Safiya Malik

The Karnataka High Court has adjudicated on the scope of ex-parte appointment of a Court Commissioner in an intellectual property rights dispute. The petition sought to challenge an order of the trial court that refused to grant an ex-parte appointment of a Commissioner in a case concerning alleged misappropriation of confidential and proprietary information. The court examined whether an ex-parte order for search and seizure of digital evidence was legally sustainable. The matter was brought under Article 227 of the Constitution of India.

The writ petition was filed by NewSpace Research and Technologies Private Limited against multiple respondents, including Anirudh Putsala, Lenviz Technologies Private Limited, Prabhat Sharma, and Akash Patil. The petitioner alleged unauthorized usage and misappropriation of proprietary information by the respondents. The suit before the trial court sought a decree of perpetual and mandatory injunction to restrain the defendants from "copying, sharing, or using in any manner the confidential/proprietary information/material belonging to the plaintiff."

The petitioner also sought "a direction to the defendants to deliver up all copies of and destroy any remaining physical and digital copies of the confidential/proprietary information/material belonging to the plaintiff."

During the proceedings before the trial court, the petitioner filed an application under Order XXXIX Rules 1 and 2 read with Section 151 of the Civil Procedure Code (CPC) for an ex-parte temporary injunction. A separate application under Order XXVI Rules 1 and 9 read with Section 151 of CPC was filed for an ex-parte order appointing a Commissioner.

The trial court granted an ex-parte temporary injunction restraining the defendants from using or sharing the alleged confidential material. However, the court refused to appoint a Commissioner on an ex-parte basis and instead issued an emergent notice to the respondents. Aggrieved by this order, the petitioner approached the Karnataka High Court under Article 227 of the Constitution of India.

The Karnataka High Court examined the scope of ex-parte appointment of a Court Commissioner in cases involving intellectual property disputes. The court stated that "the intellectual property, though intangible, is probably the most important form of property today." It observed that intellectual property rights grant the holder the ability to "(i) utilize, (ii) dispose of rights, and (iii) initiate legal action against infringement."

The court discussed Anton Piller orders, stating that they "allow an applicant to search a defendant’s premises and seize evidence without prior notice or warning." It observed that "such orders are used in intellectual property cases to prevent the tampering of evidence."

Referring to the Delhi High Court’s ruling in Autodesk Inc. v. A.V.T. Shankardass, the Karnataka High Court noted: "The object of appointment of a Local Commissioner in software piracy matters is not as much to collect evidence but to preserve and protect the infringing evidence. The pirated software or incriminating evidence can only be obtained from the premises of the opposite party alone, and in the absence of an ex-parte appointment of a Local Commissioner, there is a likelihood that such evidence may be lost, removed, or destroyed."

The court further recorded that in cases of software infringement, ex-parte appointments of commissioners are "desirable to ensure that the surprise element remains intact."

It also referred to legal precedents, including the Supreme Court’s decision in Padam Sen v. State of Uttar Pradesh, where the court held that a commissioner cannot be appointed for forcibly seizing documents unless a party fails to produce them when required. The Karnataka High Court observed that the judgment in Padam Sen did not directly address ex-parte orders under Order XXVI Rule 9 of CPC.

The court cited another Supreme Court ruling in Special Leave to Appeal (C) Nos.12950-12951/2022, which held: "The High Court was not justified in considering the legality and validity of the Court Commissioner's Report. It should have been left to the concerned trial court to take a call on the Court Commissioner's Report, after giving an opportunity to the parties to present their objections."

The Karnataka High Court passed the following directives:

1. The writ petition was disposed of, with a direction that the trial court shall decide the legality and validity of the Court Commissioner’s report after hearing both parties.

2. The registry was instructed to transfer the Court Commissioner’s report to the trial court.

3. The trial court was directed to consider objections from the respondents before deciding on the validity of the report.

4. The court clarified that it had not expressed any opinion on the merits of the Commissioner’s report.

5. The trial court was instructed to dispose of IA No. IV as expeditiously as possible.

Case Title: NewSpace Research and Technologies Private Limited v. Anirudh Putsala & Ors.
Case Number: WP No. 32999 of 2024
Bench: Justice H.T. Narendra Prasad

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