The appeal arises from a trademark infringement and passing off suit filed by the respondent against the appellants for unauthorized use of the 'SHYAM' trademark in TMT bars. It involves ...
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REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 1984 OF 2022
[Arising out of SLP(C) No. 4080 of 2022]
SHYAM SEL AND POWER LIMITED
AND ANOTHER ...APPELLANT(S)
VERSUS
SHYAM STEEL INDUSTRIES LIMITED ...RESPONDENT(S)
J U D G M E N T
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 24
th
December 2019, arising out of the order passed by the learned
1
Single Judge of the High Court dated 2
nd
April 2019, by which
the learned Single Judge had granted time to the appellants
defendants to file affidavitinopposition and directed to post
the matter after three weeks. By the said order, the learned
Single Judge also directed the appellantsdefendants 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 respondentplaintiff had filed a suit against the appellants
defendants for infringement of trade mark and passing off. It is
the case of the respondentplaintiff that it has trade mark
registration in respect of the word ‘SHYAM’ and diverse label
marks wherein the word ‘SHYAM’ features prominently. Both
the respondentplaintiff and the appellantsdefendants
manufacture and sell, inter alia, ThermoMechanically treated
bars (hereinafter referred to as “TMT bars”). It is the case of the
respondentplaintiff that in the year 2015, it came to know that
the appellantsdefendants were using the mark ‘SHYAM’ in
2
their products. The respondentplaintiff therefore, through its
advocate, objected to such use. It is the case of the
respondentplaintiff that the appellantsdefendants 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 respondentplaintiff that the
appellantsdefendants had applied for registration of the mark
‘SHYAM INFRA’. The respondentplaintiff had filed its objection
to it. It is further its case that since the appellantsdefendants
did not file their counterstatement, the application lapsed and
was treated as abandoned.
5.It is further the case of the respondentplaintiff that
towards the end of 2018, the appellantsdefendants started to
use the word ‘SHYAM METALICS’ on the packaging of their
TMT bars. According to respondentplaintiff, though the
appellantsdefendants had used the word ‘SHYAM’ on their
invoices and stationeries, they had not used the said word
3
‘SHYAM’ on their wrappers in which their TMT bars were
packed. According to the respondentplaintiff, this was done by
the appellantsdefendants only to take advantage of the growing
and expanding business of the respondentplaintiff and with an
intention that the products manufactured and sold by the
appellantsdefendants could be passed off as those of the
respondentplaintiff. 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 appellantsdefendants.
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 appellantsdefendants from infringing the respondent
plaintiff’s trade mark ‘SHYAM’ and its variants and in
4
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 respondentplaintiff’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 adinterim injunction
before the learned Single Judge on 2
nd
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
appellantsdefendants, no injunction should be passed to
restrain the appellantsdefendants from using the said word
‘SHYAM’ on their packaging. The learned Single Judge deemed
it appropriate to grant time to the appellantsdefendants to file
affidavitinopposition, which was directed to be filed within two
weeks from the date of the said order. It was also clarified that
5
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 appellantsdefendants 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 an order at the adinterim 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 respondentplaintiff 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 24
th
December 2019 though, has observed that “the order of the
learned Single Judge dated 2
nd
April 2019 is modified”, but in
effect, has allowed the appeal and granted an injunction
6
restraining the appellantsdefendants 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 16
th
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 appellantsdefendants submitted that the appeal
filed by the respondentplaintiff 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 Another
1
, learned Senior Counsel submitted that
1 (1981) 4 SCC 8
7
the order passed by the learned Single Judge dated 2
nd
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).
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
8
learned Senior Counsel relies on the judgment of this Court in
the case of Wander Ltd. and Another v. Antox India P. Ltd
2
.
Shri Rohatgi further submitted that the Division Bench of the
High Court has in fact usurped the jurisdiction of the learned
Single Judge to decide an application under Order XXXIX Rules
1 and 2 CPC. Relying on the judgment of this Court in the case
of Monsanto Technology LLC Through the authorized
representative Ms Natalia Voruz and Others v. Nuziveedu
Seeds Limited Through Director and Others
3
, 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 respondentplaintiff 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
2 1990 Supp SCC 727
3 (2019) 3 SCC 381
9
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 Others
4
13.Insofar as the objection of the appellantsdefendants 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
respondentplaintiff than that of the appellantsdefendants. He
submitted that since a vital and valuable right of the
respondentplaintiff was infringed by nongrant of adinterim
order by the learned Single Judge, the appeal was very much
tenable. He submitted that it is not in dispute that the
respondentplaintiff 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 adinterim relief restraining the
4 2022 SCC OnLine SC 61 [Civil Appeal No.404 of 2022 dated 19.01.2022]
10
appellantsdefendants from using the said trade mark and
passing off their goods as that of the respondentplaintiff. He
therefore submitted that no interference is warranted in the
present appeal.
