1. Defect waived. Both the petitions involve a common question of maintainability of writ petitions having been filed by the petitioners defendants (hereinafter ''the defendants'') against the order dt. 28.10.2008 passed by the Addl. District Judge No. 4, New Delhi (hereinafter ''the trial court'') on an application under Order 39 Rules 1 & 2 CPC at the instance of the respondent plaintiff No. 3 (hereinafter ''the plaintiff). Consequently they are being decided by a common order. The facts of SBCW P. No. 12962/2014 are being taken as the lead case.
2. This petition has been filed by the defendants against the order dt. 28.10.2014 passed by the trial Court whereby it on an application under Order 39 Rules 1 & 2 CPC filed in a suit for passing off laid by the plaintiff passed the impugned ex-parte ad-interim order. Thereby the trial Court restrained the defendants its employees, associates, agents, distributors, stockists, franchisees and representative and others from manufacturing, marketing using, selling, soliciting, displaying, exporting or by any other mode or means any identical deceptively and confusingly similar trade mark/trade dress SSTXON10000 and 2 KA POWER with respect to steel bar (saria) and other allied/cognate goods manufactured or marketed by the plaintiff company, till further order effective the visit of the Local Commissioner to the premises of the defendants. The trial Court also directed on an application made under Order 26 Rule 9 CPC by the plaintiff seizure of infringing articles. Other ex-parte incidental directions were also issued by the trial Court. The Commissioner was also directed to sign the account books including ledgers, cash register, stock register, invoices, books etc. of the defendants and prepare an inventory of all such goods/material seized by him where-after the said goods/material were handed over to the defendants on superdari after taking photographs of the seized material.
3. Mr. U.N. Bhandari-Sr. Counsel appearing with Mr. Sameer Jain for the defendants has submitted that the impugned order is wholly without jurisdiction, a gross misuse of the judicial process, violative of the principles of natural justice infringing on the fundamental rights of the defendants'' company to carry on its trade/business and therefore liable to be set aside. It has been submitted that in terms of Article 226(2) of the Constitution of India the defendant company, doing business within the jurisdiction of this Court has been injured by the impugned order and hence cause of action within the jurisdiction of this Court has arisen. Therefore, this writ petition ought to be entertained, notices issued to the plaintiff and an interim order passed in favour of the defendants to protect them from the invidious effects of the impugned order. It has been submitted that the provision of an appeal under Order 43 Rule 1 CPC against the order dt. 28.10.2014 passed under Order 39 Rules 1 & 2 CPC is of no obstruction to the exercise of the extra ordinary equitable jurisdiction of this Court, which ought to be exercised in view of the fact that consequent to the ex-parte ad-interim order dt. 28.10.2014 the defendants'' factory employing over 100 persons has been effectively rendered nonfunctional. This is working gross injustice upon the defendants and hundreds of employees.
4. Reliance has been placed on several judgments of the Hon''ble Apex Court delineating the expansive powers of the writ Courts in intervening in situation of gross injustice and misuse the jurisdiction particularly when occasioning unwarranted and unconscionable injury. It has been submitted that the facts of the present petition would require the defendants'' protection against the ex-parte ad-interim order dt. 28.10.2014 at the hand of this Court in the exercise of its extra-ordinary equitable jurisdiction.
5. Heard the counsel for the defendants and perused the impugned order. Considered.
6. In my considered view the writ petition is liable to fail on account of availability of alternative remedy. Admittedly an order, even an ex-parte interim one, under Order 39 Rules 1 & 2 CPC, as under challenge in this writ petition, is appealable by way of a civil misc. appeal under order 43 Rule 1 CPC or can be put to reconsideration on an application under Order 39 Rule 4 CPC.
7. I also find myself unable to agree with the argument of the Sr. Counsel appearing for the defendants that the impugned order dt. 28.10.2014 is without jurisdiction and therefore this Court interfere therewith. Section 134(2) of the Trade Mark Act, 1999 (hereinafter ''the Act of 1999'') provides that a suit for the infringement of a registered trade mark or relating to any right therein or for passing off arising out of the use by the defendant of any trade mark which is identical with or deceptively similar to plaintiff''s trade mark, whether registered or not, shall be instituted in a District Court within the local jurisdiction of whose jurisdiction, at the time of the institution of the suit or other proceeding, the person instituting the suit or proceeding actually and voluntarily resides or carries on business or personally works for gain. A copy of the suit laid by the plaintiff has not been filed before this Court to enable it to evaluate as to what the averments of the plaintiff were with regard to the cause of action and for invoking of the jurisdiction of the Court at Delhi. From the impugned order it however prima-facie appears that the plaintiff carries on business across the Country including Delhi entailing conferment of jurisdiction in a Delhi Court to entertain a suit of infringement and/or passing off at Delhi under Sec. 134 of the Act of 1999. So it appears, from the impugned order in the connected writ that the plaintiff asserted cause of action at Delhi also in his suit under the Designs Act, 2000. That assertion cannot be peremptorily side-stepped in this writ petition, if at all, to the circumvention of the alternative remedy of a civil misc. appeal.
8. In the circumstances, I am of the considered view that the defendants have not been able to make out a prima facie case of the Civil Court at Delhi lacking jurisdiction and rank misuse of the judicial process. Aside of the aforesaid it is incomprehensible as to why the jurisdiction of the Hon''ble Delhi High Court has not been invoked by the defendants, if at all a subordinate Court within its jurisdiction had acted as alleged, without authority of law. In the over-all facts of the case, I would therefore, dismiss both the petitions on the ground of availability of alternative remedy without anything more. The defendants shall be free to avail their remedy against the order''s dt. 28.10.2014 passed by the trial Court before an appropriate Forum in accordance with law. It is made clear that the dismissal of both the petitions would not reflect on the lack of merits or otherwise of the defendants'' case in appropriate proceedings. No observation of this Court in this order shall operate to the petitioners defendants'' prejudice.
The writ petitions stand accordingly dismissed.
