing andexpanding business of the respondent-plaintiff and with an intention thatthe products manufactured and sold by the appellants-defendants couldbe passed off as those of the respondent-plaintiff. In this background,the respondent-plaintiff filed a civil suit being CS No. 63 of 2019 beforethe learned Single Judge of the High Court of Calcutta, claiminginfringement of their registered trade mark ‘SHYAM’ and its variantsand also for passing off by the appellants-defendants.

6. Along with the suit, an application being GA No.857 of 2019 inCS No. 63 of 2019 for temporary injunction under Order XXXIX Rules1 and 2 of the Code of Civil Procedure, 1908 (hereinafter referred to as“CPC”) came to be filed. The said application basically claimed an orderof injunction restraining the appellants-defendants from infringing therespondent-plaintiff’s trade mark ‘SHYAM’ and its variants and inparticular, trade mark registration No. 987596. The said ssapplicationsought an injunction restraining the appellants-defendants from, in anymanner, passing off and enabling 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 cameto be filed in the month of March, 2019. The application came up forconsideration for grant of ad-interim injunction before the learned SingleJudge on 2[nd] April 2019. The learned Single Judge made a prima facieobservation that he was of the view that ‘SHYAM’ being a part of thebusiness name of the appellants-defendants, no injunction should be passedto restrain the appellants-defendants from using the said word ‘SHYAM’on their packaging. The learned Single Judge deemed it appropriate togrant time to the appellants-defendants to file affidavit-in-opposition,which was directed to be filed within two weeks from the date of thesaid order. It was also clarified that no prayer for extension of time shallbe entertained. The learned Single Judge directed the matter to be listedafter three weeks. Vide the said order, the learned Single Judge alsodirected the appellants-defendants to maintain weekly accounts of saleof the products covered by Class 6, which are sold under the mark‘SHYAM’. The learned Single Judge also clarified that the observationmade by him in the said order was prima facie for the purpose of passing AB

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Aan order at the ad-interim stage and the same would not have anyrelevance at the time of considering and deciding the said applicationafter exchange of affidavits.

8. Being aggrieved by the said order of the learned Single Judge,the respondent-plaintiff filed an appeal before the Division Bench of theBHigh Court. The Division Bench of the High Court by the impugnedjudgment and order dated 24[th] December 2019 though, has observedthat “the order of the learned Single Judge dated 2[nd] April 2019 ismodified”, but in effect, has allowed the appeal and granted an injunctionrestraining the appellants-defendants from, in any way, manufacturing,selling or advertising their goods with the mark ‘SHYAM’ or with a labelCor device containing the mark ‘SHYAM’ till the disposal of the suit.Being aggrieved thereby, the present appeal.

9. This Court, while issuing notice on 16[th] June 2020, had stayedthe impugned judgment and order. The respondent-plaintiff had thereforefiled an application for vacating stay. However, this Court found itDappropriate to decide the main appeal itself on merits. As such, we haveheard learned Senior Counsel for the parties at length.

10. Shri Mukul Rohatgi, learned Senior Counsel appearing on behalfof the appellants-defendants submitted that the appeal filed by therespondent-plaintiff before the Division Bench of the High Court wasEnot tenable. Relying on the judgment of this Court in the case of ShahBabulal Khimji v. Jayaben D. Kania and Another[1], learned SeniorCounsel submitted that the order passed by the learned Single Judgedated 2[nd] April 2019 could not be construed to be a ‘judgment’ within themeaning of Clause 15 of the Letters Patent of the High Court (hereinafterFreferred to as “Letters Patent”) and as such, the appeal itself was notmaintainable. He submitted that vide judgment and order impugned beforethe Division Bench of the High Court, the learned Single Judge had onlygranted time to file the reply and had neither granted nor refused aninterim injunction. Shri Rohatgi submitted that the order of the learnedSingle Judge is neither a final judgment nor a preliminary judgment norGan intermediary/interlocutory judgment. The learned Senior Counselsubmitted that the order passed by the learned Single Judge would notfall in any of the categories carved out by this Court in para (120) of itsjudgment in the case of Shah Babulal Khimji (supra).

H1 (1981) 4 SCC 8

H1 (1981) 4 SCC 8

11. Shri Rohatgi further submitted that in any case, the view takenby the learned Single Judge could not be construed to be either impossibleor perverse, warranting interference. The learned Senior Counsel relieson the judgment of this Court in the case of Wander Ltd. and Anotherv. Antox India P. Ltd[2]. Shri Rohatgi further submitted that the DivisionBench of the High Court has in fact usurped the jurisdiction of the learnedSingle Judge to decide an application under Order XXXIX Rules 1 and 2CPC. Relying on the judgment of this Court in the case of MonsantoTechnology LLC Through the authorized representative Ms NataliaVoruz and Others v. Nuziveedu Seeds Limited Through Directorand Others[3], he submitted that it was impermissible for the DivisionBench of the High Court to do so.

