Ex-parte injunctions are the sharpest instrument in commercial litigation: relief granted before the defendant is heard, sometimes accompanied by seizure of goods. Order XXXIX Rule 3 of the CPC makes that instrument conditional — on recorded reasons for dispensing with notice, and on the plaintiff's complete candour. A Division Bench of Justice V. Kameswar Rao and Justice Manmeet Pritam Singh Arora has now shown what happens when the condition is broken: the injunction is vacated, seized goods are released, and the suppressing party pays costs.
How the injunction was obtained
The respondent, a pharmaceutical company, sued over a rival mark and obtained an ex-parte ad-interim injunction from a learned Single Judge on 20 May 2026, along with seizure of the appellants' products. The plaint presented the dispute as a fresh discovery — knowledge of the offending mark dated to May 2026, urgency self-evident.
The appellants' record told a different story. The respondent had issued a cease-and-desist notice on 29 October 2025 and had filed a trademark opposition on 27 January 2026. It had known of the mark for over half a year before it pleaded surprise. Neither document appeared in the plaint or the injunction application.
The Division Bench's reasoning
Reasons requirement
Order XXXIX Rule 3 CPC obliges a court granting injunction without notice to record its reasons for dispensing with notice. None were recorded — an infirmity in the order itself.
Candour requirement
A party seeking ex-parte equitable relief is bound by the strictest duty of candour. Concealing the notice and the opposition misled the court on the date of knowledge and fabricated urgency.
Pattern, not accident
Across three suits by the same filing counsel the same species of non-disclosure recurred. Borrowing the maxim made famous by Ian Fleming — once is happenstance, twice is coincidence, three times is enemy action — the Bench found design, not oversight.
Invoking the classic line of authority on suppression, including R v. Kensington Income Tax Commissioners (1917), the Bench reiterated that a litigant who obtains ex-parte relief while practising deception on the court loses the advantage so obtained, whatever the merits may later prove to be. Uberrima fides — utmost good faith — is the price of being heard alone.
The orders
| Relief | Order of the Division Bench |
|---|---|
| Ex-parte ad-interim injunction dated 20 May 2026 | Vacated. |
| Interim application under Order XXXIX Rules 1 and 2 | Dismissed. |
| Products seized on superdari | Released; appellants free to deal with them. |
| Costs | Rs. 2,00,000 payable by the respondent within two weeks. |
Lessons for commercial litigants
For plaintiffs, the judgment is a checklist in reverse: disclose prior correspondence, disclose parallel proceedings, plead the true date of knowledge, and explain delay rather than conceal it. An injunction won on an incomplete record is a liability — it invites vacation, costs and a credibility deficit that follows the party through the suit. For defendants hit by an ex-parte order, the first port of call is the record: compare the plaint's narrative against the correspondence trail, and where the gap is material, an appeal or an application under Order XXXIX Rule 4 for vacation on the ground of false or misleading statements is the designed remedy.
Practice note: In commercial suits before the Delhi courts, appeals against interlocutory injunction orders of a Single Judge lie to the Division Bench as FAO(OS) (COMM) under the Commercial Courts Act read with the Letters Patent. The strict pleading standards of commercial procedure — statement of truth, disclosure obligations under Order XI — make suppression easier to expose and harder to explain.
The judgment in FAO(OS) (COMM) 167/2026 was delivered on 20 August 2026 by a Division Bench of Justice V. Kameswar Rao and Justice Manmeet Pritam Singh Arora, Justice Arora authoring, and carries neutral citation 2026:DHC:6947-DB.
Frequently Asked Questions
What must a plaintiff disclose when seeking an ex-parte injunction?
Everything material to the court's discretion, including facts that cut against the plaintiff: prior notices exchanged, knowledge of the defendant's activities and when it arose, pending oppositions or proceedings, and delay. The Bench described the standard as the strictest duty of candour — uberrima fides — because the defendant is not present to correct the record.
What was suppressed in this case?
A cease-and-desist notice of October 2025 and a trademark opposition filed in January 2026, both showing the plaintiff had known of the defendants' mark since late 2025 — while the plaint pleaded knowledge only from May 2026 to manufacture urgency. The Court treated this as misleading the court on the date of knowledge, not an innocent omission.
What did the Division Bench order?
The ex-parte ad-interim injunction of 20 May 2026 was vacated, the interim application dismissed, products seized on superdari were directed to be released to the appellants, and the respondent was directed to pay costs of Rs. 2,00,000 within two weeks.
Does a procedural lapse by the court itself matter?
Yes. Order XXXIX Rule 3 requires the court to record reasons for granting an injunction without notice to the opposite party. The Bench noted the absence of recorded justification as an independent infirmity — a reminder that the proviso's requirements are mandatory in substance, not decorative.