Case Note & Summary
The appellant, Fomento Resorts and Hotels Limited, challenged an ex-parte order dated 22.06.2017 passed by the learned District Judge-1, Panaji, which appointed a commissioner without notice to the appellant. The respondent, Novex Communication Private Limited, had filed a suit claiming copyright over musical works and alleging infringement by the appellant. Along with the suit, the respondent filed an application for interim relief seeking an injunction and appointment of a commissioner. The trial court allowed the application ex-parte and issued notice to the advocate appointed as commissioner. The High Court held that the order was improper as it was passed without notice to the appellant, who was the defendant in the suit. The court noted that under Order XXVI Rule 9 of the Code of Civil Procedure, 1908, a commissioner can be appointed only after notice to both parties, and such appointment cannot be used to collect evidence for the plaintiff. The High Court set aside the impugned order and directed the trial court to hear both parties before passing any order on the application for appointment of commissioner. The appeal was allowed with no order as to costs.
Headnote
A) Civil Procedure - Ex-parte Appointment of Commissioner - Order XXVI Rule 9 CPC - The trial court appointed a commissioner ex-parte without notice to the defendant in a copyright infringement suit. The High Court held that such an order is improper as it deprives the defendant of the opportunity to be heard. The court emphasized that a commissioner cannot be appointed to collect evidence for the plaintiff, and notice must be given to both parties before appointing a commissioner under Order XXVI Rule 9 CPC. (Paras 6-10) B) Copyright Law - Infringement Suit - Interim Relief - The respondent filed a suit alleging copyright infringement of musical works and sought interim relief including appointment of a commissioner. The High Court set aside the ex-parte order and directed the trial court to hear both parties before passing any order on the application for appointment of commissioner. (Paras 7-10)
Issue of Consideration
Whether the trial court could appoint a commissioner ex-parte without notice to the defendant in a copyright infringement suit, and whether such appointment is permissible under Order XXVI Rule 9 of the Code of Civil Procedure, 1908.
Final Decision
The appeal is allowed. The impugned order dated 22.06.2017 passed by the learned District Judge-1, Panaji, is set aside. The trial court is directed to hear both parties before passing any order on the application for appointment of commissioner. No order as to costs.
Law Points
- Ex-parte order appointing commissioner without notice to defendant is improper
- Order XXVI Rule 9 CPC requires notice to both parties
- Commissioner cannot be appointed to collect evidence for plaintiff