12. Shri Neeraj Kishan Kaul, learned Senior Counsel appearingon behalf of the respondent-plaintiff submitted that the Division Benchof the High Court had rightly interfered with the order passed by thelearned Single Judge. He submitted that it is a settled principle of lawthat an order of injunction would be issued wherever an infringement ofa registered trade mark is established. He relies on the recent judgmentof this Court in the case of Renaissance Hotel Holdings Inc. v. B.Vijaya Sai and Others[4]

13. Insofar as the objection of the appellants-defendants withregard to maintainability of the appeal before the Division Bench of theHigh Court is concerned, Shri Kaul would submit that the view taken bythis Court in the case of Shah Babulal Khimji (supra) would rathersupport the case of the respondent-plaintiff than that of the appellants-defendants. He submitted that since a vital and valuable right of therespondent-plaintiff was infringed by non-grant of ad-interim order bythe learned Single Judge, the appeal was very much tenable. He submittedthat it is not in dispute that the respondent-plaintiff is the registered ownerof the trade mark ‘SHYAM’. As such, once the infringement thereofwas brought to the notice of the learned Single Judge, the learned SingleJudge ought to have granted ad-interim relief restraining the appellants-defendants from using the said trade mark and passing off their goodsas that of the respondent-plaintiff. He therefore submitted that nointerference is warranted in the present appeal.

2 1990 Supp SCC 727

3 (2019) 3 SCC 381

4 2022 SCC OnLine SC 61 [Civil Appeal No.404 of 2022 dated 19.01.2022]

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A14. Though both the parties have addressed this Court at lengthon merits of the matter and have also taken us through voluminousdocuments, we do not find it necessary to go into those issues. Thepresent appeal arises out of an order passed by the Division Bench ofthe High Court in an intra-court appeal challenging the order passed bythe learned Single Judge vide which the learned Single Judge had grantedBtime to the appellants-defendants to file affidavit-in-opposition andpostponed the hearing of the application seeking injunction.

15. We are of the considered view that any observation on meritsby this Court would prejudice the rights of either of the parties andtherefore, we are restricting ourselves to consider the question with regardCto tenability of the appeal against the order of the learned Single Judgeand the correctness of the approach of the Division Bench of the HighCourt.

16. An intra-court appeal lies to the Division Bench of the HighCourt under Clause 15 of the Letters Patent. Clause 15 of the LettersDPatent enables a party to appeal to the Division Bench of the High Courtagainst an order of the Single Judge. A three-Judge Bench of this Courtin the case of Shah Babulal Khimji (supra) had an occasion to considerthe question as to what would be meant by the term ‘judgment’ used inClause 15 of the Letters Patent. In the said case, the plaintiff had filed aEsuit on the original side of the Bombay High Court for specificperformance of a contract and prayed for an interim relief by appointinga receiver of the suit-property and injuncting the defendant from disposingof the suit-property during the pendency of the suit. The Single Judge ofthe High Court after hearing the notice of motion had dismissed the saidapplication. The plaintiff therefore filed an appeal before the DivisionFBench of the High Court. The Division Bench of the High Court heldthat the order of the Single Judge refusing to appoint a receiver and togrant an injunction could not be construed to be a ‘judgment’ ascontemplated by Clause 15 of the Letters Patent. Being aggrievedthereby, the plaintiff had approached this Court. Justice S. Murtaza FazalGAli, speaking for himself and Justice Varadarajan, observed thus:

109. Clause 15 makes no attempt to define what a judgment is.As letters patent is a special law which carves out its own sphere,it would not be possible for us to project the definition of the word“judgment” appearing in Section 2(9) of the Code of 1908, whichHdefines “judgment” into the letters patent:

“‘Judgment’ means the statement given by the Judge of thegrounds of a decree or order.”

110. In Mt. Shahzadi Begam, v. Alak Nath [AIR 1935 All 620 :1935 ALJ 681 : 157 IC 347] , Sulaiman, C.J., very rightly pointedout that as the letters patent were drafted long before even theCode of 1882 was passed, the word “judgment” used in the letterspatent cannot be relatable to or confined to the definition of“judgment” as contained in the Code of Civil Procedure whichcame into existence long after the letters patent were given. Inthis connection, the Chief Justice observed [29 Cal LJ 225] asfollows:

“It has been held in numerous cases that as the letters patentwere drafted long before even the earlier Code of 1882 waspassed, the word ‘judgment’ used therein does not mean thejudgment as defined in the existing Code of Civil Procedure.At the same time the word ‘judgment’ does not include everypossible order, final, preliminary or interlocutory passed by aJudge of the High Court.”

111. We find ourselves in complete agreement with theobservations made by the Allahabad High Court on this aspect ofthe matter.

112. The definition of the word “judgment” in sub-section (9) ofSection 2 of the Code of 1908 is linked with the definition of“decree” which is defined in sub-section (2) of Section 2 thus:

“ ‘Decree’ means the formal expression of an adjudicationwhich, so far as regards the Court expressing it, conclusivelydetermines the rights of the parties with regard to all or any ofthe matters in controversy in the suit and may be eitherpreliminary or final. It shall be deemed to include the rejectionof a plaint and the determination of any question within Section47 or Section 144, but shall not include—

(a) any adjudication from which an appeal lies as an appealfrom an order, or (b) any order of dismissal for default.

