(1) This is an appeal against the judgment of Subrahmanyam, J., declining to entertain an application filed by the appellant for rectification of the Trade Marks Register by deleting the registered trade mark Nos. B. 1108, B. 62078 and B. 62080 form the Register of Trade Marks. The appeal involves the determination of the question whether this Court has jurisdiction to entertain the application. The first respondent, a public limited company, does business in piecegoods, cotton and artificial silk. Its office is at Bombay. On 10-6-1942 the first respondent applied to the Registrar of Trade Marks for registration of a design comprising the word "Chamundi". The said mark was registered in relation to the piecegoods of all kinds sold by the first respondent.

Four months thereafter it made two further applications for registration of two further marks containing the picture of Sri Chamundeswari in respect of goods known as tissue piecegoods, bedsheets, towels etc. They were duly registered by the Registrar of Trade Marks under S. 16(1) of the Trade Marks Act, 1940. The appellant, a private limited company doing business in the manufacture and sale of handloom sarees at Kuttalam in Tanjore District applied on 30-12-1949 to the Registrar of Trade Marks for registration of a label in relation to goods sold by him. That label also contained a distinctive design including therein a picture of Sri Chamundeswari. The application met with opposition from the first respondent.

The appellant thereupon filed an appreciation to these court under S. 46(2) of the Trade Marks Act for rectification of the Trade Marks Register in the manner stated above. The Trade Marks Act, 1940 was then in force. That enactment has been repealed since and the provisions thereof are re-enacted in the Trade and Merchandise Marks Act, (Act XLIII of 1958). Under S. 136 of the latter enactment, the Indian Trade Act, 1940 stands repealed. But sub-sec (4) thereof states that notwithstanding such repeal, any legal proceeding pending in any court at the commencement of Act XLIII of 1958 may be continued in that court as if the Act had not been passed. If therefore this court had jurisdiction to entertain the appellant's application for rectification under the Trade Marks Act, 1940 relief could be granted to him notwithstanding the provisions of the Trade and Merchandise Marks Act, 1958. Subrahmanyam, J., held that this court would have no jurisdiction to entertain the application of the appellant under S. 46 of the Trade Marks Act, 1940, as the subject-matter of the petition, namely, the removal of the trade mark registered on an application by a citizen of Bombay or Mysore had no relation to the State of Madras over which alone this court would have jurisdiction. The appellant challenges the correctness to the decision in this appeal.

(2) Section 37(1) of the Trade Marks Act, 1940 provokes that a registered trade mark may be taken off the register trade mark may be taken off the register in respect of any of the goods in respect of any of the goods in respect of which it is registered on the application of any person aggrieved, to a High Court or to the Registrar. The grounds on which such a relief would be granted process on the principle that the registered trade mark was not properly registrable. Sec. 46(1) states :

"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 canceling 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."

(Sub-section (2) to(5) omitted as unnecessary).

(3) This section provides the machinery for the rectification of the Trade Marks Register at the instance of a person aggrieved, that is a person other than the registered owner of the impugned trade mark. Option is given to the person aggrieved to file the application either before the Registrar or any High Court. Section 72 states :

"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 as the case may be, to the High Court within whose jurisdiction that District Court is situated :

(b) If in any order case the application is made to the Registrar the Registrar may, if he thinks fit, refer the application at any stage of the proceedings to a High Court."

Section 72 does not in terms provide for a case as to which the High Courts in India would have jurisdiction to entertain an application for example one under S. 46, if there were no proceedings concerning the trade mark pending in that court or in any court subordinate thereto. It is contended on behalf of the appellant that as S. 46(1) invests a power in a "High Court" to rectify the register, it would be competent to any High Court to rectify the Register regardless of the question as to where the Trade Mark Register is maintained or where the registered owner of the mark is carrying on business. In our opinion, S. 46(1) cannot be construed as providing the jurisdiction of any particular High Court in regard to the rectification of a trade mark with reference to the subject matter of the petition. The section provides only that "a High Court" as contrasted with any other subordinate or other court, would have jurisdiction to rectify the Register of Trade Mark.

In other words, it relates to the competency of a court amongst hierarchy of courts and not to its jurisdiction over a particular subject-matter. Section 72 provides no doubt for the jurisdiction. But unfortunately there is no specific provision in it as to the territorial jurisdiction of the various High Courts. This defect has been rectified in the Trade and Merchandise Marks Act, 1958 which, in defining "High Court", in S. 2(h) states that it means the High Court having jurisdiction under S. 3. Sec. 3 states that the jurisdiction of the High Court is to be determined with reference to the Trade Marks office within whose territorial limits the place of business of the Proprietor of the mark is situate. But that provision will not apply to a case like the present which arises under the Trade Marks Act, 1940. The question of territorial jurisdiction of the High Court has therefore to be decided on general principles.