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 intracourt
appeal challenging the order passed by the learned Single
Judge vide which the learned Single Judge had granted time to
the appellantsdefendants to file affidavitinopposition 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
11
order of the learned Single Judge and the correctness of the
approach of the Division Bench of the High Court.
16.An intracourt 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 threeJudge 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 suitproperty and injuncting the
defendant from disposing of the suitproperty 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
12
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:
“‘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
13
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
subsection (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—
14
(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
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
subsection (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
15
“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 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
16
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
17
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 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
18
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 aggrieved party
to make a grievance of the order passed against the
19
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.
20
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.
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
21
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.
22
(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.
23
(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.
(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.”
24
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 wellnigh 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 straitjacket. 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 adinterim injunction, it is
undoubtedly a judgment within the meaning of the
letters patent both because in view of our judgment.
25
Order 43 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
26
‘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
27
such an order to be a ‘judgment’, an adverse effect on the party
concerned must be direct and immediate rather than indirect or
remote. Various illustrations of interlocutory orders have been
given by this Court in para (120), which could be held to be
appealable. This Court held that though any discretion
exercised or routine orders passed by the trial Judge in the
course of the suit may cause some inconvenience or, to some
extent, prejudice to one party or the other, they cannot be
treated as a ‘judgment’ unless they contain the traits and
trappings of finality. This Court has expressed in para (122)
that though it had, by way of sample, laid down various
illustrative examples of an 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 adinterim injunction
was undoubtedly a ‘judgment’ within the meaning of Letters
Patent, both because Order XLIII Rule 1 CPC applies to internal
28
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 subjectmatter 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…….”
29
20.Justice Sen reiterated that it was safe to say that if any
order has the effect of finally determining any controversy
forming the subjectmatter 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 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
30
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
2
nd
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 appellantsdefendants to
file affidavitinopposition and postpone the issue of grant of
adinterim 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 appellantsdefendants, no injunction
should be passed to restrain the appellantsdefendants from
31
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 adinterim 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 adinterim injunction or not,
and that too, by merely three weeks. The order was only giving
an opportunity to the appellantsdefendants to file their
affidavitinopposition 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
respondentplaintiff for grant of adinterim injunction by a
period of mere three weeks and that too only in order to afford
an opportunity to the appellantsdefendants to file their
32
affidavitinopposition. While doing the same, the respondent
plaintiff’s interest was also protected, inasmuch as the
appellantsdefendants 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 respondentplaintiff to get an adinterim
injunction during the pendency of the suit. Though by
postponement of the issue with regard to grant of adinterim
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
respondentplaintiff was entitled for grant of adinterim
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
33
grant of time to the other side to file affidavitinreply. We are
therefore of the considered view that the order dated 2
nd
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 wellsettled principles of law, we
are required to consider the correctness of various findings and
observations of the Division Bench of the High Court in the
impugned judgment and order.
28.The learned Single Judge passed an order on 2
nd
April
2019. It appears that the appeal to the Division Bench of the
34
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 89 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 appellantsdefendants had specifically submitted that the
appeal was against an adinterim 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 respondentplaintiff. 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
35
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 89 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 89
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
36
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. 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
37
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.”
38
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.”
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
39
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 2
nd
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
40
the correctness of the discretion and jurisdiction exercised by
the trial courts for grant or refusal of interlocutory injunctions.
In the said case, the learned Single Judge had refused an order
of temporary injunction in favour of the plaintiff who was
claiming to be a registered proprietor of the registered trade
mark. The Division Bench of the High Court had reversed the
order passed by the learned Single Judge and granted interim
injunction. Reversing the order of the Division Bench of the
High Court and maintaining the order of the learned Single
Judge, this Court observed thus:
“14. The appeals before the Division Bench were
against the exercise of discretion by the Single
Judge. In such appeals, the appellate court will not
interfere with the exercise of discretion of the court
of first instance and substitute its own discretion
except 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
41
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,
42
capriciously or perversely. In our view, having waited for 89
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 Judge to decide the application for adinterim 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 Bench of the High Court to have
waited till 24
th
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
43
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
respondentplaintiff has made out a prima facie case, there is
no discussion as to how a prima facie case was made out by the
respondentplaintiff. 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 overburdened with huge pendency. Such
unwarranted proceedings at the behest of the parties who can
44
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 respondentplaintiff 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 24
th
December 2019 is quashed and
set aside. The learned Single Judge is requested to decide the
application filed by the respondentplaintiff 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 learned Single
Judge, the order passed by the learned Single Judge dated 2
nd
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
45
deciding the application for injunction filed by the respondent
plaintiff.
40.Pending application(s), if any, shall stand disposed of in
the above terms.
….……..….......................J.
[L. NAGESWARA RAO]
………….........................J.
[B.R. GAVAI]
NEW DELHI;
MARCH 14, 2022.
46
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