SHYAM SEL AND POWER LIMITED AND versus SHYAM STEEL INDUSTRIES LIMITED
[2022] 3 S.C.R. 1173, Supreme Court of India, 2022
Outcome: Appeal(s) allowed (Granted)
Segment: Ratio
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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 were
manufacturers and sellers of Thermo-Mechanically treated bars
(TMT bars) – Respondent-plaintiff filed civil suit before Single Judge
of 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 temporary
injunction came to be filed – The application claimed an order of
injunction restraining appellants-defendants from infringing
respondent-plaintiff’s trade mark ‘SHYAM’ – The Single Judge made
a prima facie observation that ‘SHYAM’ being a part of the business
name of appellants-defendants, no injunction should be passed to
restrain the appellants-defendants from using the said word ‘SHYAM’
on their packaging; and directed the matter to be listed after three
weeks – Respondent-plaintiff filed intra-court appeal – Division
Bench of High Court granted injunction restraining the appellants
from using the mark ‘SHYAM’ till disposal of the suit – ‘Tenability
of appeal’ against the order of Single Judge – Correctness of the
‘approach of the Division Bench’– Held: Each and every order
passed by trial judge could not be construed to be
“judgment” – To
be construed as a “judgment”, order must have the traits and
trapping of finality and such order must affect vital and valuable
rights of the parties – Though the order of the Single Judge might
have caused some inconvenience and prejudice to the respondent,
the same could not be treated as ‘judgment’ – The order of Single
Judge did not contain traits and trappings of finality – The said
order cannot be construed to be a ‘judgment’ and the appeal to the
Division Bench was not tenable – Approach of the Division Bench
was totally contrary to the various principles of law – If the appellate
court itself decides the matters required to be decided by the trial
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court there would be no necessity to have the hierarchy of the courts
– Division Bench failed to observe as how the discretion exercised
by the Single Judge was exercised arbitrarily, capriciously or
perversely – There was no discussion as to how a prima facie case
was made out by the respondent – Tests of ‘balance of convenience’
and ‘irreparable injury’ were not even mentioned – Approach of
Division Bench of High Court was totally unwarranted and uncalled
for.
Appeal – Letters Patent appeal – Term ‘judgment’ used in
Letters Patent – Held: Though the term ‘judgment’ used in Letters
Patent could not be given a narrower meaning as is given to the
term ‘judgment’ used in CPC and it should receive a much wider
and more liberal interpretation, however, at the same time, each
and every order passed by the trial judge could not be construed to
be a ‘judgment’ inasmuch as there will be no end to the number of
orders which would be appealable under the Letters Patent – The
word ‘judgment’ has undoubtedly a concept of finality in a broader
and not in a narrower sense – Where an order vitally affects a
valuable right of the defendants, it will undoubtedly be treated as a
‘judgment’ within the meaning of Letters Patent so as to be
appealable to a larger Bench.
Injunction – Temporary Injunction – Grant of – Three tests
of 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 are
recorded, has an advantage of appreciating the view taken by the
trial judge and 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.
Words and Phrases – Term ‘judgment’ – Meaning of.
Allowing the appeal, the Court
HELD:1.1 Though the term ‘judgment’ used in Letters
Patent could not be given a narrower meaning as is given to the
term ‘judgment’ used in CPC and it should receive a much wider
and more liberal interpretation, however, at the same time, each
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and every order passed by the trial judge could not be construed
to be a judgment’ inasmuch as there will be no end to the number
of orders which would be appealable under the Letters Patent.
