JUDGMENT V.M. Sahai and R.N. Misra, JJ.
1. This appeal has been preferred by the defendant-appellant Sanjal Kumar alias Mallu against the order dated 10.9.2007 passed by Shri P.N. Tripathi, Civil Judge (Senior Division), Banda in Original Suit No. 215 of 2007, by which the ad-interim injunction application 6Ga2 moved by the plaintiff-respondent has been allowed and the appellant has been restrained from manufacturing and selling 'Deshi Gutkha' in the packing similarly to the packing of the plaintiff.
2. We have heard Shri Pankaj Bhatia, learned Counsel for the appellant and Shri Ravi Kant, senior advocate, assisted by Shri Pankaj Shukla, for the respondents.
3. It appears from the contents of the plaint that the plaintiff-respondent is dealing in Deshi Gutkha from 1999 in the name and style of 'Sahu Bharat Deshi Gutkha' in District Banda. The Gutkha is sold in the plastic packets. Originally the trade name of the industry of the plaintiff was M/s. Sahu Industries, later on it became "Prayag Industries" and at present "Shri Ganesh Traders". The defendant-appellant is also dealing in Gutkha. The defendant has prepared a design of the packing of Gutkha similarly to the design of plaintiff-respondent causing infringement of the plaintiffs trademark. Both the firms are not registered as admitted by the learned Counsels for the parties.
4. In this appeal before us the only point which has been agitated by the learned Counsel for the appellant is regarding jurisdiction. Admittedly, the suit has been filed under Section 134 of the Trade Marks Act, 1999 (hereinafter referred to as the 'Act'). The learned Counsel for the appellant has contended that the suit could not be filed in any Court inferior to the Court of District Judge but the suit was filed in the Court of Civil Judge (Senior Division), Banda, who had no jurisdiction to entertain it.
5. As agains this, the learned Counsels for the respondents has argued that the word 'District Court' having jurisdiction to try the suit appearing in the said section means the Court inferior to District Judge having jurisdiction and in such way on the basis of valuation the suit was filed in the Court of Civil Judge (Senior Division), Banda, who had jurisdiction to entertain it. He has also cited Sections 9 and 15 of the Civil Procedure Code (hereinafter called as 'Code') and have justified the institution for this suit before the Civil Judge (Senior Division), Banda according to the pecuniary jurisdiction. But we see no force in this contention because Section 9 of the Code says that the Court shall have jurisdiction to try all suits of a civil nature excepting suits of which their cognizance is either expressly or impliedly barred. Section 15 of the Code says that every suit shall be instituted in the Court of the lowest grade competent to try it. The provision of Section 15 are subject to the provision of Section 9, C.P.C. and where there is a specific provision for institution of a suit in the particular Court except that nominated in the Act, shall have jurisdiction to try the suit. For ready reference we would like to quote Section 134 of the Act as under:
Suit for infringement, etc., to be instituted before District Court.(1) 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 plaintiffs trade mark, whether registered or unregistered, (2) For the purpose of clauses (a) and (b) of Sub-section (1), a "District Court having jurisdiction" shall, notwithstanding anything contained in the Code of Civil Procedure, 1908 1 (5 of 1908) or any other law for the time being in force, include a District Court within the local limits of whose jurisdiction, at the time of the institution of the suit or other proceeding, the person instituting the suit or proceeding, or where there are more than one such persons any of them, actually and voluntarily resides or carries on business or personally works for gain.
6. A plain reading of the aforesaid section shows that the suit under this provision cannot be filed in any Court inferior to the 'District Court' having jurisdiction to try the suit. Sub-section (2) of the said section shows that the 'District Court' having jurisdiction shall be read as the Court defined in the Code of Civil Procedure, 1908. In the said Procedure Code, the word District Court has not been defined but the 'District' has been defined under Section 2 (4) as under:
district means the local limits of the jurisdiction of a principal civil court of original jurisdiction (hereinafter called as a "District Court") and includes the local limits of the ordinary original civil jurisdiction of a High Court.
