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A.K. Enterprises, Agra Vs. Sterling Machine Tolls and Another - Court Judgment

LegalCrystal Citation
SubjectIntellectual Property Rights
CourtAllahabad High Court
Decided On
Case NumberCivil Revision No. 89 of 1999
Judge
Reported in2000(2)AWC897
ActsTrade and Merchandise Marks Act, 1958 - Sections 2 and 105; Code of Civil Procedure (CPC), 1908 - Sections 2(4), 3, 24, 62, 62(2) and 115; Bengal, Agra and Assam Civil Courts Act, 1887 - Sections 8, 8(1) and 8(2); Arbitration and Conciliation Act, 1996 - Sections 2, 34, 42 and 110; General Clauses Act, 1897 - Sections 3; Allahabad High Courts Rules, 1952 - Rule 11; Industrial Disputes Act, 1947 - Sections 7(3); Constitution of India- Article 236; Copyright Act, 1957 - Sections 62
AppellantA.K. Enterprises, Agra
RespondentSterling Machine Tolls and Another
Appellant AdvocateR.K. Jain and ;Madho Jain, Advs.
Respondent Advocate R.P. Geol and ;Manish Geol, Advs.
Excerpt:
.....act, 1996 - suit for infringement of registered trade mark - transferred to additional district judge included in district court - held, transfer and institution of suit in court of additional district judge is valid. - - united concern, air 1967 mad 121,a division bench has held that it will not be proper to resort to the definition given in section 3 of general clauses act, 1897 of the term 'district judge',because it may well happen that in certain cases, a district judge may not be equivalent to the presiding officer of a district court. the civil procedure code, to which reference is made in the definition clause in some of the other enactments like guardians and wards act and the indian patents and designs act already referred to in section 2(4) gives the definition..........(hereinafter called a 'district court'), and includes the local limits of the ordinary original civil jurisdiction of a high court.'6. the contention of sri r. k. jain is that additional district judge cannot be a principal civil court of original jurisdiction and there can be only one principal civil court of original jurisdiction. it is not possible to say that although the additional district judge is not 'principal' civil court of original jurisdiction', still the suit under section 105 of the act can be instituted in the court of additional district judge. his further contention is that the power to transfer of a suit or appeal or other proceedings under section 24, c.p.c. cannot be invoked to transfer a suit under section 105 of the act from the court of principal civil court of.....
Judgment:

I.M. Quddusi, J.

1. Under Section 105 of the Trade and Merchandise Marks Act, 1958 [hereinafter referred to as 'Act'). It has been provided that no suit for infringement of a registered trade mark, or relating to any right in a registered trade mark or for passing off arising out of the use by the defendant of any trade mark which is identical with or deceptively similar to the plaintiffs' trade mark whether registered or unregistered, shall be instituted in any Court inferior to a District Court having jurisdiction to try the suit.

2. In this revision, a short question is involved as to whether the Court of Additional District Judge can try and decide the suit instituted in the Court of District Judge and lateron transferred to it for trial and decision and whether the Court of Additional District Judge is an inferior Court to a District Court. The 'District Court' has been defined in clause (e) of sub-section (1) of Section 2 of the Act. According to which, 'District Court' has the meaning assigned to it in the Code of Civil Procedure, 1908.

3. I have heard Sri R. K. Jain, learned Senior Advocate assisted by Sri Madho Jain for the revisionist applicant and Sri R. P. Goel. learned Senior Advocate assisted by Sri Manish Goel for the opposite parties at quite length.