The word ‘judgment’ has undoubtedly a concept of finality in a
broader and not in a narrower sense. Where an order vitally affects
a valuable right of the defendants, it will undoubtedly be treated
as a ‘judgment’ within the meaning of Letters Patent so as to be
appealable 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 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. [Para 21][1193-
B-D]
1.3. In the present case, there was no adjudication with
regard to the rights of the respondent-plaintiff
to get an ad-interim
injunction during the pendency of the suit. Though by
postponement of the issue with regard to grant of ad-interim
injunction, the order might have caused some inconvenience and
may be, to some extent, prejudice to the respondent-plaintiff;
the same could not be treated as a ‘judgment’ inasmuch as there
was no conclusive finding as to whether the respondent-plaintiff
was entitled for grant of ad-interim injunction or not. As such,
the order passed by the Single Judge did not contain the traits
and trappings of finality. If it is held otherwise, this will open a
floodgate of appeals for parties who may even challenge the order
of adjournment or grant of time to the other side to file
affidavit-in-reply. The order dated 2nd April 2019 of the Single
SHYAM SEL AND POWER LIMITED AND ANOTHER v. SHYAM
STEEL INDUSTRIES LIMITED
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Judge 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 not
tenable. [Para 25][1194-C-F]
2. It is difficult to appreciate the anxiety on the part of the
Division Bench of the High Court to itself dispose of the
interlocutory application instead of relegating it to the court below
for its disposal. When the Division Bench of the High Court itself
took 8-9 months to decide the appeal, it is difficult to understand
as to what the Judges of the Division Bench of the High Court
meant by “unnecessary prolongation of the litigation and utter
wastage of time”. If the Judges of the Division Bench were so
much concerned with the prolongation of litigation, they could
have very well requested the Single Judge to decide the injunction
application within a stipulated period. Instead of waiting for a
period of 8-9 months, this could have been done by them at the
very first instance when the appeal was listed. The hierarchy of
the trial court and the appellate court exists so that the trial court
exercises its discretion upon the settled principles of law. An
appellate court, after the findings of the trial court are recorded,
has an advantage of appreciating the view taken by the trial judge
and 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. [Para 29][1195-F-
H; 1196-A-B]
3.1. The Judges of the Division Bench of the High Court
have not even, for namesake, observed as to how the discretion
exercised 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 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
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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 to these in the impugned judgment
and order of the Division Bench of the High Court. The approach
of the Division Bench of the High Court was totally unwarranted
and uncalled for. [Para 36][1199-B-E]
Wander Ltd. and Another v. Antox India P. Ltd (1990)
Supp SCC 727; Monsanto Technology LLC Through
the authorized representative Ms Natalia Voruz and
Others v. Nuziveedu Seeds Limited Through Director
and Others (2019) 3 SCC 381 : [2019] 1 SCR 145 and
Renaissance Hotel Holdings Inc. v. B. Vijaya Sai and
Others 2022 SCC OnLine SC 61 – referred to.
Case Law Reference
[1982] 1 SCR 187
relied on
Para 10
(1990) Supp SCC 727
referred to
Para 11
[2019] 1 SCR 145 
referred to
Para 11
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1984
of 2022.
From the Judgment and Order dated 24.12.2019 of the High Court
of 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.
Ranjit Kumar, Neeraj Kishan Kaul, Sr. Advs., N. G. Khaitan,
Debanath Ghosh, Ajay Bhargava, Ms. Vanita Bhargava, Sayan
Roychowdhary, Ayush Agarwal, Ms.
Trishala Trivedi, Ms. Vaibhavi
Pandey, Dhruv Sharma, Toshiv Goyal, Raghav Agrawal, M/s Khaitan &
Co., Advs. for the Respondent.
SHYAM SEL AND POWER LIMITED AND ANOTHER v. SHYAM
STEEL INDUSTRIES LIMITED
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The Judgment of the Court was delivered by
B. R. GAVAI, J.
1. Leave granted.
2. This appeal challenges the judgment and order passed 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
appellants-defendants were using the mark ‘SHYAM’ in their products.
The respondent-plaintiff therefore, through its advocate, objected to such
use.
It is the case of the respondent-plaintiff that the appellants-
defendants agreed to phase out the products that they had manufactured
with the mark ‘SHYAM’ and not to use the said mark ‘SHYAM’ on
their products in future.
4. It is further the case of the respondent-plaintiff that the
appellants-defendants had applied for registration of the mark ‘SHYAM
INFRA’. The respondent-plaintiff had filed its objection to it. It is further
its case that since the appellants-defendants did not file their counter-
statement, the application lapsed and was treated as abandoned.
5. It is further the case of the respondent-plaintiff that towards
the end of 2018, the appellants-defendants started to use the word
‘SHYAM METALICS’ on the packaging of their TMT bars. According
to respondent-plaintiff, though the appellants-defendants had used the
word ‘SHYAM’ on their invoices and stationeries, they had not used the
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said word ‘SHYAM’ on their wrappers in which their TMT bars were
packed. According to the respondent-plaintiff, this was done by the
appellants-defendants only to take advantage of the growing and
expanding business of the respondent-plaintiff and with an intention that
the products manufactured and sold by the appellants-defendants could
be passed off as those of the respondent-plaintiff. In this background,
the respondent-plaintiff filed a civil suit being CS No. 63 of 2019 before
the learned Single Judge of the High Court of Calcutta, claiming
infringement of their registered trade mark ‘SHYAM’ and its variants
and also for passing off by the appellants-defendants.