Explanation.—A decree is preliminary when furtherproceedings have to be taken before the suit can be completely A

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disposed of. It is final when such adjudication completelydisposes of the suit. It may be partly preliminary and partlyfinal.”

113. Thus, under the Code of Civil Procedure, a judgment consistsof the reasons and grounds for a decree passed by a court. As ajudgment constitutes the reasons for the decree it follows as amatter of course that the judgment must be a formal adjudicationwhich conclusively determines the rights of the parties with regardto all or any of the matters in controversy. The concept of ajudgment as defined by the Code of Civil Procedure seems to berather narrow and the limitations engrafted by sub-section (2) ofSection 2 cannot be physically imported into the definition of theword “judgment” as used in clause 15 of the letters patent becausethe letters patent has advisedly not used the terms “order” or“decree” anywhere. The intention, therefore, of the givers of theletters patent was that the word “judgment” should receive a muchwider and more liberal interpretation than the word “judgment”used in the Code of Civil Procedure. At the same time, it cannotbe said that any order passed by a trial Judge would amount to ajudgment; otherwise there will be no end to the number of orderswhich would be appealable under the letters patent. It seems tous that the word “judgment” has undoubtedly a concept of finalityin a broader and not a narrower sense. In other words, a judgmentcan be of three kinds:

(1) A final judgment.— A judgment which decides all thequestions or issues in controversy so far as the trial Judge isconcerned and leaves nothing else to be decided. This wouldmean that by virtue of the judgment, the suit or action broughtby the plaintiff is dismissed or decreed in part or in full. Suchan order passed by the trial Judge indisputably andunquestionably is a judgment within the meaning of the letterspatent and even amounts to a decree so that an appeal wouldlie from such a judgment to a Division Bench.

(2) A preliminary judgment.—This kind of a judgment maytake two forms—(a) where the trial Judge by an orderdismisses the suit without going into the merits of the suit butonly on a preliminary objection raised by the defendant or the SHYAM SEL AND POWER LIMITED AND ANOTHER v. SHYAMSTEEL INDUSTRIES LIMITED [B. R. GAVAI, J.]

party opposing on the ground that the suit is not maintainable.Here also, as the suit is finally decided one way or the other,the order passed by the trial Judge would be a judgment finallydeciding the cause so far as the Trial Judge is concerned andtherefore appealable to the larger Bench. (b) Another shapewhich a preliminary judgment may take is that where the trialJudge passes an order after hearing the preliminary objectionsraised by the defendant relating to maintainability of the suit,e.g., bar of jurisdiction, res judicata, a manifest defect in thesuit, absence of notice under Section 80 and the like, and theseobjections are decided by the trial Judge against the defendant,the suit is not terminated but continues and has to be tried onmerits but the order of the trial Judge rejecting the objectionsdoubtless adversely affects a valuable right of the defendantwho, if his objections are valid, is entitled to get the suit dismissedon preliminary grounds. Thus, such an order even though itkeeps the suit alive, undoubtedly decides an important aspectof the trial which affects a vital right of the defendant andmust, therefore, be construed to be a judgment so as to beappealable to a larger Bench.

(3) Intermediary or interlocutory judgment.— Most of theinterlocutory orders which contain the quality of finality areclearly specified in clauses (a) to (w) of Order 43 Rule 1 andhave already been held by us to be judgments within themeaning of the letters patent and, therefore, appealable. Theremay also be interlocutory orders which are not covered byOrder 43 Rule 1 but which also possess the characteristicsand trappings of finality in that, the orders may adversely affecta valuable right of the party or decide an important aspect ofthe trial in an ancillary proceeding. Before such an order canbe a judgment the adverse effect on the party concerned mustbe direct and immediate rather than indirect or remote. Forinstance, where the trial Judge in a suit under Order 37 of theCode of Civil Procedure refuses the defendant leave to defendthe suit, the order directly affects the defendant because heloses a valuable right to defend the suit and his remedy isconfined only to contest the plaintiff’s case on his own evidencewithout being given a chance to rebut that evidence. As suchan order vitally affects a valuable right of the defendant it will AB

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undoubtedly be treated as a judgment within the meaning ofthe letters patent so as to be appealable to a larger Bench.Take the converse case in a similar suit where the trial Judgeallows the defendant to defend the suit in which case althoughthe plaintiff is adversely affected but the damage or prejudicecaused to him is not direct or immediate but of a minimal natureand rather too remote because the plaintiff still possesses hisfull right to show that the defence is false and succeed in thesuit. Thus, such an order passed by the trial Judge would notamount to a judgment within the meaning of clause 15 of theletters patent but will be purely an interlocutory order. Similarly,suppose the trial Judge passes an order setting aside an exparte decree against the defendant, which is not appealableunder any of the clauses of Order 43 Rule 1 though an orderrejecting an application to set aside the decree passed ex partefalls within Order 43 Rule 1 clause (d) and is appealable, theserious question that arises is whether or not the order firstmentioned is a judgment within the meaning of letters patent.The fact, however, remains that the order setting aside the exparte decree puts the defendant to a great advantage andworks serious injustice to the plaintiff because as a consequenceof the order, the plaintiff has now to contest the suit and isdeprived of the fruits of the decree passed in his favour. Inthese circumstances, therefore, the order passed by the trialJudge setting aside the ex parte decree vitally affects thevaluable rights of the plaintiff and hence amounts to aninterlocutory judgment and is therefore, appealable to a largerBench.”

