More often than not, in a commercial suit, the plaintiff always moves an application for an exemption and does not effect an advance service on the defendant. Most of the time, the only region stated in that said exemption application is that the plaintiff has filed an application under Order 39 Rules 1 and 2 of CPC for an interim injunction. It is essential to understand here the underlying public interest in the process of advance service to the defendant. A contested order passed by a court does no prejudice to either side and also substantially insulates the Court from making errors, either of facts or of law. But what could be all situations and circumstances in which the exemption from advance service to the defendant is justified.
Rule 22 of Delhi High Court IPD Rules, 2022 (hereinafter “the IPD Rules”) casts an obligation on the party approaching a court to serve the respondent at least two working days in advance an advance copy of the matter along with intimation of the likely date of listing. This requirement may be dispensed by the Hon’ble Court only if the facts and given circumstances of that case warrant and, of course, on an application by parties. As per the IPD Rules, it is the discretion of the Court to dispense with an advance service based on the facts and circumstances of each case.
Also, as per Rule 6 of High Court Of Delhi Rules Governing Patent Suits, 2022, an advance service to the defendant is not mandatory if the party approaching the Court is seeking an ex-parte relief.
A corollary to both of the Rules mentioned above is if the party approaching the Court is able to satisfy the Court why advance service is not mandatory, he will be successful in getting relief of ex-parte injunction. Therefore, the question is, in what circumstances can a court dispense with the requirement of an advance service to the defendant? The exemption from advance service is allowed only in exceptional situations where there is an overarching consideration of justice, equity or public interest. The onus to prove the existence of such an exceptional situation is on the plaintiff. For example, the situation could be that if an advance service is effected to the defendant, an irreparable injury would be caused to the plaintiff. This kind of situation generally arises in the case of quia timet action. In the case of Fletcher v. Bealey [28 Ch.D. 688 (1885), Mr. Justice Pearson explained the law as to actions quia timet as follows:
“There are at least two necessary ingredients for a Quia timet action. There must, if no actual damage is proved, be proof of imminent danger, and there must also be proof that the apprehended damage will, if it comes, be very substantial. I should almost say it must be proved that it will be irreparable because, if the danger is not proved to be so imminent that no one can doubt that, if the remedy is delayed, the damage will be suffered, I think it must be shown that, if the damage does occur at any time, it will come in such a way and under such circumstances that it will be impossible for the plaintiff to protect himself against it if relief is denied to him in a Quia timet action”.
In intellectual property cases, a quia timet situation may arise when the defendant is infringing either a patent right, a trademark, or a registered design and is going to flood the market with the infringing products in the near future. So, in those circumstances, if the plaintiffs effect an advance service to the defendant, the defendant will certainly flood the markets, and it will be practically impossible to call off the infringing goods from the market even by any injunction. This situation would severely prejudice the Plaintiffs, as the defendant would then misleadingly assert that their product is already available in the market. Moreover, in Incyte Holdings Corporation & Ors. vs Tiba Pharmaceutical Pvt Ltd [CS(COMM) 81/2024], it was held that even in the event that the Court grants an injunction after hearing the defendant, recall of such infringing products from the market would be an arduous task. However, the onus lies on the plaintiff to satisfy the Court with evidence (market survey, etc.) that there is a strong apprehension that if advance service is effected, the plaintiff will suffer irreparable damage.
Another hypothetical case would be a case in which the defendants, as prior employees or associates of the plaintiff, are alleged to have poached confidential material of the plaintiff with the intent of using it for unlawful means. In House of Diagnostics LLP & Ors. vs House of Pathology Labs Private Limited [CS(COMM) 869/202], it was held that where such material is contained on the servers of the defendants, if advance service of the plaint is directed to be served on the defendants, there is a live danger of the defendants compromising the said data or erasing it altogether.
Exemption from advance service to the defendant is not a rule but rather an exception, and it should be sought only in that situation where there is a strong apprehension that if the defendant is made aware of the instant suit, the defendant will take an action which will cause an irreparable injury to the plaintiff which may not be cure even some interim relief in the form an injunction is granted. On the other hand, advance service to the defendant is based on the principle of Audi alterum partem. The test to find whether an advance service is required in a particular case or not is whether the plaintiff has avoided such injury by not effecting an advance service.
