M/s Bharaj Manufacturing Co. vs Jai Pal and others

Harbans Lal, J.—The Petitioner filed a suit in the Court of the District Judge, Jullundur, for the issuance of a per-manant injunction against the Respondent relating to his registered trade mark. During the pendency of the same, an application under Order XXXIX rules 1 and 2 read with Section 151(sic) CPC (hereinafter called the Code), for the issuanse(sic) a temporary inunction to restrain the Respondents from using the trade mark of ''VEMCO'' which is alleged to be deceptively similar to ''BEMCO'' of the Petitioner, registered under the Trade and Merchandise Marks Act, was relied The Additional District Judge, Jullundur, vide his order dated January 10, 1979, issued the ad interim injunction. The Respondents challenged the same in appeal in F. A O. No. 50 of 1979, which was admitted on February 5, 1979 but the operation of the ad interim injunction was not stayed. The case of the Petitioner is that the ad interim injunction had been disobeyed by the Respondents consciously and deliberately and as such, they are guilty of the Contempt of Court u/s 10 of the Contempt of Courts Act, 1971(sic) (hereinafter called the Act). In reply, the Respondents besides controverting the allegations of the Petitioner on merits, have raised a preliminary objection that against the violation of an ad interim injunction, a petition under Order XXXIX Rule 2A of the Code was filed by the Petitioner in the trial Court which is still pending as such, the present petition is liable to be dismissed.

According to the learned Counsel for the Petitioner, though this petition had been filed and is pending in the trial Court but the proceedings in the entire suit including the proceedings in the said petition had been stayed by the trial Court as a result of the stay order passed in Civil Revision No. 247 of 1979 (M/s Vikas Manufacturing Co. Roper v. M\\s Bharaj Manufacturing Co. (Regd) Jullundus), by Goyal, J., on January 10, 1979. According to the learned Counsel for the Respondents, the said revision petition was filed u/s 115 of the Code(sic) against the order of the Additional District Judge, Jullandur, dated January, 10, 1979, dismissing the application of the Respondents u/s 111 of the Trade and Merchandise Marks Act, for the purpose of rectication(sic) and that only the proceedings in the main suit were stayed. Attention was also drawn to the order of the Division Bench passed on February 5, 1979, in F. A. O. No. 50 of 1979, a perusal(sic) of which shows that the above referred to first appeal and the civil revision were ordered to be beard together and the request for the grant of stay of the ad interim injunction in the suit was declined.

It was contended by the learned Counsel for the Petitioner, that the order regarding interim injection issued by the trial Court had merged in the order of the High Court in the first appeal viz, F A. O No. 50 of 1979, by which the stay of interim injunction was refused and as such, no proceedings under Order XXXIX Rule 2A of the Code, for disobedience of the ad interim injunction were maintainable in the trial Court, Reliance in this regard was placed on Collector of Customs, Calcutta Vs. East India Commercial Co. Ltd., The ratio of this decision, however, renders no help to the contention of the counsel for the Petitioner Therein it was clearly held that when an appeal filed against an order is finally disposed of, the order therein will be the operative order and the order of the lower Court will stand merged in the order of the appellate Court irrespective of the fact whether by the said order the order under appeal is reversed, modified or affirmed. In the present case, it is not disputed that the appeal filed by the Respondents has not yet been finally disposed of. The mere fact that the operation of the ad interim injunction issued by the trial Court was not stayed by the High Court, cannot be interpreted to mean that the ad interim order by the trial Court has been superseded by an order of the appellate Court. It is the order of the trial Court which is still in operation till the matter is considered finally by disposal of the appeal.

It was then contended that even if the application under Order XXXIX Rule 2A of the Code, to punish the Respondents for disobedience of the ad interim injunction is pending the same does not take away the jurisdiction of this Court to proceed against the Respondents u/s 10 read with Section 12(sic) of the Act. The jurisdiction of the Court u/s 10 is taken away only in a case where the alleged contempt is in respect of a Court subordinate to it and where such contempt is an offence punishable under the Indian Penal Code. So far as this principle of law is concerned, there can be no exception to it, but the question is: when an equally effective and adequate remedy against the disobedience of the order of a subordinate Court has been provided under Order XXXIX rule ? A of the Code and has also been availed of should the High Court exercise its discretion in looking into matter of the alleged contempt ? In similar circumstances, S C. Mittal, J. declined to proceed u/s 12 of the Act Hari Parshad v. Khilla Ram and Ors. 1974 P. L. J. (Cr.) 71(sic). I am in entire agreement with this principle of law. In matters of contempt, the only function of the aggrieved person is to bring it to the notice of the Court the matter regarding the con-tempt alleged to have been committed by any person. Thereafter, the matter rsts(sic) exclusively between the Court and the alleged contemner. In cases of disobedience of the orders of the subordinate Courts regarding the interim injunction issued under Order XXXIX rules 1 and 2 of the Code the same can be adequately punished by the trial Court itself under Order XXXIX Rule 2A of the Code. The trial Court in such matters is in a better position as the suit is still pending and the evidence also is to be recorded there Consequently, the preliminary objection of the Respondents is upheld and the contempt petition is dismissed on this ground alone. However this decision will have no bearing on the merits of the case put forth by the Petitioner in this petition regarding the allegations of discbedirnce(sic) of the ad interim injunction.

Lastly, it was contended by the learned Counsel for the Petitioner that in the appeal filed by the Respondents, the entire record relating to the suit including the application filed by the Petitioner under Order XXXIX Rule 2A of the Code has been sent by the trial Court to the High Court under its orders and therefore, the Petitioner will not be in position to pursue his remedy in the trial Court till the appeal is finally decided in the High Court though the stay of the ad interim injunction was specifically declined. It is, therefore, clarified that the stay of the proceedings in the suit, as ordered by Goyal, J., by his order dated January 30, 1979 in Civil Revision No. 247 of 1979, will not result in stay of the proceedings in the application of the Petitioner filed under Order XXXIX Rule 2A of the Code as the ad interim injunction issued by the trial Court was not stayed by the Division Bench in F.A.O. No. 50(sic) of 1979. If the record relating to the said application has been received in the High Court alongwith the record of the suit between the parties, the same will be sent back and the trial Court will dispose of the same in accordance with law. In view of the peculiar circumstances of the case, the parties will bear their own costs. The rule is discharged.