In India, temporary injunctions are governed by Order 39 of the Civil Procedure Code, 1908. Order 39 Rule 3 provides for grant of injunction without notice to the Defendant only when it appears that the object of granting the injunction would be defeated by the delay. The courts in India have held that the main requirements for grant of temporary injunctions are:
– Prima Facie Case
-Irreparable Loss
-Balance of Convenience
In addition, there are provisions for appointment of receivers under Order 40 of the Civil Procedure Code, 1908, interalia, for protecting and preserving the property. However, the said Order also provides that ‘Nothing in this rule shall authorise the Court to remove from the possession or custody of property any person whom any party to the suit has not a present right so to remove.’
Many a times, the Plaintiff requires not only an ex-parte injunction order but also an order to search the Defendant’s premises and to seize incrementing material when it is apprehended that the Defendant will destroy or hide the same if he is forewarned. Such orders are not covered by Orders 39 or 40, but are based on the inherent jurisdiction of the court under Section 151 of the Civil Procedure Code, 1908. At such times, the Anton Pillar order comes to the aid of the Plaintiff.
Anton Pillar Orders are dubbed as the nuclear weapons of law – the BRAHMASTRA. This is the most effective remedy and ensures a quick solution to the Plaintiff’s problems of infringement. Such orders grant sweeping powers to search and seize the infringing goods without any prior notice to the infringers and take them by surprise so as to prevent the infringers from destroying or concealing the evidence of their nefarious activities. Courts appoint court commissioners to execute its orders and to search the infringers or other premises where the infringing goods are available and seize them. Once the goods are seized, there is little or no room for the infringer to escape the law. Most of the cases are immediately settled with the infringers agreeing to a decree being passed against them.
Anton Pillar orders have their origin in the case of Anton Pillar KG vs Manufacturing Processes Ltd & Ors. decided by the bench of Lord Denning (Master of Rolls) presiding in the Supreme Court of Judicature of Appeal Civil Division. Although the learned single judge granted an ex-parte injunction, he refused to permit inspection or removal of documents on the ground that this might become an instrument of oppression, particularly when a large company sues a small man.
The appeal court held that an order for inspection can be justified only in the most exceptional cases. The order sought was not for a search warrant but may seem to be a search warrant in disguise and was legitimate. It was an order in personam against the Defendant to permit inspection, and he could refuse to comply. However, such an order not only puts pressure on the Defendant to give permission but actually orders him to do so, with the result that if he failed to do so he would be guilty of contempt of court. It is only in ‘most exceptional circumstances’ that such orders be passed. The court then went on to decide in what circumstances should such and Order be made
-where it is essential in the interest of justice
-where if the Defendant is forewarned, there is grave danger that the vital evidence will be destroyed or hidden or taken beyond jurisdiction, so the ends of justice be defeated
-where inspection would do no harm to the Defendant or to his case.
The court also observed that if the Defendant refused to permit inspection, the Plaintiff should not force his way in but should bring it to the notice of the court afterwards.
This remedy is now being widely used in cases of Intellectual Property infringement and courts are day in and day out granting such orders. In appropriate cases, courts grant ex-parte injunctions and also appoint Receivers to visit the premises where the Plaintiff apprehends that they may find infringing goods and other material. Such orders include the use of force to enter the premises by breaking open the locks and doors and seeking police protection or assistance, if so required, by the Receiver. Although such orders are essential and very effective, the courts must act with due caution.
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