Shyam Sel And Power Limited vs Shyam Steel Industries Limited on 14 March, 2022


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Supreme Court of India

Shyam Sel And Power Limited vs Shyam Steel Industries Limited on 14 March, 2022

Author: B.R. Gavai

Bench: L. Nageswara Rao, B.R. Gavai

                                               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)


                       JUDGMENT

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 2nd 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 2nd 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 Another1, 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. 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 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 Others4

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.

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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.

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

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 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 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

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 24th 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.

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