4. The brief facts of the case are that the opposite parties instituted a suit for relief of prohibitory injunction restraining the defendants and its agents from manufacturing, selling, offering for sale, advertising directly or indirectly dealing in diesel engines, pump-sets and generating sets under the Trade Mark 'Bharat' or 'Bharat Marchal'. The suit was instituted in the Court of District Judge, Agra and was registered as Suit No. 2 of 1995 (M/s. Sterling Machine Tools--Plaintiff No. 1, Shivas Industries--plaintiff No. 2 v. A. K. Enterprises defendant). The notice was issued by the District Judge. Agra and the defendant-revisionist filed written statement. The District Judge then transferred the suit to the Court of 2nd Additional District Judge, Agra. Thereafter, the plaintiff filed replication and arguments were heard. The matter was fixed for delivery of judgment on 26th May, 1998. but the Court of 2nd Additional District Judge was lying vacant from June. 1998 as such, the plaintiffs moved an application for transferring the case from that Court. Thereafter, the District Judge transferred the case to the Court of 12th Additional District Judge, Agra and then the matter was fixed for rehearing. On 28th May. 1998, the revisionist, for the first time, moved application (53-Ga) to the effect that the Court of 12th Additional District Judge has no Jurisdiction to try the suit which was heard and rejected vide order dated 23.1.1999. Being aggrieved by the said order, therevisionist has preferred the present revision under Section 115. C.P.C.

5. In the Code of Civil Procedure. 1908. the word 'district' has been defined as under :

''district' means the local limits of the Jurisdiction of a principal civil court of original jurisdiction (hereinafter called a 'District Court'), and includes the local limits of the ordinary original Civil Jurisdiction of a High Court.'

6. The contention of Sri R. K. Jain is that Additional District Judge cannot be a principal Civil Court of original Jurisdiction and there can be only one Principal Civil Court of original Jurisdiction. It is not possible to say that although the Additional District Judge is not 'principal' Civil Court of original jurisdiction', still the suit under Section 105 of the Act can be instituted in the Court of Additional District Judge. His further contention is that the power to transfer of a suit or appeal or other proceedings under Section 24, C.P.C. cannot be invoked to transfer a suit under Section 105 of the Act from the Court of Principal Civil Court of original Jurisdiction to the Court of Additional District Judge unless there is a provision empowering the District Judge to do so. The object behind under Section 105 of the Act is that suit should not only be not instituted in any Court inferior to District Court. He has further argued that the words 'having Jurisdiction to try the suit' in Section 105 of the Act denote that the suit should not only be instituted in the district court, but should also be tried by it, Hence, the Additional District Judge has no jurisdiction to try and decide the suit in question which has been filed under Section 105 of the Act. In support of his contention, he has cited some case laws. In George and another v. C. Cheriyan and others, AIR 1986 Ker 12, it has been held that the Munsifs Court had no jurisdiction to try the suit and in view of Section 62 of the Act, the District Court only had jurisdiction to try the same. In Daily Calendar Supplying Bureau, Sivakasi v. United Concern, AIR 1967 Mad 121,a Division Bench has held that it will not be proper to resort to the definition given in Section 3 of General Clauses Act, 1897 of the term 'District Judge', because it may well happen that in certain cases, a District Judge may not be equivalent to the Presiding Officer of a District Court. The Civil Procedure Code, to which reference is made in the definition clause in some of the other enactments like Guardians and Wards Act and the Indian Patents and Designs Act already referred to in Section 2(4) gives the definition of -District' and it was held that the term of Section 62, specially subsection (2) imply that the definitions of District and District Court in the Civil Procedure Code will apply for the purpose of determining the jurisdiction under the Copyright Act. We hold that the High Court has jurisdiction to try the suit. In this connection, decision in I.T.I. Naini v. District Judge, Allahabad, 1998 (3) AWC 2244 has also been cited by Sri R. K. Jain which is in respect of Arbitration Act, and it was held therein that the Additional District Judge is shorn of jurisdiction to entertain any application under Section 34 of the Act and the District Judge cannot by invoking the provisions contained in Section 8(2) of the Bengal, Agra and Assam Civil Courts Act. 1887. transfer the application for its disposal to the Court of an Additional District Judge ......an Additional District Judgemay have the jurisdiction to entertain an application under Section 34 of the Arbitration and Conciliation Act, which is transferred to his Court by the District Judge under Section (2) of the Bengal, Agra and Assam Civil Courts Act, 1887, provided that the transfer of the application by the District Judge to the Court of an Additional District Judge is not inhibited by the former Act, it was held in para 12 therein that an application for setting aside an award under Section 34 of the Act is as much an application 'with respect to an arbitration agreement' as it is for 'setting aside the arbitral award' and it is a matter of statutory compulsion that such application is made to theprincipal civil court of original Jurisdiction in a district or the High Court in exercise of its ordinary original civil jurisdiction having jurisdiction to decide the questions forming the subject-matter of arbitration if the same had been the subject-matter of a suit and it is again a matter of statutory mandate that the Court to which the application is made alone shall have Jurisdiction over the arbitral proceedings and all subsequent applications arising out of that agreement, and the arbitral proceedings shall be made in that Court and no other Court except the appellate court being in seisin over the matter. The power to transfer/assign the application to any other Court, otherwise having jurisdiction to decide the question forming the subject-matter of arbitration, had it been the subject-matter of a suit, has been implledly taken away by Section 42 of the Act which is couched in a language fraught with overriding effect. I am conscious of the fact that the view I am taking, may result in adding burden to the District Judge but the plain or unambiguous words of the statute i.e.. words which are reasonably susceptible to only one meaning will have to be given effect irrespective of consequences (see Nelson Motts v. U.O.I., AIR 1992 SC 1981).