6. Along with the suit, an application being GA No.857 of 2019 in
CS No. 63 of 2019 for temporary injunction under Order XXXIX Rules
1 and 2 of the Code of Civil Procedure, 1908 (hereinafter referred to as
“CPC”) came to be filed. The said application basically claimed an order
of injunction restraining the appellants-defendants from infringing the
respondent-plaintiff’s trade mark ‘SHYAM’ and its variants and in
particular, trade mark registration No. 987596. The said ssapplication
sought an injunction restraining the appellants-defendants from, in any
manner, 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
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 covered by Class 6, which are sold under the mark
‘SHYAM’. The learned Single Judge also clarified that the observation
made by him in the said order was prima facie for the purpose of passing
SHYAM SEL AND POWER LIMITED AND ANOTHER v. SHYAM
STEEL INDUSTRIES LIMITED [B. R. GAVAI, J.]
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an order at the ad-interim stage and the same would not have any
relevance at the time of considering and deciding the said application
after 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 the
High Court. The Division Bench of the High Court by the impugned
judgment and order dated 24th December 2019 though, has observed
that “the order of the learned Single Judge dated 2nd April 2019 is
modified”, but in effect, has allowed the appeal and granted an injunction
restraining the appellants-defendants from, in any way, manufacturing,
selling or advertising their goods with the mark ‘SHYAM’ or with a label
or device containing the mark ‘SHYAM’ till the disposal of the suit.
Being aggrieved thereby, the present appeal.
9. This Court, while issuing notice on 16th June 2020, had stayed
the impugned judgment and order. The respondent-plaintiff had therefore
filed an application for vacating stay. However, this Court found it
appropriate to decide the main appeal itself on merits. As such, we have
heard learned Senior Counsel for the parties at length.
10. Shri Mukul Rohatgi, learned Senior Counsel appearing on behalf
of the appellants-defendants submitted that the appeal filed by the
respondent-plaintiff before the Division Bench of the High Court was
not tenable. Relying on the judgment of this Court in the case
of Shah
Babulal Khimji v. Jayaben D. Kania and Another1, learned Senior
Counsel submitted that the order passed by the learned Single Judge
dated 2nd April 2019 could not be construed to be a ‘judgment’ within the
meaning of Clause 15 of the Letters Patent of the High Court (hereinafter
referred to as “Letters Patent”) and as such, the appeal itself was not
maintainable. He submitted that vide judgment and order impugned before
the Division Bench of the High Court, the learned Single Judge had only
granted time to file the reply and had neither granted nor refused an
interim injunction. Shri Rohatgi submitted that the order of the learned
Single Judge is neither a final judgment nor a preliminary judgment 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).
1 (1981) 4 SCC 8
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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. Ltd2. 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 Others3, 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 respondent-plaintiff submitted that the Division Bench
of the High Court had rightly interfered with the order passed by the
learned Single Judge. He submitted that it is a settled principle of law
that an order of injunction would be issued wherever an infringement of
a registered trade mark is established. He relies on the recent judgment
of this Court in the case of Renaissance Hotel Holdings Inc. v. B.
Vijaya Sai and Others4
13. Insofar as the objection of the appellants-defendants with
regard to maintainability of the appeal before the Division Bench of the
High Court is concerned, Shri
Kaul would submit that the view taken by
this Court in the case of Shah Babulal Khimji (supra) would rather
support the case of the respondent-plaintiff than that of the appellants-
defendants. He submitted that since a vital and valuable right of the
respondent-plaintiff was infringed by non-grant of ad-interim order by
the learned Single Judge, the appeal was very much tenable. He submitted
that it is not in dispute that the respondent-plaintiff is the registered owner
of the trade mark ‘SHYAM’. As such, once the infringement thereof
was brought to the notice of the learned Single Judge, the learned Single
Judge ought to have granted ad-interim relief restraining the appellants-
defendants from using the said trade mark and passing off their goods
as that of the respondent-plaintiff. He therefore submitted that no
interference 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]
SHYAM SEL AND POWER LIMITED AND ANOTHER v. SHYAM
STEEL INDUSTRIES LIMITED [B. R. GAVAI, J.]
