1. This is an application, by Messrs. Watkins Mayor & Company, Jullindur, for rectification of the registration of a trade-mark under Section 46 of the Trade Marks Act, 1940.
2. An objection has been taken on behalf of the opposite party, Jessa Singh-Uttam Bingh of Bombay to the jurisdiction of this Court. The petitioners have alleged that they are the registered owners of the trade-mark 'Lion' - 'Sher Marka' since 1926 and that the opposite party by getting registered a trade-mark with the figure of 'Tiger' or 'Panther' have infringed their trade-mark-
3. The question of jurisdiction depends on the interpretation of Sections 46 and 72 of the Trade Marks Act. The petitioners have also made an application for amendment of their petition under Order VI, Rule 17, Civil Procedure Code. In this they allege that a permanent injunction was obtained by them in the Court of the District Judge, Jullundur, on the 21st March 1950 and they took out an execution of that decree on the 2lst August 1951 i.e., during the pendency of the application in this Court. By this application the applicants have tried to bring their case within Section 72 (a) of the Act which is as follows: '72. Where under this Act an applicant has the option of making an application either to a High Court or to the Registrar: --(a) if any suit or other proceedings concerning the trade mark in question is pending before a High Court or a District Court, the application shall be made to that High Court or, as the case may be, to the High Court within whose jurisdiction that District Court is situated.'
4. Before I decide the question whether this Court would have jurisdiction if there had been no application for amendment, I think it necessary to decide whether the amedment should be allowed at this stage. Two objections have been taken to the application for amendment by Mr. Gosain --one that it has not been made 'bona fide', i.e.. the application for execution was made only for the purpose of giving jurisdiction to this Court, and, secondly, that an event which has happened after the application has been filed should not be allowed to be made a ground for amendment. With regard to the first question, I see no ground to hold that it is a 'mala fide' application. If, as a matter of fact, one of the parties in a proceeding of this kind has obtained a decree, I cannot see why, in order to bring an application within the exclusive jurisdiction of this Court, he cannot take out execution for the purpose. It would not have made any difference if the petitioners had first taken out execution and then made the application, and it would be open to them now to withdraw this application with leave to bring a fresh one and then make the allegations which they now wish to make. The, question is one of costs which can always be taken into consideration.
5. In this connection another objection wastaken by Mr. Gosain and that is that the proceedings under Section 72 (a) on the ground onwhich jurisdiction is sought to be exclusively conferred must be proceedings concerning the trademark in question. The decree which is sought tobe executed has been placed on the record. It isa very comprehensive decree and it cannot besaid that it is not concerning the trade-mark inquestion, and it is not necessary at this stage togive any final adjudication upon the point, but forthe purpose of seeing whether this Court wouldhave jurisdiction or not, the decree seems to besufficiently wide.
6. Coming now to the question whether a subsequent event can be taken into consideration or not the question does not seem to be of any very great difficulty. It was held by the Federal Court in 'Lachmeswar Prasad v. Keshwar Lal', (1940) F C R 84 at p. 103, that subsequent events have to be taken into consideration. In England under Order XXVIII, Rule 1 of the Rules of the Supreme Court it has been held that a plaintiff would be allowed to amend by adding a claim for special damage when proof of special damage is essential to the cause of action, 'WEL-DON v. NEAL', (1887) 19 Q B D 394, or to add a new claim which is so germane to, and so connected with, the original cause of action, that it would be a denial of justice' if leave to add it were refused ('Attorney-General v. West Ham Corporation', (1910) 74 J P 406? C. A.). A plaintiff may add a new cause of action and the defendant a new defence. In 'Budding v. Murdoch', (1878) 1 Ch D 42 and 'Hubbuck v. Helms', (1887) 56 L J Ch 536 at .p. 539, it has been held that the Court will not refuse to allow an amendment simply because it introduces even a new case. In any case, application for execution having been made the only Court which will now have jurisdiction under Section 72 (a) is this Court and in the circumstances it seems to be necessary that amendment should be allowed. There is no question in this case of any right having accrued which by the amendment would be prejudiced. Bram-well, L.J., in 'Tildesley v. Harper, (1879) 10 Ch D 393 at pp. 396-97 has said:
'My practice has always been to give leave to amend unless I have been satisfied that the party applying was acting 'mala fide', or that, by his blunder he had done some injury to his opponent which could not be compensated for by costs or otherwise.'