7. Sri R. P. Goel. learned senior counsel for the opposite parties contended that sub-section (e) o f Section 2 of the Act made it clear that the provisions of Code of Civil Procedure is applicable to the Act. He has further argued that Section 110 of the Act provides for rule making powers of the High Court. The High Court has made Rules in this regard which are given in Chapter 35A of the Allahabad High Court Rules. Rule 11 of these Rules provide for application of Civil Procedure Code to the Act. In Civil Procedure Code, the word 'District Court' has not been defined. Thus, in order to construe the definition as given in Section 2(e) of the Act, reference is made to the meaning of the word 'district' and the meaning of the word 'Court' as have been used in the Civil ProcedureCode. He has further submitted that inferior in grade implies that against an order passed by inferior court, the remedy will lie before the Court of superior Jurisdiction and as the orders passed by Additional District Judge cannot be challenged before the District Judge in appeal, revision or reference etc. it cannot be said that the Court of Additional District Judge is inferior to the Court of District Judge. The next higher forum against the orders of Additional District Judge will be the High Court for the reasons that Section 3 of Code of Civil Procedure provides that the District Court will be subordinate to the High Court, hence the Additional District Judge cannot be termed separately to the District Judge in exercise of the jurisdiction in judicial side. He has placed reliance on the following cases, details of which are given as under:

1. Smt. Shakuntala Devi v. Amir Hasan. AIR 1986 AH 234. In this case, it has been held that whenever any matter is transferred to the Additional District Judges, then the Additional District Judges are exercising the same powers as of the District Judges.

2. In Bodrilal Jodhraj & Sons v. Girdharilal and another, AIR 1988 (M) 24, it has been held that there is no subordination between the Additional District Judges and District Judges so as to empower the district Judge to exercise the revlsional powers under Section 115, C.P.C. In respect of the order passed by the Court of Additional District Judge.

3. In Court Shanker v. Firm Dullchand Laxmi Narayan, AIR 1959 (M) 188, It has been held that Additional District Judge but the Court of an Additional District Judge cannot in terms of Section 3 of the Civil Procedure Code be said to be subordinate to the Court of District Judge. It is a part and parcel of the District Court itself as it is in no sense acivil court of a grade inferior to that of a District Court. The Court of Civil Judge would certainly be suchinferior court.

4. In G. C. Bezbarua v. State of Assam, AIR 1954 Assam 161. It has been held that the word 'District Judge' in Section 7(3)(b) of the industrial Disputes Act includes an Additional District Judge and it would be, therefore, unreasonable to exclude an Additional District Judge from that category of the District Judge who for all practical purposes discharges the same judicial functions as the District Judge.

5. In Western India Match Co. Ltd. v. Haji Abbas Hussain Mullah Ehsan Ali. AIR 1962 AP 127. it has been held that City Civil Court whose Presiding Officer is Additional Chief Judge is not Court inferior to the City Civil Court whose presiding officer is the Chief Judge. It follows that Section 73 of the Trade Marks Act does not bar the trial of the suit by the lower court and that the lower court has jurisdiction to try it.

6. In Nripendra Nath Bagchi v. Chief Secretary Government of Bengal. AIR 1961 Cal 1, it has been held that the expression 'District Judge' includes inter alia an Additional District Judge in Article 236 of the Constitution.