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14. Though both the parties have addressed this Court at length
on merits of the matter and have also taken us through voluminous
documents, we do not find it necessary to go into those issues. The
present appeal arises out of an order passed by the Division Bench of
the High Court in an intra-court appeal challenging the order passed by
the learned Single Judge vide which the learned Single Judge had granted
time to the appellants-defendants to file affidavit-in-opposition and
postponed the hearing of the application seeking injunction.
15. We are of the considered view that any observation on merits
by this Court would prejudice the rights of either of the parties and
therefore, we are restricting ourselves to consider the question with regard
to tenability of the appeal against the order of the learned Single Judge
and the correctness 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 ‘judgment’ as
contemplated by Clause 15 of the Letters Patent. Being aggrieved
thereby, the plaintiff had approached this Court. Justice S. Murtaza Fazal
Ali, 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, which
defines “judgment” into the letters patent:
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“‘Judgment’ means the statement given by the Judge of the
grounds 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 pointed
out that as the letters patent were drafted long before even the
Code of 1882 was passed, the word “judgment” used in the letters
patent cannot be relatable to or confined to the definition of
“judgment” as contained in the Code of Civil Procedure which
came into existence long after the letters patent were given. In
this connection, the Chief Justice observed [29 Cal LJ 225] as
follows:
“It has been held in numerous cases that as the letters patent
were drafted long before even the earlier Code of 1882 was
passed, the word ‘judgment’ used therein does not mean the
judgment as defined in the existing Code of Civil Procedure.
At the same time the word ‘judgment’ does not include every
possible order, final, preliminary or interlocutory passed by a
Judge of the High Court.”
111. We find ourselves in complete agreement with the
observations made by the Allahabad High Court on this aspect of
the matter.
112. The definition of the word “judgment” in sub-section (9) of
Section 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 adjudication
which, so far as regards the Court expressing it, conclusively
determines the rights of the parties
with regard to all or any of
the matters in controversy in the suit and may be either
preliminary or final. It shall be deemed to include the rejection
of a plaint and the determination of any question within Section
47 or Section 144, but shall not include—
(a) any adjudication from which 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
SHYAM SEL AND POWER LIMITED AND ANOTHER v. SHYAM
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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 much
wider and more liberal interpretation than the word “judgment”
used in the Code of Civil Procedure. At the same time, it cannot
be said that any order passed by a trial Judge would amount to a
judgment; otherwise there will be no end to the number of orders
which would be appealable under the letters patent. It seems to
us that the word “judgment” has undoubtedly a concept of finality
in a broader and not a narrower sense. In other words, a judgment
can be of
three kinds:
(1) A final judgment.— A judgment which decides all the
questions or issues in controversy so far as the trial Judge is
concerned and leaves nothing else to be decided. This would
mean that by virtue of the judgment, the suit or action brought
by the plaintiff is dismissed or decreed in part or in full. Such
an order passed by the trial Judge indisputably and
unquestionably is a judgment within the meaning of the letters
patent and even amounts to a decree so that an appeal would
lie from such a judgment to a Division Bench.
(2) A preliminary judgment.—This kind of a judgment may
take two forms—(a) where the trial Judge by an order
dismisses the suit without going into the merits of the suit but
only on a preliminary objection raised by the defendant or the
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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 finally
deciding the cause so far as the Trial Judge is concerned and
therefore appealable to the larger Bench. (b) Another shape
which a preliminary judgment may take is that where the trial
Judge passes an order after hearing the preliminary objections
raised by the defendant relating to maintainability of the suit,
e.g., bar of jurisdiction, res judicata, a manifest defect in the
suit, absence of notice under Section 80 and the like, and these
objections are decided by the trial Judge against the defendant,
the suit is not terminated but continues and has to be tried on
merits but the order of the trial Judge rejecting the objections
doubtless adversely affects a valuable right of the defendant
who, if his objections are valid, is entitled to get the suit dismissed
on preliminary grounds. Thus, such an order even though it
keeps the suit alive, undoubtedly decides an important aspect
of the trial which affects a vital right of the 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 rebut that evidence. As such
an order vitally affects a valuable right of the defendant it will
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undoubtedly be treated as a judgment within the meaning of
the letters patent so as to be appealable to a larger Bench.
Take the converse case in a similar suit where the trial Judge
allows the defendant to defend the suit in which case although
the plaintiff is adversely affected but the damage or prejudice
caused to him is not direct or immediate but of a minimal nature
and rather too remote because the plaintiff still possesses his
full right to show that the defence is false and succeed in the
suit. Thus, such an order passed by the trial Judge would not
amount to a judgment within the meaning of clause 15 of the
letters patent but will be purely an interlocutory order. Similarly,
suppose the trial Judge passes an order setting aside an ex
parte decree against the defendant, which is not appealable
under any of the clauses of Order 43 Rule 1 though an order
rejecting an application to set aside the decree passed ex parte
falls within Order 43 Rule 1 clause (d) and is appealable, the
serious question that arises is whether or not the order first
mentioned is a judgment within the meaning of letters patent.