114. In the course of the trial, the trial Judge may pass a numberof orders whereby some of the various steps to be taken by theparties in prosecution of the suit may be of a routine nature whileother orders may cause some inconvenience to one party or theother, e.g., an order refusing an adjournment, an order refusing tosummon an additional witness or documents, an order refusing tocondone delay in filing documents, after the first date of hearingan order of costs to one of the parties for its default or an orderexercising discretion in respect of a procedural matter againstone party or the other. Such orders are purely interlocutory andcannot constitute judgments because it will always be open to the aggrieved party to make a grievance of the order passed againstthe party concerned in the appeal against the final judgment passedby the trial Judge.

115. Thus, in other words every interlocutory order cannot beregarded as a judgment but only those orders would be judgmentswhich decide matters of moment or affect vital and valuable rightsof the parties and which work serious injustice to the partyconcerned. Similarly, orders passed by the trial Judge decidingquestion of admissibility or relevancy of a document also cannotbe treated as judgments because the grievance on this score canbe corrected by the appellate court in appeal against the finaljudgment.

116. We might give another instance of an interlocutory orderwhich amounts to an exercise of discretion and which may yetamount to a judgment within the meaning of the letters patent.Suppose the trial Judge allows the plaintiff to amend his plaint orinclude a cause of action or a relief as a result of which a vestedright of limitation accrued to the defendant is taken away andrendered nugatory. It is manifest that in such cases, although theorder passed by the trial Judge is purely discretionary andinterlocutory, it causes gross injustice to the defendant who isdeprived of a valuable right of defence to the suit. Such an order,therefore, though interlocutory in nature contains the attributesand characteristics of finality and must be treated as a judgmentwithin the meaning of the letters patent. This is what was held bythis Court in Shanti Kumar case [(1974) 2 SCC 387 : AIR 1974SC 1719 : (1975) 1 SCR 550] , as discussed above.

117. Let us take another instance of a similar order which maynot amount to a judgment. Suppose, the trial Judge allows theplaintiff to amend the plaint by adding a particular relief or takingan additional ground which may be inconsistent with the pleastaken by him but is not barred by limitation and does not workserious injustice to the defendant who would have ampleopportunity to disprove the amended plea taken by plaintiff at thetrial. In such cases, the order of the trial Judge would only be asimple interlocutory order without containing any quality of finalityand would therefore not be a judgment within the meaning ofclause 15 of the letters patent.

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118. The various instances given by us would constitute sufficientguidelines to determine whether or not an order passed by thetrial Judge is a judgment within the meaning of the letters patent.We must however hasten to add that instances given by us areillustrative and not exhaustive. We have already referred to thevarious tests laid down by the Calcutta, Rangoon and MadrasHigh Courts. So far as the Rangoon High Court is concerned wehave already pointed out that the strict test that an order passedby the trial Judge would be a judgment only if it amounts to adecree under the Code of Civil Procedure, is legally erroneousand opposed to the very tenor and spirit of the language of theletters patent. We, therefore, do not approve of the test laid downby the Rangoon High Court and that decision therefore has to beconfined only to the facts of that particular case because thatbeing a case of transfer, it is manifest that no question of anyfinality was involved in the order of transfer. We would like toadopt and approve of generally the tests laid down by Sir White,C.J., in Tuljaram Row case [ILR 35 Mad 1] (which seems tohave been followed by most of the High Courts) minus the broaderand the wider attributes adumbrated by Sir White, C.J., or moreexplicitly by Krishnaswamy Ayyar, J. as has been referred to above.

119. Apart from the tests laid down by Sir White, C.J., the followingconsiderations must prevail with the court:

“(1) That the trial Judge being a senior court with vastexperience of various branches of law occupying a very highstatus should be trusted to pass discretionary or interlocutoryorders with due regard to the well settled principles of civiljustice. Thus, any discretion exercised or routine orders passedby the trial Judge in the course of the suit which may causesome inconvenience or, to some extent, prejudice to one partyor the other cannot be treated as a judgment otherwise theappellate court (Division Bench) will be flooded with appealsfrom all kinds of orders passed by the trial Judge. The courtsmust give sufficient allowance to the trial Judge and raise apresumption that any discretionary order which he passes mustbe presumed to be correct unless it is ex facie legally erroneousor causes grave and substantial injustice.

SHYAM SEL AND POWER LIMITED AND ANOTHER v. SHYAMSTEEL INDUSTRIES LIMITED [B. R. GAVAI, J.]

(2) That the interlocutory order in order to be a judgment mustcontain the traits and trappings of finality either when the orderdecides the questions in controversy in an ancillary proceedingor in the suit itself or in a part of the proceedings.

(3) The tests laid down by Sir White, C.J. as also by Sir Couch,C.J. as modified by later decisions of the Calcutta High Courtitself which have been dealt with by us elaborately should beborne in mind.”