8. Before proceeding further, it would be necessary to peruse the relevant provisions of the Act which are quoted below :

Section 2(1)(e).-- 'District Court' has the meaning assigned to it in Code of Civil Procedure, 1908.

Section 105.-- Suit for infringement, etc., to be instituted before District Court--No suit-

(a) for the infringement of a registered trade mark ; or

(b) relating to any right in a registered trade mark : or

(c) for passing off arising out of the use by the defendant of any trade mark which is identical with or deceptively similar to the plaintiff's trade mark, whether registered or unregistered ; shall be instituted in any Court inferior to a District Court having jurisdiction to try the suit.'

Likewise, the provisions of Code of Civil Procedure are also liable to be perused which are quoted herein below :

Section 2(4). C.P.C.'district' means the local limits of the jurisdiction of a principal Civil Court of original Jurisdiction (hereinafter called a 'District Court') and includes the local limits of the ordinary original civil Jurisdiction of a High Court'.

9. Provisions of Section 8 of Bengal. Agra and Assam Civil Courts Act are also relevant which are as under :

Section 8(1): Additional Judges :

'Where the business pending before any District Judge requires the aid of Additional Judges for its speedy disposal, the State Government may, having consulted the High Court appoint such Additional Judges as may be requisite.

(2) Additional Judges so appointed shall discharge any of the functions of a District Judge which the District Judge may assign to them, and, in the discharge of those functions, they shall exercise the same powers as the District Judge.'

10. Now first of all. the provisions of Section 105 of the Act are to be considered which provide that no suit shall be instituted in any Court inferior to a District Court having jurisdiction to try the suit. Here weare concerned with the Institution of suit and the District Court having jurisdiction to try the suit. In plain and natural meaning in respect of the institution of the suit and in a District Court having Jurisdiction to try the suit would be that the suit is liable to be instituted in the District Court having jurisdiction to try the suit. Meaning thereby that in case, suit is liable to be instituted within the territorial Jurisdiction of a District Court due to cause of action etc., the same cannot be instituted in any other District Court of different territorial jurisdiction which has no jurisdiction to try the suit due to the reason that the cause of action has not arisen within the territorial jurisdiction of that Court and the words 'having jurisdiction to try the suit' make it clear that no other District Court than the District Court under whose territorial jurisdiction the cause of action for instituting the suit has arisen in accordance with law. Now coining to the 'District Court', we have to consider the definition of the 'District' given in sub-section (4) of Section 2, C.P.C., according to which 'district' means the local limits of the jurisdiction of a principal civil court of original jurisdiction (hereinafter called a 'District Court'), and includes the local limits of the ordinary original civil jurisdiction of a High Court. The local limit of jurisdiction of principal civil court of original jurisdiction have been assigned and no separate or independent and the post of Additional Judges have been created under Bengal, Agra and Assam Civil Court Act for speedy disposal of the cases by the District Court with the aid of the additional Judges. The intention of the Legislature to create the post of Additional Judges according to the requirement in the district is for the speedy disposal of the cases by the District Judge with the aid of the Additional Judges. In view of this. it can be said that the District Judge decides cases with the aid of Additional Judges, they discharge all functions as Additional Judges in discharge of the functions of the District Judges. Hence, the Additional District Judge is part andparcel of the District Judge and is covered within the definition of 'District Court'. Had there been a separate identity or conferments of limits of territorial jurisdiction separately to the Additional District Judges with over all control over all the Additional District Judges with the territorial jurisdiction conferred to them, by the District Judge conferring upon them total territorial jurisdiction of all the Additional Judges, it could have been said that the Principal Civil Judge of original jurisdiction is the District Judge and under his control with the small territorial jurisdiction, the Additional District Judge cannot be termed as Principal Civil Court of original Jurisdiction. For example, the provisions regarding Executive Magistrates as provided in the Criminal Procedure Code, the State Government has been conferred powers to appoint in every district and in every metropolitan area, as many persons as it thinks fit to be Executive Magistrates and shall appoint one of them to be the District Magistrate and the District Magistrate has been empowered to define the local limits of the areas within which the Executive Magistrate exercises all powers which may be invested under the Code of Criminal Procedure and for all purposes those Executive Magistrates shall be subordinate to the District Magistrate but they have been conferred jurisdiction over their respective areas which they exercise and the District Magistrate has also to exercise the same powers within his district which an Executive Magistrate exercises within his subdivision. in that case, it cannot be said that an Executive Magistrate to whom a particular area has been assigned to exercise the jurisdiction and powers of an Executive Magistrate independently, is part and parcel of the District Magistrate or is not inferior to the District Magistrate. in the matter of Additional District Judges, the jurisdiction is exercised by them without any limitation of area and he can exercise jurisdiction over the whole area of the District Court. Hence, in view of the provisions of sub-section (2) of Section 8 of Bengal, Agra and AssamCivil Court Act. an order passed by the Additional District Judge, for all purposes shall be deemed to have been passed by the District Court. The Additional District Judge is part and parcel of the District Court and for all purposes, it is a District Court within the meaning of Section 2(1)(e) of the Act.

