Profits for the wrongdoer

Civil Law

Profits for the wrongdoer

Para 45: We have carefully examined the written submissions of the learned Amicus Curiae and learned counsel for the parties. We are clearly of the view that unless we ensure that wrongdoers are denied profit or undue benefit from the frivolous litigation, it would be difficult to control frivolous and uncalled-for litigations. In order to curb uncalled-for frivolous litigation, the courts have to ensure that there is no incentive or motive for uncalled-for litigation. It is a matter of common experience that the court’s otherwise scarce and valuable time is consumed or more appropriately wasted in a large number of uncalled-for cases.

Para 46: Usually the court should be cautious and extremely careful while granting ex-parte ad interim injunctions. The better course for the court is to give short notice and in some cases, even dasti notice, hear both the parties and then pass suitable bipartite orders. Experience reveals that ex-parte interim injunction orders in some cases can create havoc and getting them vacated or modified in our existing judicial system is a nightmare. Therefore, as a rule, the court should grant an interim injunction or stay order only after hearing the defendants or the respondents and in case the court has to grant an ex-parte injunction in exceptional cases then while granting injunction it must record in the order that if the suit is eventually dismissed, the plaintiff or the petitioner will have to pay full restitution, actual or realistic costs or mesne profits.

Para 47: If an ex-parte injunction order is granted, then in that case an Endeavour should be made to dispose of the application for injunction as expeditiously as may be possible, preferably as soon as the defendant appears in the court.

Para 48: It is also a matter of common experience that once an ad interim injunction is granted, the plaintiff or the petitioner would make all the efforts to ensure that injunction continues indefinitely. The other appropriate order can be to limit the life of the ex-parte injunction or stay order for a week or so because in such cases the usual tendency of unnecessarily prolonging the matters by the plaintiffs or the petitioners after obtaining ex-parte injunction orders or stay orders may not find encouragement. We have to dispel the common impression that a party by obtaining an injunction based on even false averments and forged documents will tire out the true owner and ultimately the true owner will have to give up to the wrongdoer his legitimate profit.       

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