Delhi High Court: The Divisional Bench of Badar Durez and Ashutosh Kumar, JJ. while disposing of an appeal gave relief to party whose suit was dismissed at the admission stage by invoking the provisions of Order XIII-A of the Code of Civil Procedure, 1908. It was held by the Court that appeal was dismissed at its admission stage without issuing summons and without any application for summary judgement in the absence of which the Judge himself cannot invoke Order XIII-A CPC.
In the present case the appellants had filled an appeal against the defendants for permanent injunction restraining them from infringement of trademarks and also claiming damages of up to Rs 1 Crore . The appeal was dismissed by the court by invoking Rule 3 of Order XIII-A of CPC, Which according to the learned Single Judge could be invoked by the court if it thinks there is no real prospect of the plaintiff succeeding on the claim or no prospect of the defendant successfully defending the claim, in such cases the court in order to not take upon itself the burden of new cases without following any procedure for issuing summary judgement, can dismiss an appeal.
The Divisional Bench differed in view and held that this power can be exercised by the court only after summons have been issued and thereafter application is filed for summary judgement. The Court also found that the Single Judge had based his conclusion of denying the appeal on facts which he had observed personally, the Divisional Bench disregarded this method and observed that the Judge could not become witness in a case before him that too without giving opportunity of rebuttal to the appellants. [Bright Enterprises Private Ltd. v. MJ Bizcraft LLP, 2017 SCC OnLine Del 6394 , decided on 4.01.2016]