120. Thus, these are some of the principles which might guide aDivision Bench in deciding whether an order passed by the trialJudge amounts to a judgment within the meaning of the letterspatent. We might, however, at the risk of repetition give illustrationsof interlocutory orders which may be treated as judgments:

(1) An order granting leave to amend the plaint by introducinga new cause of action which completely alters the nature ofthe suit and takes away a vested right of limitation or any othervaluable right accrued to the defendant.

(2) An order rejecting the plaint.

(3) An order refusing leave to defend the suit in an actionunder Order 37, of the Code of Civil Procedure.

(4) An order rescinding leave of the trial Judge granted by himunder clause 12 of the letters patent.

(5) An order deciding a preliminary objection to themaintainability of the suit on the ground of limitation, absenceof notice under Section 80, bar against competency of the suitagainst the defendant even though the suit is kept alive.

(6) An order rejecting an application for a judgment onadmission under Order 12 Rule 6.

(7) An order refusing to add necessary parties in a suit underSection 92 of the Code of Civil Procedure.

(8) An order varying or amending a decree.

(9) An order refusing leave to sue in forma pauperis.

(10) An order granting review.

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(11) An order allowing withdrawal of the suit with liberty tofile a fresh one.

(12) An order holding that the defendants are not agriculturistswithin the meaning of the special law.

(13) An order staying or refusing to stay a suit under Section10 of the Code of Civil Procedure.

(14) An order granting or refusing to stay execution of thedecree.

(15) An order deciding payment of court fees against theplaintiff.”

121. Here, it may be noted that whereas an order deciding thenature of the court fees to be paid by the plaintiff would be ajudgment but this order affects only the plaintiff or the Governmentand not the defendant. Thus, only the plaintiff or the Governmentas the case may be will have the right to file an appeal in theDivision Bench and not the defendant because the question ofpayment of court fees is a matter between the Government andthe plaintiff and the defendant has no locus in this regard.

122. We have by way of sample laid down various illustrativeexamples of an order which may amount to judgment but it is notpossible to give such an exhaustive list as may cover all possiblecases. Law with its dynamism, pragmatism and vastness is sucha large ocean that it is well-nigh impossible for us to envisage orprovide for every possible contingency or situation so as to evolvea device or frame an exhaustive formula or strategy to confineand incarcerate the same in a strait-jacket. We, however, hopeand trust that by and large the controversy raging for about acentury on the connotation of the term “judgment” would havenow been settled and a few cases which may have been leftout, would undoubtedly be decided by the court concerned inthe light of the tests, observations and principles enunciated byus.

123. In the instant case, as the order of the trial Judge was onerefusing appointment of a receiver and grant of an ad-interiminjunction, it is undoubtedly a judgment within the meaning of theletters patent both because in view of our judgment. Order 43

Rule 1 applies to internal appeals in the High Court and apartfrom it such an order even on merits contains the quality of finalityand would therefore be a judgment within the meaning of clause15 of the letters patent. The consistent view taken by the BombayHigh Court in the various cases noted above or other cases whichmay not have been noticed by us regarding the strict interpretationof clause 15 of the letters patent are hereby overruled and theBombay High Court is directed to decide the question in future inthe light of our decision.

124. We, therefore, hold that the order passed by the trial Judgein the instant case being a judgment within the meaning of clause15 of the letters patent, the appeal before the Division Bench wasmaintainable and the Division Bench of the High Court was inerror in dismissing the appeal without deciding it on merits. Wehave already directed the High Court to decide the appeal onmerits by our formal order dated April 22, 1981.”

17. It could thus be seen that though this Court has held that theterm ‘judgment’ used in Letters Patent could not be given a narrowermeaning as is given to the term ‘judgment’ used in CPC and that itshould receive a much wider and more liberal interpretation, however, atthe same time, each and every order passed by the trial judge could notbe construed to be a ‘judgment’ inasmuch as there will be no end to thenumber of orders which would be appealable under the Letters Patent.It has been held that the word ‘judgment’ has undoubtedly a concept offinality in a broader and not in a narrower sense. It has been held thatwhere an order vitally affects a valuable right of the defendants, it willundoubtedly be treated as a ‘judgment’ within the meaning of LettersPatent so as to be appealable to a larger Bench.

18. It has been held that most of the interlocutory orders whichcontain the quality of finality are clearly specified in clauses (a) to (w)of Order XLIII Rule 1 CPC and would be ‘judgments’ within the meaningof the letters patent and, therefore, appealable. However, there may beinterlocutory orders which are not covered by Order XLIII Rule 1 CPCbut which also possess the characteristics and trappings of finalityinasmuch as such orders may adversely affect a valuable right of theparty 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 A

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Aand immediate rather than indirect or remote. Various illustrations ofinterlocutory orders have been given by this Court in para (120), whichcould be held to be appealable. This Court held that though any discretionexercised or routine orders passed by the trial Judge in the course of thesuit may cause some inconvenience or, to some extent, prejudice to oneparty or the other, they cannot be treated as a ‘judgment’ unless theyBcontain the traits and trappings of finality. This Court has expressed inpara (122) that though it had, by way of sample, laid down variousillustrative examples of an order which may amount to a judgment, itwould not be possible to give such an exhaustive list as may cover allpossible areas. This Court, in the facts of the said case, held that anCorder of the Single Judge refusing appointment of a receiver and grantof an ad-interim injunction was undoubtedly a ‘judgment’ within themeaning of Letters Patent, both because Order XLIII Rule 1 CPC appliesto internal appeals in the High Court and that such an order even onmerits contains the quality of finality and would therefore be a ‘judgment’within the meaning of Clause 15 of the Letters Patent. D

