In IP litigation in India, the stage of interim injunction is
often a stage of intense fighting. An interim injunction is what a
plaintiff wrestles for while the defendant makes every effort to
counter this. What happens when there is an ex-parte ad-interim
The Division Bench in the case (TENXC Wireless Inc vs.
ANDREW LLC FAO No 697/2010; Delhi High Court), while disposing
an appeal contesting the suspension of the ex-parte ad-interim
injunction favouring TenXc, set aside the suspension and gave
directions that the single judge may decide Andrew's
application under Order XXXIX Rule 4 of the Civil Procedure Code,
1908 (CPC), to vacate the ex-parte ad-interim injunction, afresh
after giving an opportunity to hear the patent holder.
TenXc had preferred a suit for permanent injunction, delivery
up, rendition of account of profit and damages against infringement
of its registered Indian patent against Andrew LLP & others.
The single judge granted an ex-parte ad-interim injunction. Andrew
preferred a Letters Patent Appeal, which remanded the case back for
compliance of provision under Order XXXIX of the CPC.
Consequentially an application under Order XXXIX Rule 4 of the CPC
was moved by Andrew, which was disposed of by vacating the ex-parte
Rule 4 of Order XXXIX of the CPC empowers court to vacate an
order of injunction if the party has made a false or misleading
statement in relation to a material particular and the injunction
was granted without giving notice to the opposite party.
TenXc appealed against the suspension of the ex-parte ad-interim
injunction order on its grievance that the single judge incorrectly
viewed the filing of patent specification downloaded from the
official website of Indian Patent office, instead of certified
copies as a deliberate act to present filtered and selective
information, suppress material particulars, misstate facts and gain
undue benefit, even though the Patent certificate was issued
The division bench was of the view that Andrew's application
under Order XXXIX Rule 4 of the CPC levels very serious allegations
against TenXc and in absence of a written response from TenXc the
Court is unable to appreciate the contentions of the parties and
also the findings of the single judge and the records of the
proceedings are reticent on the point that fervent requests were
made by TenXc to file a reply and the single judge ignored the
same. Since the pervading perception of the single judge was that
TenXc had knowingly made false or misleading statements in relation
to material particulars, it should have been afforded an
opportunity to controvert the Andrew's statements. The court
factored in these views to set aside the order of the single judge
suspending the ex-parte ad-interim injunction order and also
observed that the interest of justice may be undermined if an
opportunity to controvert or respond to vital facts is not
An ex-parte injunction granted in a summary proceeding without
the alleged infringer being heard, although works on the legal
basis that the object of granting injunction should not be defeated
by delay, but it may not hold much water in cases of patent
infringement. In any claim alleging patent infringement, the
requirements of urgency and legal foundation of the case has to be
prima facie plausible with the condition that patent is both valid
and infringed, where both validity and infringement issues require
thorough examination and technical expertise.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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