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TMI Blog1999 (4) TMI 634X X X X Extracts X X X X X X X X Extracts X X X X ..... Bengali. The Advertisement gave reasons why neel should never be used. This advertisement was the subject matter of a suit in this court. An exparte interim order was passed restraining the publication of the advertisement. This was confirmed after the filing of affidavits on 24th March, 1998. According to the respondent No.1, pursuant to this order that particular advertisement was not being published in the earlier manner. According to the appellant even in its present form the advertisement continued to disparage the appellant's product. 3. The second round was in respect of a television commercial which also, according to the appellant, denigrated its product. The appellant filed a complaint under section 36B of the Monopolies and Restrictive Trade Practices Act, 1969 (referred to as the Act) before the MRTP Commission, New Delhi. The Commission initially granted an exparte order of injunction restraining the publication of the offending advertisement. This was vacated after the filing of statements and hearing the parties. An appeal was preferred before the Supreme Court under section 55 of the Act which was dismissed summarily. 4. The subject matter of this appeal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ondent on 9th April, 1999. The appeal was admitted and on the statement of counsel appearing on behalf of the respondent No. 1 that no steps would be taken to punish the offending advertisement till Wednesday no interim order was passed staying the operation of the order dated 7th April, 1999. The matter was directed to appear on 13th April. 1999 when, with the consent of the parties, it was directed that the appeal itself would be heard and disposed of on the basis of the papers available before the court. However, despite the respondent's counsels assurance, the offending advertisement continued to be shown. As such, on 16th April, 1999 when the hearing was concluded, the court stayed the order under appeal and revived the earlier order of injunction passed by the learned single Judge. 7. The respondent No. 1 raised several preliminary objections. The first was that the appeal was not maintainable. According to the respondent No. 1 no appeal lies from an exparte ad interim order or an order vacating the exparte ad-interim order. 8. The submission is unacceptable. All interim orders, including exparte ones are granted under Order 39 Rules 1 and 2 of the Code of Civil Pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 the appellate court would have taken a different view may not Justify interference with the trial court's exercise of discretion. But. as said, by GaJendragadkar-J in Printers (Mysore) Pvt. Ltd. v. Pothar Joseph : [1960]3SCR713 , the difficulty arises in the application of these principles to an individual case. In this case the learned Judge has expressed himself finally on an issue which should have been left till the disposal of the application after the filing of affidavits. He in effect held that unless an advertisement specifically refers to the appellant's product, the appellant had no cause of action and that the appellant had failed to establish that the advertisement specifically referred to the appellant's product. 12. On the other hand there is the final and reasoned decision dated 24th August 1998 of another learned single Judge of this court in connection with the first advertisement: Assuming in the advertisements insinuations were not made ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... entical issues in a separate proceeding merely on an uncertain assumption that the issues must have been decided. It is not safe to extend the principle of res judicata to such an extent so as to found it on mere guesswork. 17. Before considering the merits, we make it clear that we are, for the purpose of this appeal, limiting ourselves to considering whether the appellant had a prima facie case, and if so, where the balance of convenience lies. 18. The appellant has based its cause of action on the tort of injurious falsehood. It is claimed that three conditions are required to be established by a plaintiff in order to succeed in such a case : 1. That the representation made by the defendant concerned the plaintiffs product; 2. That the representation disparaged the plaintiffs product and were untrue; and 3. That the representations were intended to be taken seriously. 19. It is submitted that the advertisement referred to the appellants product viz. Neel disparagingly. It has relied on a survey conducted by the IMRB to show that a large percentage of the persons interviewed thought that the offending advertisement referred to the appellant's products, as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gannath Rao interpreting (I) and (11). On the basis of this, it is submitted that there was sufficient material to show that the representations made in the offending advertisement were true. It is also submitted that if a defendant believes as offending statement to be true and is willing to offer evidence in support of the statement no injunction should be granted. Finally, it is submitted that an action for slander of goods would lie only if the publication causes the plaintiff to suffer special damages. In this case, the appellant has not pleaded special damage nor that it has in fact suffered any damage by reason of the advertisement. 