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PETITIONER: RAJA SOAP FACTORY AND OTHERS

       Vs.

RESPONDENT: S.   P. SHANTHARAJ AND OTHERS

DATE OF JUDGMENT: 20/01/1965

BENCH: SHAH, J.C. BENCH: SHAH, J.C. WANCHOO, K.N. HIDAYATULLAH, M. SIKRI, S.M.

CITATION:  1965 AIR 1449            1965 SCR  (2) 800  CITATOR INFO :  R          1988 SC1531  (152)  D          1991 SC2176  (30)

ACT: High Court of Mysore Act, 1962 (Mysore Act 5 of  1962)-Trade and  Merchandise Marks Act, 1958 (Act 43 of 1958),  105-Code of  Civil Procedure, 1908 (Act 5 of 1908), ss. 24,  151-High Court--Passing  off  Action,   institution-Entertainability- Exercise of original jurisdiction-Jurisdiction, Meaning of.

HEADNOTE: The respondents instituted a passing off action in the  High Court  of Mysore for a declaration that they were  exclusive owners  of  a  certain  trade  mark  and  for  a   permanent injunction restraining the appellants from passing off their goods  as that of respondents.  By s. 105 of the  Trade  and Merchandise Mark Act such an action may be instituted in any court  not inferior to a District Court having  jurisdiction to  try the suit.  It appears that on the day the  suit  was instituted the District Court was  closed  and there was  no Judge functioning in the District Court who was   on    duty and competent to exercise the powers of the District  Court. The  High Court entertained the plaint and granted temporary injunction. In appeal by special leave : HELD:(i)  The  High Court of Mysore is by  its  constitution primarily  a court exercising appellate jurisdiction; it  is competent  to exercise original jurisdiction only  in  those matters in respect of which by special  Acts  it  has   been specifically   invested  with  jurisdiction.  It  would   be competent to exercise original jurisdiction under s. 105  of the   Act  if  it  was  invested  with   ordinary   original jurisdiction of a District Court and not otherwise. [802  D- F]      As a Court of appeal it undoubtedly stands at the  apex within  the  State, but on that account it  does  not  stand invested with original jurisdiction in matters not expressly declared within its cognizance. [802 H]      (ii)  Power under s. 24 of the Code of Civil  Procedure to  try  and dispose of a proceeding after transfer  from  a court  lawfully  seized of it does not involve  a  power  to

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entertain  a  proceeding which is not otherwise  within  the cognizance of the High Court. [803 C-D]      (iii)  Section  151  of the  Code  of  Civil  Procedure preserves the inherent powers of the Court, but it does  not authorise the High Court to invest itself with  jurisdiction where the jurisdiction is not conferred by law. [803 D-E]      (iv) By "jurisdiction" is meant the extent of the power which is conferred upon the court by its constitution to try a  proceeding : its exercise cannot be enlarged  because  an extraordinary  situation "requires"  the court  to  exercise it. [803 H-804 A]

JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No. 771 of 1964. Appeal by special leave from the judgment and order dated  H May 29, 1964, of the Mysore High Court in Civil Petition No. 90 of 1964. 801 S.   S. Khanduja and Ganpat Rai, for the appellants. B.   R.  L.  Iyengar,  S.  K. Mehta and  K.  L.  Mehta,  for respondents Nos.  1 to 7. The Judgment of the Court was delivered by Shah  J. On May 5, 1964 the  respondents-hereinafter  called ’the  plaintiffs’-instituted in the High Court of Mysore  an action  in  the nature of a passing off action  against  the appellants-hereinafter   called   ’the   defendants--for   a declaration  that  they "are exclusive owners of  the  trade mark  consisting of the letters R.S.F. and No. 806",  for  a permanent injunction restraining the defendants from passing off  their washing soap as the goods of the  plaintiffs  and for incidental reliefs. By s. 105 of the Trade and Merchandise Marks Act 43 of  1958 a passing off action whether the trade mark is registered or unregistered may be instituted in any court not inferior  to a  District Court having jurisdiction to try the  suit.   It appears  that on May 5, 1964 the District Court  of  Mysore, within  the territorial limits of which the cause of  action was  alleged  to  have arisen, was  closed  for  the  summer vacation, and it is common ground that on that day there was no  Judge functioning in the District Court who was on  duty and competent to exercise the powers of the District  Court. At the request of the plaintiffs the High Court  entertained the  plaint and also an application for  interim  injunction restraining  "the defendants their agents or  servants  from using the trade mark R.S.F. on washing soap manufactured  by them  and  from  selling  washing  soap  bearing  the   said offending mark pending disposal of the case." By order dated May 29, 1964 the High Court granted the temporary injunction in terms of the prayer in the application. In   this  appeal  with  special  leave,  counsel  for   the defendants argues that the High Court had no jurisdiction to entertain the action instituted by the plaintiffs and had no power to make an order issuing a temporary injunction.   The action,  as  framed,  could properly be  instituted  in  the District  Court.   The expression "District  Court"  has  by virtue of s. 2(e) of Act 43 of 1958 the meaning assigned  to that  expression  in  the Code  of  Civil  Procedure,  1908. Section 2(4) of the Code defines a "district" as meaning the local limits of the jurisdiction of a principal civil court- called  the District Court-and includes the local limits  of the  ordinary original civil jurisdiction of a  High  Court. If therefore a High Court is 802