The fact, however, remains that the order setting aside the ex
parte decree puts the defendant to a great advantage and
works serious injustice to the plaintiff because as a consequence
of the order, the plaintiff has now to contest the suit and is
deprived of the fruits of the decree passed in his favour. In
these circumstances, therefore, the order passed by the trial
Judge setting aside the ex parte decree vitally affects the
valuable rights of the plaintiff and hence amounts to an
interlocutory judgment and is therefore, appealable to a larger
Bench.”
114. In the course of the trial, the trial Judge may pass a number
of orders whereby some of the various steps to be taken by the
parties in prosecution of the suit may be of a routine nature while
other orders may cause some inconvenience to one party or the
other, e.g., an order refusing an adjournment, an order refusing to
summon an additional witness or documents, an order refusing to
condone delay in filing documents, after the first date of hearing
an order of costs to one of the parties for its default or an order
exercising discretion in respect of a procedural matter against
one party or the other. Such orders are purely interlocutory and
cannot constitute judgments because it will always be open to the
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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 nugatory. It is manifest that in such cases, although the
order passed by the trial Judge is purely discretionary and
interlocutory, it causes gross injustice to the defendant who is
deprived of a valuable right of defence to the suit. Such an order,
therefore, though interlocutory in nature contains the attributes
and characteristics of finality and must be treated as a judgment
within the meaning of the
letters patent. This is what was held by
this Court in Shanti Kumar case [(1974) 2 SCC 387 : AIR 1974
SC 1719 : (1975) 1 SCR 550] , as discussed above.
117. Let us take another instance of a similar order which may
not amount to a judgment. Suppose, the trial Judge allows the
plaintiff to amend the plaint by adding a particular relief or taking
an additional ground which may be inconsistent with the pleas
taken by him but is not barred by limitation and does not work
serious injustice to the defendant who would have ample
opportunity to disprove the amended plea taken by plaintiff at the
trial. In such cases, the order of the trial Judge would only be a
simple interlocutory order without containing any quality of finality
and would therefore not be a judgment within the meaning of
clause 15 of the letters patent.
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118. The various instances given by us would constitute sufficient
guidelines to determine whether or not an order passed by the
trial Judge is a judgment within the meaning of the letters patent.
We must however hasten to add that instances given by us are
illustrative and not exhaustive. We have already referred to the
various tests laid down by the Calcutta, Rangoon and Madras
High Courts. So far as the Rangoon High Court is concerned we
have already pointed out that the strict test that an order passed
by the trial Judge would be a judgment only if it amounts to a
decree under the Code of Civil Procedure, is legally erroneous
and opposed to the very tenor and spirit of the language of the
letters patent. We, therefore, do not approve of the test laid down
by the Rangoon High Court and that decision therefore has to be
confined only to the facts of that particular case because that
being a case of transfer, it is manifest that no question of any
finality was involved in the order of transfer. We would like to
adopt and approve of generally the tests laid down by Sir White,
C.J., in Tuljaram Row case [ILR 35 Mad 1] (which seems to
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.
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(2) That the interlocutory order in order to be a judgment must
contain the traits and trappings of finality either when the order
decides the questions in controversy in an ancillary proceeding
or 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 Court
itself which have been dealt with by us elaborately should be
borne in mind.”
120. Thus, these are some of the principles which might guide a
Division Bench in deciding whether an order passed by the trial
Judge amounts to a judgment within the meaning of the letters
patent. We might, however, at the risk of repetition give illustrations
of interlocutory orders which may be treated as judgments:
(1) An order granting leave to amend the plaint by introducing
a new cause of action which completely alters the nature of
the suit and takes away a vested right of limitation or any other
valuable right accrued to the defendant.
(2) An order rejecting the plaint.
(3) An order refusing leave to defend the suit in an action
under Order 37, of the Code of Civil Procedure.
(4) An order rescinding leave of the trial Judge granted by him
under clause 12 of the letters patent.
(5) An order deciding a preliminary objection to the
maintainability of the suit on the ground of limitation, absence
of notice under Section 80, bar against competency of the suit
against the defendant even though the suit
is kept alive.