22. The respondent has submitted that the English Common Law did not allow the passing of an interim injunction when a defendant to an action for injurious falsehood claimed that it would Justify its stand. In Bestobell Paints Ltd. v. Bigg : 1975 FSPLR 421 a learned single Judge of the High Court in England said- There is an old and well established principle which is still applied in modern times and which is in no way affected by the recent decision by the House of Lords in American Cyanamid Corporation v. Ethicon, that no interlocutory ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ... is to protect the plaintiff against injury by violation of his rights for which he could not adequately be compensated in damages recoverable in the action if the uncertainty were resolved in his favour at the trial. The need for such protection must be weighed against the corresponding need of the defendant to be protected against injury resulting from his having been prevented from exercising his own legal rights for which he could not be adequately compensated. The court must weigh one need against another and determine where the balance of convenience lies . The interlocutory remedy is intended to preserve in status quo, the rights of parties which may appear on a prima facie case. 26. We are not persuaded to hold at this stage that different considerations apply in actions for injurious falsehood as contended by the respondents. This court is only called upon to decided whether the appellant has a prima facie case not only on facts but also on law. 27. Prima facie it appears that the appellant is right in its submission that the English law on the question of grant of injunctions in cases of injurious falsehood may not strictly be applicable in the Indian contex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the plaintiff may be discharged if he reasonably satisfies the court that the plea of Justification taken by the defendant has no basis or in other words the plaintiff must adduce as much proof as may reasonably be expected at an interlocutory stage. Significantly, in Abdul Wahab Galadari v. Indian Express Newspapers (Bombay), Limited : AIR1994Bom69 , the learned Judge considered the defence of truth and found it prima Jade satisfying. The appellant has adduced some positive evidence and at the same time has also criticized the evidence put forward by the respondent No. 1 in support of its claim for Justification that the certificates and analysis relied upon by the respondent No. 1 do not show either that the appellant's product leaves blue patches or is a failure as a whitening agent. Before the learned Judge there was no conflicting evidence as was the case in Bestobell Points Ltd. v. Bigg (supra). Was the learned Judge dissatisfied with the evidence? He does not say so. If the appellant's case that the representations are untrue are to be believed and if the learned Judge comes to the conclusion that the evidence adduced by the respondent did not support their repres ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tening at all. However it would be disparagement of Neel only if the statements are untrue. The learned single Judge has not rejected the appellant's evidence. Since he has not, we assume that he was satisfied that the use of neel did not leave blue patches nor did it fall to whiten. 36. The final question is whether the offending advertisement could be said to refer to the appellant's product. In Knupffer v. London Express Newspaper Ltd. : [1944] A.C. 116 a defamatory statement had been made about a group called Young Russia which consisted of emigrant Russian. According to the defamatory statement the group was established in France and the United States of America. The plaintiff was a Russian resident in London and claimed to be the appointed representative of the party in Great Britain and the head of the British Branch. He claimed that the defamatory statement referred to him individually. He brought an action against the respondent for damages for libel. The House of Lords said : Where the plaintiff is not named, the test which decides whether the words used refer to him is the question whether the words are such as would reasonably lead persons acquainted wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s doubtful whether it would extend to protecting a person against a claim for slander. The respondent's reliance on Tata Press Limited v. Manager Telephone Nigam Limited : AIR1995SC2438 dealt with the right of a private organisation to print and publish a list of telephone subscribers. The facts are distinguishable, but it would appear that in cases of libel the endeavour of the court should be to protect the plaintiff without unduly restricting the defendant's right of free speech. In this case the respondents are not being restrained from advertising their product. They are merely being asked to postpone the advertisement of their product in a particular way till the interlocutory application is disposed of. This tilts the scale of convenience in favour of the appellant. 40. In the absence of any satisfactory reasons given in support of the order under appeal and for the reasons stated we vacate the order under appeal and revive the order dated 30th March 1999 which will continue until the disposal of the interlocutory application. We have limited ourselves and dealt with the matter purely as if this court were dealing with the issue at the ad interim stage. Necessar ..... X X X X Extracts X X X X X X X X Extracts X X X X
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