Brett, M. R. in 'Clarapede v. Commercial Union Association', (1884) 32 W R. 261 at p. 263, and several other cases which are collected together under Order XXVIII, Rule l of the Rules of the Supreme Court has said:
'However negligent or careless may have been the first omission, and however late the proposed amendment, the amendment should be allowed if it can be made without injustice to the other side. There is no injustice if the other side can be compensated by costs.'
The rules which have been given by Mulla in his Civil Procedure Code under Order VI, Rule 17 also seem to be similar. Taking all the circumstances into consideration, I think a case has been made out for amendment being allowed. I, therefore, allow the amendment, but that will be on) payment of costs which I assess at Rs. 250/-.
7. I think it necessary to decide the other question also as to whether this Court has jurisdiction under Section 46 read with Section 72 of the Act even if there was no application for execution brought by the petitioner and which will give exclusive jurisdiction to this Court. In my opinion, jurisdiction there is. Section 46 of the Act provides:
'46. (1) On application in the prescribed manner by any person aggrieved to a High Court or to the Registrar, the tribunal may make such order as it may think fit for cancelling or varying the registration of a trade mark on the ground of any contravention of, or failure to observe a condition entered on the register in relation thereto.
(2) Any person aggrieved by the absence or omission from the register of any entry, or by any entry made in the register without sufficient cause, or by any entry wrongly remaining on the register, or by any error or defect in any entry in the register, may apply in the prescribed manner to a High Court or to the Registrar, and the Tribunal may make such order for making, expunging or varying the entry as it may think at.'
I have already given the relevant provisions of Section 72. In this connection reference may also be made to the provisions of Section 76 (1) of the Act:
'78 (1) Save as otherwise expressly provided in this Act, an appeal shall lie, within the period prescribed by the Central Government, from any decision of the Registrar under this Act or the rules made thereunder to the High CourS having jurisdiction: 'Provided that if any suit or other proceeding concerning the trade-mark in question is pending before a High Court or a District Court, the appeal shall be made to that High Court, or, as the case may be, to the High Court within whose jurisdiction that District Court is situated.'
Under this Section Das, J., when he was inCalcutta observed in 'India Electric Works Ltd. v. Registrar Of Trade Marks', 51 Cal W N 42 at p. 54:
'It is not quite intelligible as to what is precisely meant by the expression 'High Court having jurisdiction' in Section 16 (1) quoted above. There is no indication in the Act as to the conditions the fulfilment of which constitutes any particular High Court as 'the High Court having jurisdiction' or as to the particular jurisdiction of the High Court which is contemplated. All that I find is that 'High Court' is defined in Section 2 (d) as meaning a High Court as defined in Section 219 of the Government of India Act, 1935.'
It is true that Abdur Rahman, J., in 'Abdul Ghani Ahmed v. Registrar Of Trade Marks', AIR 1947 Lah 171, said that unless there was a Branch Registry in the Punjab an appeal from the Registrar's decision, whether given at Bombay or Calcutta, did not lie to the Lahore High Court. After considering the two judgments I prefer to follow the view taken by Das, J. The words used in Section 46 are 'a High Court' and not 'the High Court having jurisdiction.' Mr. Gosain submitted that it is a case of 'casus omissus' and that 'a High Court' should be read as if the words are 'the High Court having jurisdiction.' The words 'a High Court' are used not only in Section 46 but also in Section 72 of the Act. 'High Court' under the Act means a High Court as denned in Sub-section (1) Of Section 219 of the Government of India Act, 1935. In Section 76 the Legislature has used the words 'High Court having jurisdiction.'
8. In my opinion, it is not open to this Court to add words in Section 46 which do not exist. The language used in Sections 46 and 72 on the one hand and 76 on the other makes it quite clear that the Legislature deliberately used the words 'a High Court' and therefore this Court, in my opinion, will have jurisdiction to decide this matter. I, therefore, overrule this objection and direct that the matter may now be heard.
9. Costs of this issue will be paid by the opposite party. I assess the costs at Rs. 80/-.