JUDGMENT K.B. Asthana, J.
1. This is an appeal by the defendants against an order of the Additional Civil Judge, Mirzapur, returning the plaint at the instance of the plaintiff to be presented to the Court of the District Judge of Allahabad.
2. The plaintiff had filed a suit against the defendants for an injunction restraining them from selling Biris under a particular kind of trade mark and had claimed certain amount of damages. The defendants had raised an objection in the Court of the Civil Judge that the suit being one for in fringement of trade mark was not cognisable by the Court of the Additional Civil Judge. Mirzapuri but could only be tried in the Court of the District;
Judge of Allahabad under Section 73 of the Indian Trade Marks Act. The learned Additional Civil Judge decided the issue of jurisdiction as a preliminary issue and having come to a conclusion that the action was an action for 'passing off as known, under the law and practice of trade-mark held that it was cognisable by him. Against this decision of the learned Civil Judge a writ under Article 226 of the Constitution was riled by the defendants in the High Court. The learned Single Judge of the High Court who heard the writ holding that the action was one for infringement of trade mark and under Section 73 of the Indian Trade Marks Act would lie in the Court of the District Judge at Allahabad, quashed the decision of the learned Civil Judge by a writ of certiorari and further issued a writ of prohibition to the Court of the Additional Civil Judge that it shall not proceed with the trial of the suit.
After the decision of the writ the plaintiff made an application before the Court of the Additional Civil Judge praying that in view of the judgment of the High Court in the writ the plaint be returned. to him for presentation to the Court of the District Judge at Allahabad. The learned Additional Civil Judge by his order D/- 3-3-59 returned the plaint to the plaintiff for presentation to the proper Court. It is against this order of the learned Civil Judge that the present appeal has been filed.
3. Mr. R. C. Ghatak, learned counsel for the appellants has submitted that the order of the Court below returning the plaint was against the directions of the High Court given in the writ which were to the effect that the Court shall not proceed with the trial of the suit. It is submitted that the Civil Judge himself not having held that the had no jurisdiction to try the suit but in its writ jurisdiction the High Court held that and issued a writ of prohibition but gave no direction that the plaint be returned, the learned Civil Judge had no jurisdiction to exercise his power under Rule 10 of Order 7, C. P. C. If I understand the contention of the learned counsel for the appellants correctly it amounts to that for all practical purposes after the decision of the writ by the High Court and the direction contained therein the plaint of the plaintiff became a dead letter and nothing further could be done in respect of the same. I am unable to agree with these contentions and submissions of the learned counsel. The prohibition contained in the writ issued by the High Court directed that the Civil Judge shall not proceed with the trial of the suit, there was no direction in the order that the Civil Judge even if he had the power under the law shall not return the plaint for presentation to the proper Court.
4. I have perused the order of the learned Single Judge passed in the writ and I find that the whole argument which was advanced on behalf of the petitioners in the writ was that the plaintiffs plaint disclosed a cause of action which was covered by Section 73 of the Indian Trade Marks Act and the plaint was not cognisable by the Court of the Civil Judge at Mirzapur but by the Court of the District Judge at Allahabad. This argument found favour with the learned Single Judge. I cannot in those circumstances and in the context in which the directions contained in the writ of prohibition were issued hold that the learned Civil Judge in whose Court the plaint was filed had no power to return it under Order 7, Rule 10, C P. C.
5. As I understand the provisions of Rule 10 of Order 7, C. P. C. it appears to me that they confer upon the Court a power that if it is found that it plaint was wrongly filed in that particular Court and which could be properly presented in another Court then that Court could return the plaint to the plaintiff for presentation to the proper Court. The trial of the suit can only commence after the institution of the plaint. The law contemplates that the institution of a plaint must be a valid institution, namely, that the plaint is cognizable by the Court in which it has been presented. The trial can only be commenced if the plaint has been properly presented to the Court who has jurisdiction, to sieze of the matter. If the Court finds that it has no jurisdiction to sieze of the matter then it cannot proceed with the trial. It follows, therefore, that when a Court merely returns a plaint which is not cognisable by it for presentation to the proper Court, it does not try a suit because the suit could not be tried unless the plaint can properly be entertained by it in law.
I find no force in the submission of Mr. Ghatak that when the learned Civil Judge ordered the return of the plaint he was in fact proceeding with the trial of the suit. That it does not appear to me that the order appealed against was an order which was against the directions contained in the writ of prohibition issued by the High Court. For the same reason I do not find that those directions in any way prohibited the learned Civil Judge from exercising his powers under Rule 10 of Order 7, C. P. C. which was the power vested in him under the law, as no writ of prohibition can be issued to any Court or authority restraining it from exercising a power or jurisdiction which is conferred upon it by law.
6. Another ground which has been urged is that one of the defendants Baijnath had died on 20-6-1958 before the order for returning the plaint was passed and the suit had abated. This is a ground which in my judgment, is misconceived aa far as the present appeal is concerned. What would be the fate of the suit on account of the death of Baijnath on 20-6-1958 will be a question which can be agitated in the suit before the learned District Judge in whose Court the plaint has already been presented as stated by the counsel for the parties.
7. This appeal has no force and is dismissed with costs. The record of the case shall be sent down to the Court of the District Judge, Allahabad forthwith.