7. In this definition the words "Principal civil court of original jurisdiction" have appeared which has been called as District Court. When this definition is read with the definition of "District Judge" given under Section 3 (17) of the General Clauses Act, 1897, it becomes clear that the Court of District Judge only is the Court of Principal civil court of original jurisdiction. The definition of District Judge runs as under:
Section 3(17) "District Judge" shall mean the Judge of a principal civil court of original jurisdiction, but shall not include a High Court in the exercise of its ordinary or extraordinary original civil jurisdiction.
8. In the case of I.T.I. Ltd. Naint, Auahabad v. District Judge, Allahabad and Ors. 1998 (3) AWC 2244, a controversy had arisen regarding the jurisdiction of District Judge to transfer the arbitration proceeding to the Court of Addl. District Judge. Though the facts of that case were different but the Court of 'District Judge' was discussed in details. The following observations were made:
It admits of no manner of doubt and rather, it is abundantly clear from Section 3(17) of the General Clauses Act, as well that the 'Court of District Judge' and the expression "the principal civil court of original jurisdiction in a district" are synonym. The Court of Civil Judge may also be a civil court of original jurisdiction but it would not be "the principal civil court of original jurisdiction in a district". The Court of Addl. District Judge is no doubt, a class of civil court as visualized by Section 3 of Bengal, Agra and Assam Civil Courts Act, 1887 and it exercises the same power as the District Judge in relation to the functions assigned to it by the District Judge under Section 8(2) of the aforesaid Act but that by itself would not invest it with the trapping of a principal civil court of original jurisdiction in a District.
9. In the case of Shaik Aminul Islam and Anr. v. Btdyadhar Sahu and Ors. , it was clearly observed that suit for "passing off" under the Trade and Merchandise Marks Act, 1958 is maintainable only in the Court of District Judge. In the said Act Section 105(c) was the same as this Section 134 of the Present Act. This fact is not disputed that Trade and Merchandise Marks Act, 1958 was repealed and replaced by the present Trade Marks Act, 1999. Hence, any judicial pronouncement made under the old Act is applicable with full force on the Present Act.
10. In the case of A.K. Enterprises, Agra v. Sterling Machine Tools and Anr. 2000 (2) AWC 897, this was disputed before Allahabad High Court whether the District Judge had power to transfer the proceeding instituted under Section 105 of the Trade and Merchandise Marks Act, 1958. Though this question was not directly involved in that case whether the suit was cognizable by a Court inferior to the Court of District Judge but the discussions made in that case were clear that under the said Act, only the District Judge was competent to take cognizance of the suit with the power to transfer the same to the Court of any Additional District Judge.
11. In the case of Chhedi Lal Gupta and Ors. v. Mohammad Sattar . this question was indirectly involved. The suit was filed under the Act before the Civil Judge. It was admitted that the suit was cognizable by District Judge. The Civil Judge was directed to return the plaint for presentation in the competent court as provided under Order VII, Rule 10 of the Civil Procedure Code.
12. In the case of Delhi Calendar Supplying Bureau, Sivkasi v. United Concern . also this concept was accepted that the Court of District Judge is the only Court of "principal civil court of original jurisdiction" in the district.
13. This contention of the learned Counsel for the respondents is not acceptable at all that under Section 134 of the Act. the suit for Clause (c) could be instituted in the Court inferior to the Court of District Judge. This interpretation of the learned trial court is not acceptable that in relation to Clause (a) and Clause (b) only of Section 134(1), the suit could be filed before the District Judge and for Clause (c), it could be filed before inferior court to the District Judge, having jurisdiction to try it.
14. In view of our discussions, we are of the opinion that the suit under Section 134 of the Act would only be filed before the District Judge, therefore, the impugned order passed by learned Civil Judge (Senior Division), Banda is liable to be set aside and appeal deserves to be allowed. Consequently the appeal is allowed and impugned order is set aside. Learned Civil Judge is directed to return the plaint for presentation in proper Court.