M/S. Jawahar Engineering Co. And Others v. M/S. Javahar Engineers Pvt. Ltd. .

D.K KAPUR, J.:— The respondents filed a suit against the defendants on the basis of a registered trade mark claiming a perpetual injunction, passing off and rendition of accounts, on the Original Side of this Court. The claim of the plaintiffs was that they had a registered trade mark ‘Javahar’ in respect of dieseloil engines. According to the plaintiffs the defendants had applied for registration of the trade mark ‘Jawahar’ in respect of diesel oil engines for the States of U. P., Punjab, Haryana, Bihar, Rajasthan and the Union Territories of Delhi and Chandigarh. This application No. 291514B was advertised in the Trade Mark Journal. The object of the suit was to injunct the defendants from using the trade-mark ‘Jawahar’ or a deceptively similar trade mark.

2. A preliminary issue was framed on the pleadings in the suit as follows :—

“Has this Court jurisdiction to try the suit?” On this issue, evidence was examined on the basis of which it was held that there was no evidence that there had been any sale of these diesel oil engines in Delhi. Furthermore, the defendants claimed that they had not advertised in Delhi about their product. The Court held that the jurisdiction of the Court could not be invoked on the ground of an actual sale in Delhi, but held that that there had been an advertisement in a journal called ‘Parwez’ which is published in Ludhiana. The learned single Judge held that these advertisements were not sufficient to confer jurisdiction on the Courts in Delhi. On the other hand, the Court observed that there had been an advertisement in the Trade Marks Journal published by the Registrar of Trade Marks at Delhi which conferred jurisdiction on the Courts at Delhi.

3. The defendants have appealed against the decision of the learned single Judge and a preliminary objection has been raised regarding the maintainability of the appeal. It was urged by learned counsel for the appellants that the appeal is maintainable in view of the decision of the Supreme Court in Shah Babulal Khimji v. Jayaben Kania, AIR 1981 SC 1786, which has impliedly overruled the Full Bench decision of this Court regarding the scope of an appeal under the Letters Patent or S. 10 of the Delhi High Court Act applicable to this Court. It was also brought to our notice that the Full Bench decision had in a subsequent case been expressly overruled. We agree that this is the correct position.

4. However, the judgement of the Supreme Court reaffirmed the view that prevailed earlier as per Ruldu Singh v. Sanwal Singh, ILR (1922) 3 Lah 188 : (AIR 1922 Lah 380 (2)) decided by the Lahore High Court and the view expressed by White C. J., in Tuljaram v. Alagappa, (1912) ILR 35 Mad 1, and other similar cases. There were two views possible regarding the scope of a Letters Patent appeal. In cases covered by Order 43, Rule 1 of the Code of Civil Procedure, an appeal would lie only in those cases which were covered by the rule and not in others even though there was a ‘judgement’ within the meaning of clause 10 or clause 15 of the Letters Patent, as the case may be. Or, even if the appeal was not maintainable because of S. 104 (2) of the Code, an appeal would lie under the Letters Patent. The wider view has been accepted by the Supreme Court.

5. It has been held by the Court that if there is a judgement either final or interlocutory or preliminary which finally determines the question as far as that Court is concerned, then an appeal will lie. This means that in the case of a decision on a preliminary issue, an appeal will lie under the Letters Patent or under the provisions of the Delhi High Court Act if the order complained against is a ‘judgement’ within the meaning of that word occurring in the Letters Patent or in S. 10 of the Delhi High Court Act.

6. The only question to be seen is whether the determination of the preliminary issue in this case is final as far as the Original Side of this Court is concerned.

7. It can at once be said that it is not final because if the Court has no jurisdiction, the plaint has to be returned. The power to return the plaint is contained in Order 7, Rule 10 of the Code, which reads as follows :—

10 (1). Return of plaint.- Subject to the provisions of R. 10-A, the plaint shall at any stage of the suit be returned to be presented to the Court in which the suit should have been instituted.”

This rule shows that the plaint can be returned at any stage of the suit, which means that the decision to the effect that the Court has jurisdiction to entertain the plaint is of a prima facie nature and not a final decision. It would still be open to the Court to hold that the plaint is to be returned for presentation to the proper Court and this power is available with the trial Court till the very end of the suit.

8. Reliance was placed on the following passage in the judgement of the Supreme Court aforementioned :—

“A preliminary judgement - This kind of a judgment may take two forms - (a) where the trial Judge by an order disposes the suit without going into the merits of the suit but only on a preliminary objection raised by the defendant or the party opposing on the ground that the suit is not maintainable. Here also, as the suit is finally decided one way or the other, the order passed by the trail Judge, would be a judgement finally deciding the cause so far as the trial Judge is concerned and, therefore, appealable to the larger Bench. (b) Another shape which a preliminary judgment may take is that where the trial Judge passes an order after hearing the preliminary objections raised by the defendant relating to the maintainability of the suit, e.g, bar of jurisdiction, res judicata, a manifest defect in the suit, absence of notice under S. 80 and the like, and these objections are decided by the trail Judge against the defendant, the suit is not terminated but continues and has to the tried on merits but the order of the trial Judge rejecting the objections doubtless adversely affects a valuable right of the defendant who, if his objections are valid, is entitled to get the suit dismissed on preliminary grounds. Thus, such an order even though it keeps the suit alive, undoubtedly decides an important aspect of the trial which affectsa vital right of the defendant and must, therefore, be construed to be a judgment so as to be appealable to a larger Bench.”

9. This passage does not apply for the simple reason that even if the objection regarding jurisdiction succeeded, the suit would not be dismissed but the plaint would be returned for re-presentation to the proper Court, and furthermore as Order 7, Rule 10 shows, this power can be exercised at any time.

10. There is another ground for holding that the Court has jurisdiction. S. 20 of the Code of Civil Procedure shows that a suit like the present can be filed wherever the cause of action wholly or partly arises. The plaintiff has prayed for an injunction regarding a threatened breach of a registered trade mark. The learned single Judge held that the Delhi Court does not have jurisdiction on the ground of any sale having been made in Delhi, but does have jurisdiction on account of the advertisement having appeared in the Trade Marks Journal. The real point which gives the Court jurisdiction is not the place where the advertisement has appeared, but the fact that the trade mark is sought for sale in Delhi amongst other places. Furthermore, when an injunction is sought, it is not necessary that the threat should have become a reality before the injunction and it can even be sought for a threat that is still to materialise.

11. An injunction being prohibitive in nature is intended to prevent some thing that is likely to happen. Once the plaintiffs have learnt that the defendants have applied for registration of trade mark in Delhi, they can claim an injunction to prevent any sale of the infringing product in Delhi. In this sense, the Court will have jurisdiction whether any sale in Delhi has taken place or not. In any case, as already stated, the decision is of a preliminary nature, once the exact scope of what the defendants intend to do is known, it is open to the Court to return the plaint. In that sense, it is not a final decision and is not open to appeal at the preliminary stage being not a final adjudication.

12. For these reasons, we would accept the preliminary objection and dismiss the appeal with the observations that it will be open to the plaintiffs or the defendants to agitate the question of jurisdiction along with any other claim that they may have after the suit has been decided, and to will also be open to the Court trying the suit to return the plaint if it is subsequently found that this Court has no jurisdiction as provided in Order 7, Rule 10 of the Code of Civil Procedure. Parties will bear their own costs.

Order accordingly.