(Judgment of the Court was delivered by M.CHOCKALINGAM, J.,) This appeal challenges a common order of a learned single Judge of this Court dated 02.07.2009 in O.A.No.546 of 2008 and Application No.2295 of 2009 in C.S.No.485 of 2008, whereby O.A.No.546 of 2008 filed by the plaintiff was closed.
2. The appellant/plaintiff filed the suit, seeking for the relief of a permanent injunction restraining respondents 1 and 2/defendants 1 and 2 and their men from infringing the Surface Transport Copyrights of the plaintiff in respect of the suit schedule films VCD, DVD formats either by dealing with the said rights or exploiting the same in any other manner and for costs.
3. At the time of filing the suit, the appellant/ plaintiff filed two applications, namely, O.A.No.546 of 2008 for interim injunction and A.No.2295 of 2009 for an appointment of an Advocate Commissioner to seize all the VCDs and DVDs pertaining to the films in question, which are shown in the Schedule to the Judge's summons. The learned single Judge, after hearing both sides, appointed an Advocate Commissioner as prayed for by the appellant/plaintiff, but closed the application for interim injunction, by order dated 02.07.2009. Aggrieved over the same, the plaintiff has filed the present appeal.
4. Advancing the arguments on behalf of the appellant/ plaintiff, the learned counsel would submit that the appellant filed two applications, one for interim injunction and another for appointment of an Advocate Commissioner; that by order dated 30.04.2008, an ex parte injunction was granted while ordering notice to the respondents; that the learned single Judge, after hearing both sides, closed the application for interim injunction on the ground that (i) Order 39 Rule 3 C.P.C. has not been complied with even though affidavit of service has been filed, and (ii) no application for extension of interim order has been filed after expiry of a period of six weeks. Added further the learned counsel that in so far as the second prayer, namely, appointment of an Advocate Commissioner is concerned, the Court has appointed an Advocate Commissioner for the relief sought for by the appellant, in respect of which, the defendants/respondents have not preferred any appeal; that having obtained an ex-parte order of injunction and having immediately served valid notices on all the respondents, it was for the respondents to file an application for vacating the order of injunction, if so desired; that it is pertinent to point out that despite the service on the respondents, none of the respondents entered appearance; that the learned Judge ought to have made the order of injunction absolute instead of closing the same; that an opportunity has to be given to the appellant to put forth their case before closing the application and under such circumstances, the order has got to be set aside.
5. Heard the learned senior counsel appearing for the 2nd respondent, who made his sincere attempt of sustaining the order of the learned single Judge.
6. The court has paid anxious consideration on the submissions made by the learned counsel on either side.
7. It is not in controversy that by the common order, the learned single Judge has closed the application for interim injunction and in respect of other application for appointment of Advocate Commissioner, he did so. In so far as the interim injunction is concerned, it was made in a suit where the plaintiff prayed for the relief of permanent injunction and in that line, the interim injunction is also sought for. As could be seen from the available materials, the application for interim injunction was filed on 25.04.2008 and ad-interim injunction was granted on 30.04.2008 for a period of six weeks. It is an admitted position that no extension was sought for either orally or by way of filing an application and hence, it was not extended. But at the time when the matter was taken up for enquiry, it was observed that the order of interim injunction was not extended and hence there was no purpose in keeping the application pending. Now, it is also pointed out that in a case, where Order 39 Rule 3 C.P.C.has to be complied with, an affidavit, what was to be filed, has not been filed. Learned senior counsel for the 2nd respondent vehemently contended that such an affidavit has not been filed and under such circumstances, it is needless to say that under Order 39 Rule 3 C.P.C., filing an affidavit of service following the order made by the Court is mandatory. However, the Court has to look into the circumstances of the case. Now, in the instant case, it is an admitted position that such an affidavit of service, following the order of injunction has not been filed by the appellant/plaintiff. If the Court thought it fit and apart from that, it was a case, where ad-interim injunction has not been extended and the circumstances did not warrant for putting an end to the application itself, it is admittedly the respondents, who have not even filed the counter in that application and while the injunction has been sought for in an application like this, an opportunity should be given to file counter and even before that, the application has been closed, which, in our considered opinion, is erroneous.
8. Hence, the order passed by the learned single Judge in O.A.No.546 of 2008 is set aside and the matter is remitted to the trial Judge for fresh disposal after giving an opportunity to the respondents to file their counter. Now, the learned senior counsel for the 2nd respondent would undertake to file counter in two weeks herefrom and the learned single Judge is required to dispose of the application for injunction on merits and in accordance with law, within a period of three weeks therefrom.
With the above observation, the appeal is disposed of. Consequently, connected M.P.is closed. The parties shall bear their own costs.
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