- The Kerela High court dominated that if an order is passed without issuing a notice to the opposition, Section 36 CPC will not be brought into purview.
- It will be executed in the court only when it is merged with the opposite party’s subsequent order.
- If a notice is not issued it cannot be binding on the other party because it deprives them of a fundamental right "audio alteram partem" (right to be heard).
- Only when it is with respect to administrative matter when there is no occasion for causing prejudice to the opposite party, and in the exercise of legislative authority, can this fundamental right be overlooked.
- The court was dealing with a case of trademark infringement of Raja Biri and Raja Bidi.
- An interim ex parte injunction was granted forbidding them to do their business.
- However, the time schedule of 30 days was exceeded, and the case was not heard.
- After the materials of the defendant collected by the commission were submitted, the court passed the interim ex parte order without issuing a notice to the defendants.
- The Court highlighted that an order of ad interim injunction granted under Rule 3 without giving notice of the application to the opposition would also be an "ex parte" order, though normally, the said expression is used to refer orders or decree passed in the absence of an opposite party.
- A state of - no notice and no chance of hearing, falls under the ambit of Order XXXIX Rule 3 A CPC whether its interim or injunction.
- And hence the order would not stand binding upon the party.
- A notice to the opposite party is imperative to pass the ad interim injunction order and make it binding.
- The appeal was disposed and the transfer request of shifting the case to the Principal District and Sessions Court was allowed.
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