Ex Parte and Interim Ex Parte Relief

1Ex-parte orders are usually made for a limited period. The court would fix the time for the next hearing when such orders are passed. Ex-parte orders are instrumental in bringing the defendant to the court and ensure that the defendant takes immediate action to contest the proceeding. The ex-parte order would be vacated if the plaintiff delays in bringing the suit for hearing after having procured the ex-parte order. (See Hongkong Toy Centre v Tomy UK [1994] FSR 593 (Patents Court). The plaintiff delayed in bringing the motion to hearing for 11 months. The court refused to grant interim injunction as the delay was inexcusable and inordinate.)

2In Merck Sharp and Dohme v Glenmark Pharmaceuticals (2015) the Division Bench held that “in patent disputes, an ex-parte or even an in limine decision (i.e at the threshold stage) of an interlocutory application should be avoided” (para 29).

3In F Hoffmann-La Roche v Cipla (2009) the Division Bench observed that “There could well be a situation where the Plaintiffs were pressing for an ex parte ad interim injunction” (para 39), and held that “it would be incumbent on the Plaintiffs to make a full disclosure of the complete specification of the product whose patent is claimed to have been infringed” and that “Otherwise it would be a case of suppression of material facts that would have a bearing on the question” (para 40).

4In Ravi Kamal Bali v Kala Tech (2008) the Bombay High Court held that “The power of the Court to grant ad-interim reliefs without notice to the other side is an important one to do justice in certain cases where the issuance of a notice to the other side would defeat the purpose of the application and very often the suit itself. It is a power which atleast in this Court is exercised sparingly. Indeed, it ought to be exercised sparingly as it affects the rights of parties without affording them an opportunity of being heard. The power is important, and indeed invaluable including in cases which involve the protection of intellectual property rights.” (para 57) It held that “a party seeking an order without notice to the other side ought to make a honest and full disclosure of facts. There may be cases where an incomplete disclosure may not be significant. There may be cases where the omission to disclose a fact may not be deliberate. Where however, the Court finds that the application contained a representation which was deliberately incorrect, it would be justified in denying the discretionary relief of an injunction.” (para 57) It held that “I do not suggest for a moment that mere delay would itself disentitle the Plaintiff to the injunction. I would however deny the Plaintiff an injunction the present case having come to the conclusion albeit prima-facie, that the injunction was sought on a representation which was incorrect as to a material aspect.” (para 58)

5In Ravi Kamal the Court held that “A party that discloses the necessary facts cannot be faulted or penalized for the Court having passed a wrong order or an order held by the Appeal Court to be wrong.” (para 45) It held that “the office should not accept or act upon any preceipe from the parties or their Advocates for not showing the names of the parties or any of them on the board of the Court. This is an aspect for the Court to decide.” (para 60)

6In Bilcare v Amartara (2007), where “The plaintiff was granted ad interim ex parte order on 01.08.2006.” (para 6), the Delhi High Court held that “In all such matters, it is trite to say that a party must disclose all facts and come clean before the Court. Non disclosure, concealment of facts or improper disclosure would result in denial of the equitable relief of injunction.” (para 58) Of the plaintiff’s failure to plead that it sourced the film from a supplier, the Court said that “Firstly the plaintiff failed to disclose this important fact in the plaint. The case set up was that of manufacture by the plaintiff itself.” (para 62) and held that “In my considered view this ground alone should be sufficient to deny the plaintiff the continuation of any interim relief.” (para 63) The Court ordered that “Interim orders dated 01.08.2006 are vacated.” (para 91)

7In Incyte Holdings v Melody Healthcare (2026) the Delhi High Court granted an ex parte ad interim injunction on a pleaded offer for sale, holding that “the plaintiffs have made out a prima facie case for grant of ex parte ad interim injunction” (para 33), that “The balance of convenience is also in favour of an ex parte ad interim injunction being passed since they have a valid and subsisting patent, the term of which has not yet expired whereas the defendants are yet to commercially launch their product” (para 34), and that “the plaintiffs will suffer an irreparable loss and injury if interim relief is not granted till the next date of hearing” (para 35), and directing that “Provisions of Order XXXIX Rule 3 CPC be complied with qua the defendants within a period of two weeks from today” (para 37).