19. Justice A.N. Sen, while holding that the order in question wasappealable under Section 104(1) read with Order XLIII CPC, did notfind it necessary to go into the question as to whether such an orderwould be appealable under Clause 15 of the Letters Patent. It will beapposite to refer to the following observations of the learned Judge:E

“151. ……In my opinion, an exhaustive or a comprehensivedefinition of ‘judgment’ as contemplated in Clause 15 of the LettersPatent cannot be properly given and it will be wise to rememberthat in the Letters Patent itself, there is no definition of the word‘judgment’. The expression has necessarily to be construed andFinterpreted in each particular case. It is, however, safe to saythat if any order has the effect of finally determining anycontroversy forming the subject-matter of the suit itself or anypart thereof or the same affects the question of court’s jurisdictionor the question of limitation, such an order will normally constituteG‘judgment’ within the meaning of Clause 15 of the LettersPatent…….”

20. Justice Sen reiterated that it was safe to say that if any orderhas the effect of finally determining any controversy forming the subject-matter of the suit itself or any part thereof or the same affects the questionHof court’s jurisdiction or the question of limitation, such an order will normally constitute ‘judgment’ within the meaning of Clause 15 of LettersPatent. He however observed that the expression has necessarily to beconstrued and interpreted in each particular case.

21. It could thus be seen that both the judgments of Justice S.Murtaza Fazal Ali as well as Justice A.N. Sen have a common threadthat, as to whether an order impugned would be a ‘judgment’ within thescope of Clause 15 of Letters Patent, would depend on facts andcircumstances of each case. However, for such an order to be construedas a ‘judgment’, it must have the traits and trappings of finality. To comewithin the ambit of ‘judgment’, such an order must affect vital andvaluable rights of the parties, which works serious injustice to the partyconcerned. Each and every order passed by the Court during the courseof the trial, though may cause some inconvenience to one of the partiesor, to some extent, some prejudice to one of the parties, cannot be treatedas a ‘judgment’. If such is permitted, the floodgate of appeals would beopen against the order of Single Judge.

22. In the light of this observation, we will have to consider as towhether the order passed by the learned Single Judge dated 2[nd] April2019, could be construed as a ‘judgment’ within the meaning of Clause15 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 bythree weeks. No doubt, that the learned Single Judge has at one placeobserved that prima facie, he was of the view that ‘SHYAM’ being apart of the business name of the appellants-defendants, no injunctionshould be passed to restrain the appellants-defendants from using thesaid word ‘SHYAM’ on their packaging, but in the same order, he hasclarified that all the observations he has made in the said order wereprima facie for the purpose of passing an order at the ad-interim stageand the same would have no relevance at the time of considering anddeciding the said application after exchange of affidavits.

24. It could thus be seen that the order in fact was postponementof the question as to whether the respondent-plaintiff was entitled togrant of an ad-interim injunction or not, and that too, by merely threeweeks. The order was only giving an opportunity to the appellants- A

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Adefendants to file their affidavit-in-opposition within a period of twoweeks. The order clarified that no prayer for extension of time shall beentertained. The learned Single Judge therefore postponed the issue withregard to consideration of the prayer of the respondent-plaintiff for grantof ad-interim injunction by a period of mere three weeks and that tooonly in order to afford an opportunity to the appellants-defendants to fileBtheir affidavit-in-opposition. While doing the same, the respondent-plaintiff’s interest was also protected, inasmuch as the appellants-defendants were directed to maintain weekly accounts of sale of theirproducts covered by Class 6, which were sold under the mark ‘SHYAM’.

C25. It is thus clear that there was no adjudication with regard tothe rights of the respondent-plaintiff to get an ad-interim injunction duringthe pendency of the suit. Though by postponement of the issue withregard to grant of ad-interim injunction, the order might have causedsome inconvenience and may be, to some extent, prejudice to therespondent-plaintiff; the same could not be treated as a ‘judgment’Dinasmuch as there was no conclusive finding as to whether therespondent-plaintiff was entitled for grant of ad-interim injunction or not.As such, the order passed by the learned Single Judge did not containthe traits and trappings of finality. If it is held otherwise, this will open afloodgate of appeals for parties who may even challenge the order ofEadjournment or grant of time to the other side to file affidavit-in-reply.We are therefore of the considered view that the order dated 2[nd] April2019 cannot be construed to be a ‘judgment’ within the meaning of Clause15 of Letters Patent and as such, the appeal to the Division Bench of theHigh Court was not tenable.

F26. We clarify that as held in Shah Babulal Khimji (supra), weare holding so, taking into consideration the facts and circumstances asthey appear in the present matter.

