Right to be heard a fundamental requirement; cannot be defeated except on default of opposite party: Kerala High Court

The Kerala High Court recently held that the right to be heard in litigation cannot be defeated ecept due to some default by the opposite party. [GM Sheikh & Ors. v M/s Raja Biri Private Ltd & Ors.].Justice P Somarajan observed that “audi alteram partem”, i.e., the right to be heard, is a fundamental guiding principle in the judicial system."The “right to be heard” in the legal parlance especially in litigation is the most valuable right, which cannot be defeated in any manner except on the default of the opposite party. The principle behind the maxim “audi alteram partem” is well recognised and adopted in the judicial system as one of the fundamental guiding principles", the Court said in its judgment..The Court held that orders passed before giving notice to the opposite party would fall under the category of ex-parte order but the legal consequences on the same are quite different from an ex-parte order passed after notice to the opposite party.The single-judge held that in the latter case, the order will be binding on the opposite party unless the absence is with a legal excuse.“If the absence is without any lawful excuse, the ex parte order or decree would stand binding on the opposite party. In the latter case, every order passed after affording opportunity of being heard would stand binding on the opposite party,” the judgment stated.In the former case, it won’t be binding on the parties since it is deprived of the right to be heard."But in the former case, it may not have any such binding force force on the opposite party, since it is deprived of “audi alteram partem” - the right to be heard, which is the fundamental requirement in the legal parlance to make it binding on the parties," the Court said.The judge summarised that the binding force rests on the right to be heard and not on the jurisdiction vested in any court in the matter of issuance of an ad-interim order in the absence of a notice to the opposite party who will stand prejudiced by the order."In short, what actually governs a “binding force” or “binding nature” is really resting on the “right to be heard” and not on the authority or jurisdiction vested with any court in the matter of issuance of any ad interim order or precautionary measure, without notice to the opposite party or to the person who will stand prejudiced by the order affecting his interest", the judgment stated.The court further stated that an order passed without issuing notice to the opposite party cannot be brought under the purview of Section 36 CPC. and it cannot be executed through court until the same is merged in a subsequent order after notice to the opposite party..The dispute between the parties in the instant was about the alleged infringement of trademarks and the names of Raja Biri and Raja Bidi.The court was considering an appeal filed against an ex-parte ad interim injunction granted to the appellants before the issuance of a notice, thereby restraining them from doing their business.The appellants appeared and filed their counter but the matter was not heard on merit within the time schedule of 30 days. Hence the appellants filed an application for an early hearing under Order 39 Rule 3 A (Court to dispose of application for injunction within 30 days) of the Code of Civil Procedure (CPC).However, in spite of the application, the matter was not heard on merit.The trial court in the meanwhile implemented the ex-parte interim injunction granted to the appellants and thereby, appointed a Commission to collect the materials belonging to the defendants supplied to various shops and afforded police protection to the Commissioner.The Commissioner with police protection collected all the materials that belonged to the appellants which were supplied to various shops..The respondents before the High Court contended that the trial court is well within the jurisdiction of granting even an ex-parte ad-interim injunction without notice to the appellants by virtue of Section 135 of the Trade Marks Act, 1999.The Court, however, did not concur with this argument.It found that the trial court had violated Section 135 of the Trade Marks Act and Order 39 Rule 3A CPC by implementing the ex-parte ad interim injunctiom passed before issuance of notice to the party by appointing a Commissioner and by giving police protection without hearing the appellants, though they filed a counter.The court said that in a matter of alleged infringement of or passing off trademark or tradename, the court should be more cautious and vigilant while passing ex parte interim orders."An ad interim injunction shall not be granted in derogation of the right of opposite party. The exercise of jurisdiction to issue an ex parte ad interim order before notice to the opposite party must reflect the proper consideration of all the abovesaid aspects", the judgment stated.Therefore, the court granted the transfer of the case to Principal District and Session Court as requested by the appellants. .The petitioners were represented by advocates VG Arun, V Jaya Ragi, R Harikrishnan and Neeraj Narayan. The respondents were represented by advocates G Sreekumar..[Read Judgment]