11. The intention of the Legislature to restrict the institution of suit in a District Court and not in any Court inferior to a District Court is that the District Court may not hear the appeals over the orders/ judgments passed by the inferior Court. Hence, the purpose of making such restriction by the Legislature would not certainly be defeated if the suit is tried by Additional District Judge appointed by the State Government after having consulted the High Court for the aid of District Judge for speedy disposal of the cases pending the District Judge. Further, it is a matter of consideration that the word 'any Court inferior to a District Court' used in Section 105 of the Act is meant the Court inferior to District Court in the administrative matters or inferior to a District Court in respect of the exercise of Judicial powers. To my mind, the restriction imposed under Section 105 of the Act regarding institution of suit in the inferior Court to District Court connotes in respect of judicial exercise and not on administrative side. This section has no concern with the administrative affairs nor with the management of the Courts. It has only concern with the judicial exercise of the powers.

12. The case law referred to in the instant case by Sri R. K. Jain, learned counsel for revisionist-applicant are also liable to be considered in the light of the above discussion. The case of Smt. Shakuntala Devi, (supra), referred by Sri R. K. Jain lays down that the District Judge under his power under Section 24. C.P.C. can transfer any application moved before him to the Court of Additional District Judge for disposal and the Additional District Judge rejected the application fortransfer of suit by observing that the applicant/plaintiff could move an application in the Court concerned (trial court) for withdrawal of the suit with permission to file the same in the Court of competent jurisdiction and the order was not without Jurisdiction. This case has no relevance with the matter in question. The other case of K. I. George, (supra) in which, it has been held that the Munsifs Court had no Jurisdiction to try the suit and in view of Section 62 of the Copyright Act. 1957. the District Court had only Jurisdiction to try the same, has also no (relevance) in the matter in hand as in that case, the suit was instituted in the Court of Munsif and it was held that the Munslf had no jurisdiction and the District Court had only Jurisdiction to try the suit, but it was a matter of consideration before that Court that the Additional District Judge comes within the 'District Court' or not. in the matter of Daily Calendar Supplying Bureau, (supra), it has been held that when the High Court exercises its original civil jurisdiction over the City Court, it can be deemed to be a District Court, hence, this case law has also no relevance in the matter in hand. In the matter of I.T.I. Ltd.. (supra), it has been held that the Court of Additional District Judge is shown of jurisdiction to entertain an application under Section 34 of the Arbitration Act and the District Judge cannot invoke the provisions of Section 8(2) of the Bengal, Agra and Assam Civil Courts Act. 1887. transfer the application for its disposal to the Court of an Additional District Judge, but the provisions of Section 42 of the Arbitration Act are not pari meteria to Section 105 of the Trade and Merchandise Marks Act, 1958. The provisions of Section 42 of the Arbitration and Conciliation Act, 1996 are quoted herein below :

'42. Jurisdiction.--Notwithstanding anythingcontained elsewhere in this partor in any other law for the timebeing in force, where with respectto an arbitration agreement anyapplication under this part hasbeen made in a Court, that Courtalone shall have jurisdiction overthe arbitral proceedings and all subsequent applications arising out of that agreement and the arbitral proceedings shall be made in that Court and in no other Court.'