27. With this, we could have very well allowed the present appealby setting aside the impugned judgment and order of the Division BenchGof the High Court. However, since we find that the approach of theDivision Bench of the High Court was totally contrary to the variouswell-settled principles of law, we are required to consider the correctnessof various findings and observations of the Division Bench of the HighCourt in the impugned judgment and order.H

28. The learned Single Judge passed an order on 2[nd] April 2019. Itappears that the appeal to the Division Bench of the High Court wasfiled immediately thereafter in the month of April, though the exact dateof filing of appeal is not known. The judgment and order impugned hereinwas passed after a gap of about 8-9 months from the date of the orderpassed by the learned Single Judge. The perusal of the judgment andorder impugned herein would clearly reveal that the counsel for theappellants-defendants had specifically submitted that the appeal wasagainst an ad-interim order and therefore, the appellate court should notinterfere by substituting its views but should instead direct a speedyhearing of the interim application of the respondent-plaintiff. The DivisionBench of the High Court after recording the said submission, observedthus:

“Before entering into a discussion with regard to the merits of thiscase I say that all the facts and papers which were necessary fordeciding the prima facie case of the parties were before us. Onthese facts and evidence we were in a position to assess theirrespective prima facie case and the balance of convenience.

In those circumstances we propose to dispose of the interlocutoryapplication ourselves instead of entering a prima facie finding andrelegating it to the court below for its disposal. That would beunnecessary prolongation of the litigation and utter wastage oftime.”

29. It is difficult to appreciate the anxiety on the part of the DivisionBench of the High Court to itself dispose of the interlocutory applicationinstead of relegating it to the court below for its disposal. When theDivision Bench of the High Court itself took 8-9 months to decide theappeal, it is difficult to understand as to what the learned Judges of theDivision Bench of the High Court meant by “unnecessary prolongationof the litigation and utter wastage of time”. If the learned Judges of theDivision Bench were so much concerned with the prolongation oflitigation, they could have very well requested the learned Single Judgeto decide the injunction application within a stipulated period. Instead ofwaiting for a period of 8-9 months, this could have been done by them atthe very first instance when the appeal was listed. The hierarchy of thetrial court and the appellate court exists so that the trial court exercisesits discretion upon the settled principles of law. An appellate court, after ABCD

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Athe findings of the trial court are recorded, has an advantage ofappreciating the view taken by the trial judge and examining thecorrectness or otherwise thereof within the limited area available. If theappellate court itself decides the matters required to be decided by thetrial court, there would be no necessity to have the hierarchy of courts.As observed by this Court in Monsanto Technology LLC (supra), theBappellate court cannot usurp the jurisdiction of the Single Judge to decideas to whether the tests of prima facie case, balance of convenience andirreparable injury are made out in the case or not.

30. Though there are various observations made by the DivisionCBench of the High Court, which in our view, are totally unwarranted, werefrain ourselves to refer to them as any comment thereon wouldunnecessarily prejudice the rights of either of the parties. We will onlylimit ourselves to the minimum possible observations of the Division Benchof the High Court.

D31. Though the Division Bench of the High Court, referring to thejudgment of this Court in the case of Wander Ltd. (supra), observesthat the appellate court will not substitute its opinion with that of the trialcourt in an interim application unless there is a perversity in the order, itfails to discuss as to how the view taken by the trial judge was eitherperverse or impossible. At one place, the Division Bench of the HighECourt observes that:

“Now, the question is whether the learned single judgeexercised his discretion correctly and whether this courtshould interfere with that exercise of discretion.”and in the same breath observes that:F

“Therefore, we have considered the case on the basis ofthe petition as well as the additional evidence before us.In our opinion, this court is not called upon only to evaluatewhether the exercise of discretion by the learned trial courtGwas right or wrong.”

Then immediately thereafter, the Division Bench of the High Courtobserves that:

“This court is duty bound to pass a suitable interim order,pending trial of the suit.”H

32. We ask a question to ourselves that, in an appeal against theorder of a Single Judge, if the Division Bench of the High Court is notrequired to evaluate the question as to whether the discretion exercisedby the trial court was right or wrong, what else is it required to do. Weare unable to trace the source of the duty of the appellate court whichmakes it bound to pass a suitable interim order pending the trial of thesuit.

33. The Division Bench of the High Court further observes thatfor doing so, it has to put itself in a position as if it was moved to pass aninterim order in the suit. At the cost of repetition, we reiterate that if theapproach of the Division Bench of the High Court is to be upheld, thenthere would be no necessity to have the trial courts at all. Thereafter, theDivision Bench of the High Court observes that the case was differentfrom Wander Ltd. (supra). The Division Bench of the High Court stopsat that. It does not even take the trouble to observe as to how the scopeof the appeal before it was different from the scope as defined by thisCourt in Wander Ltd. (supra). In a line thereafter, the Division Benchof the High Court observes that prima facie case on facts theoreticallyis in favour of the appellant therein (plaintiff) and thereafter, passesvarious directions including the injunction. Though, in fact, it allows theappeal in entirety by allowing an application under Order XXXIX Rules1 and 2 CPC pendente lite the suit, it graciously observes in the ultimatepara that it was only modifying the order dated 2[nd] April 2019 passed bythe learned Single Judge.