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possessed of ordinary original civil jurisdiction, it would, when  exercising  that  jurisdiction be  included,  for  the purpose  of  Act  43 of 1958, in  the  expression  "District Court". Exercise  of  jurisdiction by the High Court  of  Mysore  is governed  by  Mysore  Act 5 of 1962.  The Act  is  purely  a regulatory  Act  enacted  for regulating  the  business  and exercise of the powers of the High Court in relation to  the administration  of justice : it does not purport  to  confer upon the High Court any jurisdiction original or  appellate. It  is true that by s. 12 of the Mysore High Court Act 1  of 1884  enacted  by  the  Maharaja  of  Mysore  to  amend  the constitution of the High Court of Mysore, and to provide for the administration of justice by that Court, the  Government of Mysore was authorised by notification to invest the  High Court  with  ordinary  original  civil  jurisdiction  of   a District  Court in all suits of a civil  nature  exercisable within such local limits as the Government may from time  to time  declare and appoint in that behalf.  But s. 12 of  the Mysore  Act 1 of 1884 has been repealed by s. 14  of  Mysore Act 5 of 1962. The High Court of Mysore is by its constitution primarily  a court exercising appellate jurisdiction : it is competent to exercise  original  jurisdiction only in  those  matters  in respect  of which by special Acts it has  been  specifically invested with jurisdiction.  The High Court is competent  to exercise original jurisdiction under s. 105 of the Trade and Merchandise Marks Act 43 of 1958 if it is invested with  the ordinary  original civil jurisdiction of a  District  Court, and  not otherwise, and the High Court of Mysore  not  being invested by any statute of under its constitution with  that jurisdiction  was  incompetent to entertain  a  passing  off action. But  it was urged that in a State the High Court is  at  the apex of the hierarchy of civil courts and has all the powers which  the  subordinate  courts  may  exercise,  and  it  is competent  to entertain all actions as a court  of  original jurisdiction  which may lie in any court in the State.   For this   exalted   claim,   there  is  no   warrant   in   our jurisprudence.  Jurisdiction of a Court means the extent  of the  authority of a Court to administer  justice  prescribed with  reference to the subject-matter, pecuniary  value  and local  limits.   Barring  cases  in  which  jurisdiction  is expressly  conferred upon it by special statutes,  e.g.  the Companies Act; the Banking Companies Act, the High Court  of Mysore  exercises appellate jurisdiction alone.  As a  Court of  Appeal  it  undoubtedly stands at the  apex  within  the State,  but on that account it does not stand invested  with original  jurisdiction  in matters  not  expressly  declared within its cognizance. 803 Section  24 of the Code of Civil Procedure on which  counsel for  the  plaintiffs  relied  lends  no  assistance  to  his argument.   Among the powers conferred upon a High Court  by s. 24 Code of Civil Procedure, there is enumerated the power to  withdraw  any suit, appeal or other  proceeding  in  any Court subordinate to it, and to try or dispose of the same : [S. 24(1) (b) (i)].  But jurisdiction to try a suit,  appeal or proceeding by a High Court under the power reserved by s. 24(1) (b) (i) arises only if the suit, appeal or  proceeding is  properly instituted in a court subordinate to  the  High Court, and the suit, appeal or proceeding is in exercise  of the power of the High Court transferred to it.  Exercise  of this  jurisdiction is conditioned by the lawful  institution of  the  proceeding  in a  subordinate  court  of  competent

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jurisdiction, and transfer thereof to the High Court.  Power to  try  and dispose of a proceeding after transfer  from  a court  lawfully  seized of it does not involve  a  power  to entertain  a  proceeding which is not otherwise  within  the cognizance of the High Court. Section 151 of the Code of Civil Procedure preserves the in- herent  power of the Court as may be necessary for the  ends of justice or to prevent abuse of the process of the  Court. That  power  may be exercised where there  is  a  proceeding lawfully  before  the  High  Court :  it  does  not  however authorise the High Court to invest itself with  jurisdiction where it is not conferred by law. Reliance was sought to be placed upon the summary of  a judgment  dated June 6, 1962 in a case decided  by  Narayana Pai, J : Kaverappa v. Narayanaswamy, which is found printed under  the heading "Short Notes of Recent Decision"  in  the Mysore Law Journal (1962) at p. 1. The learned Judge  is reported  to have observed that s. 24 of the Code  of  Civil Procedure  "read  along with s. 151 which preserves  to  the High Court all inherent powers to make such orders as may be necessary  for  ends  of justice  necessarily  implies  that whenever  an  extraordinary situation so  requires,  a  High Court may confer original jurisdiction upon itself to do  or protect  ends  of  justice". It does  not  appear  that  the judgment is reported in any series of reports-authorised  or unauthorised,  and we have not been supplied with a copy  of the original judgment. But if the learned Judge, as reported in the summary of the judgment, was of the opinion that  the High  Court  is competent to assume to  itself  jurisdiction Which  it  does  not otherwise possess,  merely  because  an "extraordinary  situation" has arisen, with respect  to  the learned  Judge,  we are unable to approve of that  view.  By "jurisdiction"  is  meant the extent of the power  Which  is conferred  upon  the  Court by its  constitution  to  try  a proceeding; its exercise 804 cannot  be enlarged because what the learned Judge calls  an extraordinary situation "requires" the Court to exercise it. The appeal must therefore be allowed.  Temporary  injunction granted  by  the  High Court is vacated and  the  plaint  is ordered to be returned for presentation to the proper Court. As before the High Court, no objection was raised about  the maintainability   of  the  suit  or  the   application   for injunction, we direct the parties to bear their own costs. Appeal allowed. 805