Harish Tandon, J. - (1.) The power to grant relief in the form of an injunction in a suit for infringement of a trade mark or passing off is provided under Sec. 135(1) of the Trade Marks Act, 1999. Sub Sec. 2 of the said Sec. further provides an ex -parte injunction or an interlocutory order relating to discovery of documents, preservation of infringing goods, documents or other evidence related to the subject matter of the suit and restraining the defendant from passing off or dealing with his assets in any manner which may diversely affect plaintiff's ability to recover damages, costs or other pecuniary remedies, which may be finally awarded in the suit.
(2.) Admittedly, an ex -parte ad interim order of injunction restraining the defendants there associates and agents from manufacturing, selling, stocking, making availability or offering to sale pipes of metal and pipes not of metal under the mark "BANSAL" or any other trade mark identical or deceptively similar to the plaintiff's trade mark was passed on 13th January, 2016. The said order is for limited duration till 10th February, 2016 and a direction was made for service upon the defendant. After notice the defendants have appeared and prayed for filing the affidavit -in -opposition to the injunction application.
(3.) Mr. Bachawat, the learned Senior Advocate, though did not stand in the way of permitting the defendants to file affidavit -in -opposition but presses the application for injunction for further order, more particularly in terms of prayer (d) of notice of motion. The said prayer is reproduced as under - "(d) A Receiver/Commissioner be appointed for inspecting the premises of the opposite parties situated at G.T. Road, Neamatpur, P.O. - Sitarampur, District: Burdwan, Pin Code - 713359 West Bengal and enter into the said premises for taking into custody all the infringing goods, packaging materials, publicity materials, labels bearing the aforesaid trademarks and he be conferred with all the powers under Order 40 Rule 1 read with order 39 Rule 7 of the Code of Civil Procedure including power to search the aforesaid premises and seize the aforesaid materials." It is to be reminded that ordinarily the defendants have threefold remedies against the ex -parte order of injunction. Firstly, he can answer the show -cause by filing affidavit -in -opposition to the injunction application; Secondly, he can apply for varying, modifying and/or setting aside the ex -parte injunction under Order 39 Rule 4 of the Code of Civil Procedure; and Thirdly, he can assail the said ex -parte order of injunction before the Appellate Court under Order 43 Rule 1(r) of the Code. Equally, this Court does not find any fetter either in the Code of Civil Procedure or the rules regulating the procedure in the Original Side of the High Court to oppose the prayer of injunction either at the rime of extending the ex -parte ad interim order of injunction or further injunction if asked for by the plaintiff.;