34. The learned Judges of the Division Bench of the High Courthave taken pains to make a mention of the judgment of this Court in thecase of Wander Ltd. (supra). This judgment has been guiding theappellate courts in the country for decades while exercising their appellatejurisdiction considering the correctness of the discretion and jurisdictionexercised by the trial courts for grant or refusal of interlocutoryinjunctions. In the said case, the learned Single Judge had refused anorder of temporary injunction in favour of the plaintiff who was claimingto be a registered proprietor of the registered trade mark. The DivisionBench of the High Court had reversed the order passed by the learnedSingle Judge and granted interim injunction. Reversing the order of theDivision Bench of the High Court and maintaining the order of the learnedSingle Judge, this Court observed thus:

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1198SUPREME COURT REPORTS

A“14. The appeals before the Division Bench were against theexercise of discretion by the Single Judge. In such appeals, theappellate court will not interfere with the exercise of discretion ofthe court of first instance and substitute its own discretion exceptwhere the discretion has been shown to have been exercisedarbitrarily, or capriciously or perversely or where the court hadBignored the settled principles of law regulating grant or refusal ofinterlocutory injunctions. An appeal against exercise of discretionis said to be an appeal on principle. Appellate court will not reassessthe material and seek to reach a conclusion different from theone reached by the court below if the one reached by that courtCwas reasonably possible on the material. The appellate court wouldnormally not be justified in interfering with the exercise of discretionunder appeal solely on the ground that if it had considered thematter at the trial stage it would have come to a contrary conclusion.If the discretion has been exercised by the trial court reasonablyDand in a judicial manner the fact that the appellate court wouldhave taken a different view may not justify interference with thetrial court’s exercise of discretion. After referring to these principlesGajendragadkar, J. in Printers (Mysore) Private Ltd. v. PothanJoseph [(1960) 3 SCR 713 : AIR 1960 SC 1156] : (SCR 721)

E“... These principles are well established, but as has beenobserved by Viscount Simon in Charles Osenton &Co. v. Jhanaton [1942 AC 130] ‘...the law as to the reversalby a court of appeal of an order made by a judge below in theexercise of his discretion is well established, and any difficultythat arises is due only to the application of well settled principlesFin an individual case’.”

The appellate judgment does not seem to defer to this principle.”

35. Though the learned Judges of the Division Bench of the HighCourt have on more than one occasion referred to the judgment of thisGCourt in Wander Ltd. (supra), they have not even, for namesake,observed as to how the discretion exercised by the learned Single Judgewas exercised arbitrarily, capriciously or perversely. In our view, havingwaited for 8-9 months after the learned Single Judge had passed theorder, all that ought to have been done by the learned Judges of theDivision Bench of the High Court was to request the learned SingleH

Judge to decide the application for ad-interim injunction, which in fact,the learned Single Judge had scheduled to do after three weeks from 2[nd]April 2019. In our view, it was not even necessary for the Division Benchof the High Court to have waited till 24[th] December 2019 and taken thepains of deciding the application at first instance. It could have verywell, in the month of April, 2019 itself, done the exercise of requestingthe learned Single Judge to decide the application as scheduled.

36. In any event, though the Division Bench of the High Courtobserves that for deciding the question with regard to grant of interiminjunction, it has to put itself in a position as if it was moved to pass aninterim order in the suit, it even fails to take into consideration the principleswhich a court is required to take into consideration while deciding suchan application. It is a settled principle of law that while considering thequestion of grant of interim injunction, the courts are required to considerthe three tests of prima facie case, balance of convenience and irreparableinjury. Besides a stray observation that the respondent-plaintiff has madeout a prima facie case, there is no discussion as to how a prima faciecase was made out by the respondent-plaintiff. In any case, insofar asthe tests of balance of convenience and irreparable injury are concerned,there is not even a mention with regard to these in the impugned judgmentand order of the Division Bench of the High Court. In our view, theapproach of the Division Bench of the High Court was totally unwarrantedand uncalled for. We refrain ourselves from using any stronger words.

37. We find that it is high time that this Court should take note offrivolous appeals being filed against unappealable orders wasting preciousjudicial time. As it is, the courts in India are already over-burdened withhuge pendency. Such unwarranted proceedings at the behest of the partieswho can afford to bear the expenses of such litigations, must bediscouraged. We therefore find that the present appeal deserves to beallowed with token costs. The respondent-plaintiff shall pay a token costof Rs.5 lakhs to the Supreme Court Middle Income Group Legal AidSociety (MIG).

38. In the result, the appeal is allowed. The impugned judgmentand order dated 24[th] December 2019 is quashed and set aside. Thelearned Single Judge is requested to decide the application filed by therespondent-plaintiff under Order XXXIX Rules 1 and 2 CPC asexpeditiously as possible and in any case, within a period of six weeksfrom the date of this judgment. Till further orders are passed by the A

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39. We clarify that we have not touched upon the merits of thematter and none of the observations either by the learned Single Judgeor the Division Bench of the High Court or by us, would in any mannerBweigh with the learned Single Judge while deciding the application forinjunction filed by the respondent-plaintiff.

40. Pending application(s), if any, shall stand disposed of in theabove terms.

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Bibhuti Bhushan Bose

(Assisted by : Shubhanshu Das, LCRA)

Appeal allowed.

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