(6) An order rejecting an application for a judgment on
admission under Order 12 Rule 6.
(7) An order refusing to add necessary parties in a suit under
Section 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 to
file a fresh one.
(12) An order holding that the defendants are not agriculturists
within the meaning of the special law.
(13) An order staying or refusing to stay a suit under Section
10 of the Code of Civil Procedure.
(14) An order granting or refusing to stay execution of the
decree.
(15) An order deciding payment of court fees against the
plaintiff.”
121. Here, it may 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
out, would undoubtedly be decided by the court concerned in
the light of the tests, observations and principles enunciated by
us.
123. In the instant case, as the order of the trial Judge was one
refusing appointment of a receiver and grant of an ad-interim
injunction, it is undoubtedly a judgment within the meaning of the
letters patent both because in view of our judgment. Order 43
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Rule 1 applies to internal appeals in the High Court and apart
from it such an order even on merits contains the quality of finality
and would therefore be a judgment within the meaning of clause
15 of the letters patent. The consistent view taken by the Bombay
High Court in the various cases noted above or other cases which
may not have been noticed by us regarding the strict interpretation
of clause 15 of the letters patent are hereby overruled and the
Bombay High Court is directed to decide the question in future in
the light of our decision.
124. We, therefore, hold that the order passed by the trial Judge
in the instant case being a judgment within the meaning of clause
15 of the letters patent, the appeal before the Division Bench was
maintainable and the Division Bench of the High Court was in
error in dismissing the appeal without deciding it on merits. We
have already directed the High Court to decide the appeal on
merits by our formal order dated April 22, 1981.”
17. It could thus be seen that though this Court has held that the
term ‘judgment’ used in Letters Patent could not be given a narrower
meaning as is given to the term ‘judgment’ used in CPC and that it
should receive a much wider and more liberal interpretation, however, at
the same time, each and every order passed by the trial judge could not
be construed to be a ‘judgment’ inasmuch as there will be no end to the
number of orders which would be appealable under the Letters Patent.
It has been held that the word ‘judgment’ has undoubtedly a concept of
finality in a broader and not in a narrower sense. It has been held that
where an order vitally affects a valuable right of the defendants, it will
undoubtedly be treated as a ‘judgment’ within the meaning of Letters
Patent so as to be appealable to a larger Bench.
18. It has been held that most of the interlocutory orders which
contain the quality of finality are clearly specified in clauses (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
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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 order which may amount to a judgment, it
would not be possible to give such an exhaustive list as may cover all
possible areas. This Court, in the facts of the said case, held that an
order of the Single Judge refusing appointment of a receiver and grant
of an ad-interim injunction was undoubtedly a ‘judgment’ within the
meaning of Letters Patent, both because Order XLIII Rule 1 CPC applies
to internal appeals in the High Court and that such an order even on
merits contains the quality of finality and would therefore be a ‘judgment’
within the meaning of Clause 15 of the Letters Patent. 
19. Justice A.N. Sen, while holding that the order in question was
appealable under Section 104(1) read with Order XLIII CPC, did not
find it necessary to go into the question as to whether such an order
would be appealable under Clause 15
of the Letters Patent. It will be
apposite to refer to the following observations of the learned Judge:
“151. ……In my opinion, an exhaustive or a comprehensive
definition of ‘judgment’ as contemplated in Clause 15 of the Letters
Patent cannot be properly given and it will be wise to remember
that in the Letters Patent itself, there is no definition of the word
‘judgment’. The expression has necessarily to be construed and
interpreted in each particular case. It is, however, safe to say
that if any order has the effect of finally determining any
controversy forming the subject-matter of the suit itself or any
part thereof or the same affects the question of court’s jurisdiction
or the question of limitation, such an order will normally constitute
‘judgment’ within the meaning of Clause 15 of the Letters
Patent…….”
20. Justice Sen reiterated that it was safe to say that if any order
has the effect of finally determining any controversy forming the subject-
matter of the suit itself or any part thereof or the same affects the question
of court’s jurisdiction or the question of limitation, such an order will
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normally constitute ‘judgment’ within the meaning of Clause 15 of Letters
Patent. He however observed that the expression has necessarily to be
construed 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 thread
that, as to whether an order impugned would be 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
three weeks. No doubt, that the learned Single Judge has at one place
observed that prima facie, 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, but in the same order, he has
clarified that all the observations he has made in the said order were
prima facie for the purpose of passing an order at the ad-interim stage
and the same would have no relevance at the time of considering and
deciding the said application after exchange of affidavits.