13. A perusal of the above provisions show that the word 'alone' has been used therein, meaning thereby that no other Court except with respect to Arbitration Agreement, any application under that part has been made, shall have jurisdiction over the arbitral proceedings. The word 'Court' has been defined in Section 2(e) of the Arbitration and Conciliation Act, 1996. According to which, the 'Court' means the principal civil court of original jurisdiction in a district, and includes the High Court in exercise of its ordinary original civil jurisdiction, having jurisdiction to decide the question forming the subject-matter of arbitration if the same had been the subject-matter of a suit but does not include any civil court of a grade inferior to such principal civil court or any court of Small Causes. The word 'alone' does not find place in Section 105 of the Act.

14. Hence it cannot be said that the provisions of Section 42 of the Arbitration and Conciliation Act, 1996 are in pari materia to the provision of Section 105 of the Act. In my view, the Court which has Jurisdiction to try a suit to be tried by principal civil court of original Jurisdiction. Learned counsel for the respondents Sri R. P. Goel has submitted that the provisions of Civil Procedure Code are applicable in the proceedings held under the Act. He has referred Section 110 of the Act in which power of High Court to make rule consistent with these Acts as to the conduct and procedure of all proceedings under the Act. before it has been conferred. in Chapter 35-A of the Allahabad High Court Rules, 1952 the rules under the Trade and Merchandise Marks Act have been framed. In Rule 11 of the application of Code of Civil Procedure and Rules and Forms of the Court have been provided, which is reproduced below :

'Application of the Code of Civil Procedure and Rules and Forms of the Court.--Matters not provided for in the foregoing Rules shall be governed by the provisions of the Code of Civil Procedure. 1908. and the Rules of the Court, shall apply mutatis mutandis to all proceedings under the Act :

Provided that it shall not be necessary for the Court to frameissues.'

15. The other provisions In the aforesaid Rules are made for filing of application or appeals under any provisions of the Act. It is necessary to notice that there is no provision given in the Act for filing appeal or revision against the decision made or order passed in a suit filed under Section 105 of the Act. Hence naturally the provisions of Civil Procedure Code would apply. This cannot be disputed due to the fact that the present revision has been filed by the revisionist under Section 115. C.P.C. and it has been indicated specifically in the revision that the same has been filed under Section 115, C.P.C. However, provisions of Section 24, C.P.C. would not be applicable in the instant matter as here the statutory provisions i.e., Section 8 of Bengal. Agra and Assam Civil Court Act would be applicable in which it has been provided that the Additional Judges are appointed for the aid of District Judge and they shall discharge any of the function of a District Judge which the District Judge may have assigned to them. Hence. If the District Judge has assigned any work to them or to any of the Additional District Judge, the same shall be deemed to have been discharged, as if the same has been discharged by the District Judge.

16. This is also a question of worth consideration that if a decree has been passed by the Additional District Judge whether for all purposes It should be deemed to have been passed by the District Judge or Principal Civil Court of Original Jurisdiction. The decree passed by the Additional District Judge cannotbe termed as the decree passed by the Court subordinate to the District Court. Since the appointment of an Additional Judge is made under Section 8(1) of Bengal, Agra and Assam Civil Court Act only where the business pending before any District Judge requires the aid of Additional Judge for its speedy disposal, hence the decree passed or orders made in the case assigned to an Additional District Judge by the District Judge due to rush of work for his aid. It cannot be said that the same has not been passed by the District Court.

17. The last question for consideration is that in Section 105 of the Act. there is restriction to institute a suit in a Court inferior to the District Court and in the instant matter certainly the institution has been in the Court of District Judge which has been transferred to Additional District Judge by the District Judge in view of the provisions of Section 8 of Bengal, Agra and Assam Civil Court Act. There is no restriction to try the suit by any other Court of equal status as provided in Section 8(2) of the Bengal, Agra and Assam Civil Court Act. In view of this, it cannot be said that the Additional District Judge has no jurisdiction to try the suit. Besides this to my mind even if the District Judge takes aid from the Additional District Judge for the purpose of institution of a suit the same is liable to be instituted there and the same should be deemed to have been instituted in the Principal Civil Court of original jurisdiction as the Additional District Judge is part and parcel of the District Judge.

18. In view of what has been discussed above, the revision fallsand is dismissed.


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