(4) Section 46(1) gives jurisdiction to a High Court. "High Court" has been defined by S. 2(1)(d) of the Act, as amended by the Adaptation of Laws (No. 1) Order, 1956, as "in relation to a Part A state or a Part B State, the High Court for that State". Therefore, reading Ss. 37, 46 and 72 in the light of the definition of the term "High Court", it would implicitly follow that the subject matter should be situate within the State over which the High Court has jurisdiction. To hold otherwise would lead to considerable inconvenience. For example, if a registered proprietor of a trade mark is carrying on business within the State of Madras, it would undoubtedly work serious injustice to him if a powerful opponent of his were of initiate proceedings in the Punjab High Court and put him to the trouble of expenses and of travelling long distances to defend the application for rectification against him which might be substantial or might even be unsubstantial.

In our opinion, the question of jurisdiction of the High Court to entertain a petition for rectification has first to be decided having regard to the nature of the proceedings. Now, a registered Trade Mark under the Act confers a right of property in the person in whose four the mark is registered. That ownership arises by virtue of registration. If the registration of a trade mark is impugned under the rectification proceedings, the grievance is either against the Act of registration or against the person who has become the owner thereof by virtue of such registration. Any application impugning the Mark, and thereby the property rights of the registered owner, should either be filed at the place where the registration is effected or at the place where the owner regimes or carries on his business. Apart from these two places, there cannot be any other place in which the grounds for a petition for rectification can be said to arise. On this principle, an application for rectification can be filed only in the High Court within whose jurisdiction the Trade Marks Register is situate or that High Court within whose jurisdiction the owner of the Mark resides or carries on business.

But Subrahmanyam, J, however has expressed the opinion that the High Court within whose jurisdiction the goods bearing the imagined trade mark were sold would also have jurisdiction. We are by no means sure that this can be accepted as correct. It may so happen that the goods bearing the impugned trade mark might be sold throughout India. The fact that they were so sold cannot obviously be taken as conferring jurisdiction the goods were sold. It is however, unnecessary to express any opinion finally on that question now as it is not the appellant's case that the goods of the first respondent were sold under the cover of the impugned trade mark within the jurisdiction of the Madras High Court. Admittedly, neither the office of the Registrar of Trade Mark nor the place of the first respondent's business is situate within the jurisdiction of this Court.

(5) Mr. Nagaswami who appears for the appellant places considerable reliance on the unreported decision of Kapur, J., of the Punjab High Court in Watkins Mayor and CO., v. Registrar of Trade Marks, Bombay, C. M. No. 870 of 1951 (since ). That was a case where there was a legal proceeding pending within the jurisdiction of the Punjab High Court. That Court would have jurisdiction to entertain an application under section 46 by virtue of section 72. But the learned Judge however considered it necessary to decide also as to whether the Court had jurisdiction under section 46 even if there was no proceeding pending within the jurisdiction of the Punjab High Court. The registered owner of the trade mark in that case was in Bombay and the registration itself was made at that place. The learned Judge held that the words "a High Court" in section 46 are very wide and would mean any High Court; no reference was however made to the amended definition of "High Court" in section 2(1)(d) of the Act by virtue of the Adaptation of laws (NO. 1) Order, 1956. With great respect we are unable to agree with the view expressed in that case. In expressing the opinion (which, as we indicated earlier was by way of obiter) the learned Judge followed the decision of Das, J., in India Electric Works Ltd v. Registrar of Trade Marks 51 Cal WN 42 : (AIR 1947 Cal 49) in preference to the view expressed by Abdul Rahman, J, in Abdul Ghani Ahmad v. Registrar of Trade Mark, AIR 1947 Lah 171. Both the case related to an appeal under section 76. It is not necessary for us to consider in this case whether appeals against the orders of the Registrar of Trade Marks could be filed in any of the High Courts or only in that High Court which has jurisdiction over the Registrar, who passed the impugned order. Different consideration may arise in the case of appeal.

(6) Mr. Nagaswami them relied on a decision of Ramaswami, J., of this Court in O. P. No. 362 of 1953, which was later affirmed on appeal in O. S. A. No. 12 of 1955. In that case an application under section 46 was filed on the original side of this Court to rectify the Trade Marks Register kept at Bombay. But the owner of the impugned mark was living and carrying on business in Tiruchirapalli district within the jurisdiction of this High Court and no question arose in that case as to whether any Court other than the Court which has jurisdiction over the place where the registered owner was carrying on business could entertain the application.

(7) For the reasons already stated, we agree with Subramanyam, J., that the application for rectification of Register of Trade Marks under section 46 cannot be entertained by this Court. The appeal fails and is dismissed. No order as to costs.

(8) Appeal dismissed.