24. It could thus be seen that the order in fact was postponement
of the question as to whether the respondent-plaintiff was entitled to
grant of an ad-interim injunction or not, and that too, by merely three
weeks. The order was only giving an opportunity to the appellants-
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defendants to file their affidavit-in-opposition within a period of two
weeks. The order clarified that no prayer for extension of time shall be
entertained. The learned Single Judge therefore postponed the issue with
regard to consideration of the prayer of the respondent-plaintiff for grant
of ad-interim injunction by a period of mere three weeks and that too
only in order to afford an opportunity to the appellants-defendants to file
their 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 their
products covered by Class 6, which were sold under the mark ‘SHYAM’.
25. It is thus clear that there was no adjudication with regard to
the rights of the respondent-plaintiff to get an ad-interim injunction during
the pendency of the suit. Though by postponement of the issue with
regard to grant of ad-interim injunction, the order might have caused
some inconvenience and may be, to some extent, prejudice to the
respondent-plaintiff; the same could not be treated as a ‘judgment’
inasmuch as there was no conclusive finding as to whether the
respondent-plaintiff was entitled for grant of ad-interim injunction or not.
As such, the order passed by the learned Single Judge did not contain
the traits and trappings of finality. If it is held otherwise, this will open a
floodgate of appeals
for parties who may even 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.
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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 date
of filing of appeal is not known. The judgment and order impugned herein
was passed after a gap of about 8-9 months from the date of the order
passed by the learned Single Judge. The perusal of the judgment and
order impugned herein would clearly reveal that the counsel for the
appellants-defendants had specifically submitted that the appeal was
against an ad-interim order and therefore, the appellate court should not
interfere by substituting its views but should instead direct a speedy
hearing of the interim application of the respondent-plaintiff. The Division
Bench of the High Court after recording the said submission, observed
thus:
“Before entering into a discussion with regard to the merits of this
case I say that all the facts and papers which were necessary for
deciding the prima facie case of the parties were before us. On
these facts and evidence we were in a position to assess their
respective prima facie case and the balance of convenience.
In those circumstances we propose to dispose of the interlocutory
application ourselves instead of entering a prima facie finding and
relegating it to the court below for its disposal. That would be
unnecessary prolongation of the litigation and utter wastage of
time.”
29. It is difficult to
appreciate the anxiety on the part of the Division
Bench of the High Court to itself dispose of the interlocutory application
instead of relegating it to the court below for its disposal. When the
Division Bench of the High Court itself took 8-9 months to decide the
appeal, it is difficult to understand as to what the learned Judges of the
Division Bench of the High Court meant by “unnecessary prolongation
of the litigation and utter wastage of time”. If the learned Judges of the
Division Bench were so much concerned with the prolongation of
litigation, they could have very well requested the learned Single Judge
to decide the injunction application within a stipulated period. Instead of
waiting for a period of 8-9 months, this could have been done by them at
the very first instance when the appeal was listed. The hierarchy of the
trial court and the appellate court exists so that the trial court exercises
its discretion upon the settled principles of law. An appellate court, after
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the findings of the trial court are recorded, has an advantage of
appreciating the view taken by the trial judge and 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 view taken by the trial judge was either
perverse or impossible. At one place, the Division Bench of the High
Court observes that:
“Now, the question is whether the learned single judge
exercised his discretion correctly and whether this court
should interfere with that exercise of discretion.”
and in the same breath observes that:
“Therefore, we have considered the case on the basis of
the petition as well as the additional evidence before us.
In our opinion, this court is not called upon only to evaluate
whether the exercise of discretion by the learned trial court
was right or wrong.”
Then immediately thereafter, the Division Bench of the High Court
observes that:
“This court is duty bound to pass a suitable interim order,
pending trial of the suit.”
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32. We ask a question to ourselves that, in an appeal against the
order of a Single Judge, if the Division Bench of the High Court is not
required to evaluate the question as to whether the discretion exercised
by the trial court was right or wrong, what else is it required to do. We
are unable to trace the source of the duty of the appellate court which
makes it bound to pass a suitable interim order pending the trial of the
suit.
