SHYAM SEL AND POWER LIMITED AND versus SHYAM STEEL INDUSTRIES LIMITED

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 ‘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 such an order to be a ‘judgment’, an adverse effect on the party concerned must be direct SHYAM SEL AND POWER LIMITED AND ANOTHER v. SHYAM STEEL INDUSTRIES LIMITED [B. R. GAVAI, J.] 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 ad-interim injunction was undoubtedly a ‘judgment’ within the meaning of Letters Patent, both because Order XLIII Rule 1 CPC applies to internal 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 subject-matter 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…….”

20. Justice Sen reiterated that it was safe to say that if any order has the effect of finally determining any controversy forming the subject- matter 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 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 appellants-defendants to file affidavit- in-opposition and postpone the issue of grant of ad-interim 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 appellants-defendants, no injunction should be passed to restrain the appellants-defendants from 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 ad-interim 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 ad-interim injunction or not, and that too, by merely three weeks. The order was only giving an opportunity to the appellants- SHYAM SEL AND POWER LIMITED AND ANOTHER v. SHYAM STEEL INDUSTRIES LIMITED [B. R. GAVAI, J.] defendants to file their affidavit-in-opposition 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 respondent-plaintiff for grant of ad-interim injunction by a period of mere three weeks and that too only in order to afford an opportunity to the appellants-defendants to file their affidavit-in-opposition. While doing the same, the respondent- plaintiff’s interest was also protected, inasmuch as the appellants- defendants 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 respondent-plaintiff to get an ad-interim injunction during the pendency of the suit. Though by postponement of the issue with regard to grant of ad-interim 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 respondent-plaintiff was entitled for grant of ad-interim 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 grant of time to the other side to file affidavit-in-reply. We are therefore of the considered view that the order dated 2nd 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 well-settled 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 2nd April 2019. It appears that the appeal to the Division Bench of the 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 8-9 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 appellants-defendants had specifically submitted that the appeal was against an ad-interim 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 respondent-plaintiff. 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 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 8-9 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 8-9 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 exercises its discretion upon the settled principles of law. An appellate court, after SHYAM SEL AND POWER LIMITED AND ANOTHER v. SHYAM STEEL INDUSTRIES LIMITED [B. R. GAVAI, J.] 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 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.” 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 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 2nd 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 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: SHYAM SEL AND POWER LIMITED AND ANOTHER v. SHYAM STEEL INDUSTRIES LIMITED [B. R. GAVAI, J.] “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 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, capriciously or perversely. In our view, having waited for 8-9 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 ad-interim 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 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 respondent-plaintiff has made out a prima facie case, there is no discussion as to how a prima facie case was made out by the respondent-plaintiff. 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 over-burdened with huge pendency. Such unwarranted proceedings at the behest of the parties who can 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 respondent-plaintiff 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 respondent-plaintiff 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 SHYAM SEL AND POWER LIMITED AND ANOTHER v. SHYAM STEEL INDUSTRIES LIMITED [B. R. GAVAI, J.] learned Single Judge, the order passed by the learned Single Judge dated 2nd 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 deciding the application for injunction filed by the respondent-plaintiff.

40. Pending application(s), if any, shall stand disposed of in the above terms. Bibhuti Bhushan Bose Appeal allowed. (Assisted by : Shubhanshu Das, LCRA)