33. The Division Bench of the High Court further observes that
for doing so, it has to put itself in a position as if it was moved to pass an
interim order in the suit. At the cost of repetition, we reiterate that if the
approach of the Division Bench of the High Court is to be upheld, then
there would be no necessity to have the trial courts at all. Thereafter, the
Division Bench of the High Court observes that the case was different
from Wander Ltd. (supra). The Division Bench of the High Court stops
at that. It does not even take the trouble to observe as to how the scope
of the appeal before it was different from the scope as defined by this
Court in Wander Ltd. (supra). In a line thereafter, the Division Bench
of the High Court observes that prima facie case on facts theoretically
is in favour of the appellant therein (plaintiff) and thereafter, passes
various directions including the injunction. Though, in fact, it allows the
appeal in entirety by allowing an application under Order XXXIX Rules
1 and 2 CPC pendente lite
the suit, it graciously observes in the ultimate
para that it was only modifying the order dated 2nd April 2019 passed by
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:
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“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
where the discretion has been shown to have been exercised
arbitrarily, or capriciously or perversely or where the court had
ignored the settled principles of law regulating grant or refusal of
interlocutory injunctions. An appeal against exercise of discretion
is said to be an appeal on principle. Appellate court will not reassess
the material and seek to reach a conclusion different from the
one reached by the court below if the one reached by that court
was reasonably possible on the material. The appellate court would
normally not be justified in interfering with the exercise of discretion
under appeal solely on the ground that if it had considered the
matter at the trial stage it would have come to a contrary conclusion.
If the discretion has been exercised by the trial court reasonably
and in a judicial manner the fact that the appellate court would
have taken a different view may not justify interference with the
trial court’s exercise of discretion. After referring to these principles
Gajendragadkar, J. in Printers (Mysore) Private Ltd. v. Pothan
Joseph [(1960) 3 SCR 713 : AIR 1960 SC 1156] : (SCR 721)
“... These principles are well established, but
as has been
observed by Viscount Simon in Charles Osenton &
Co. v. Jhanaton [1942 AC 130] ‘...the law as to the reversal
by a court of appeal of an order made by a judge below in the
exercise of his discretion is well established, and any difficulty
that arises is due only to the application of well settled principles
in 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 High
Court have on more than one occasion referred to the judgment of this
Court in Wander Ltd. (supra), they have not even, for namesake,
observed as to how the discretion exercised by the learned Single Judge
was exercised arbitrarily, capriciously or perversely. In our view, having
waited for 8-9 months after the learned Single Judge had passed the
order, all that ought to have been done by the learned Judges of the
Division Bench of the High Court was to request the learned Single
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Judge to decide the application for ad-interim injunction, which in fact,
the learned Single Judge had scheduled to do after three weeks from 2nd
April 2019. In our view, it was not even necessary for the Division Bench
of the High 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 to these in the impugned judgment
and order of
the Division Bench of the High Court. In our view, the
approach of the Division Bench of the High Court was totally unwarranted
and uncalled for. We refrain ourselves from using any stronger words.
37. We find that it is high time that this Court should take note of
frivolous appeals being filed against unappealable orders wasting precious
judicial time. As it is, the courts in India are already over-burdened with
huge pendency. Such unwarranted proceedings at the behest of the parties
who can afford to bear the expenses of such litigations, must be
discouraged. We therefore find that the present appeal deserves to be
allowed with token costs. The respondent-plaintiff shall pay a token cost
of Rs.5 lakhs to the Supreme Court Middle Income Group Legal Aid
Society (MIG).
38. In the result, the appeal is allowed. The impugned judgment
and order dated 24th December 2019 is quashed and set aside. The
learned Single Judge is requested to decide the application filed by the
respondent-plaintiff under Order XXXIX Rules 1 and 2 CPC as
expeditiously as possible and in any case, within a period of six weeks
from the date of this judgment. Till further orders are passed by the
SHYAM SEL AND POWER LIMITED AND ANOTHER v. SHYAM
STEEL INDUSTRIES LIMITED [B. R. GAVAI, J.]
A
B
C
D
E
F
G
H
1200
SUPREME COURT REPORTS
[2022] 3 S.C.R.
learned Single Judge, the order passed by the learned Single Judge dated
2nd April 2019 would continue to operate.
39. We clarify that we have not touched upon the merits of the
matter and none of the observations either by the learned Single Judge
or the Division Bench of the High Court or by us, would in any manner
weigh with the learned Single Judge while deciding the application for
injunction filed by the respondent-plaintiff.
40. Pending application(s), if any, shall stand disposed of in the
above terms.
Bibhuti Bhushan Bose
Appeal allowed.
(Assisted by : Shubhanshu Das, LCRA)