Name of the case – Jawahar Engineering Company v/s  Jawahar Engineering Private Limited
First Appeal (OS) Appeal No. 117 of 1979
Decided On,
16 February 1983
At,
High Court of Delhi
By, THE HONOURABLE MR. JUSTICE D.K. KAPUR & THE HONOURABLE MR. JUSTICE S. BANGANATHAN

For the Appearing Parties: Anup Singh, H.P. Singh, M.M. Singh, N.K.Anand, Parvin Anand, Advocates

Published In

1983 (24) DLT 129, 1984 AIR (Del) 166

ISSUE- 

The concern issue of the case is ,Whether the Delhi High Court had territorial jurisdiction to entertain a suit for injunction and passing off based on a registered trademark, though actual sales or advertisements of defendant’s goods in Delhi are not present, but there was only publication in the Trade Marks Journal.

RULE- 

Under order No. 7 and Rule No. 10 of  the CPC , a plainant may be Rejected at any stage of time of their Proceedings When the court , suppose to find that its has No jurisdiction to hear the suit. It Comes under the section 20 of the  CPC,a Civil Action can be filed in a court where the defendant is,or where the cause of Action has been arisen , fully or in part.Accordingly to the Trademark Act , a Plaintiff can also apply for a injunction Not only Againist an Actual Infringement But also against a challenged infringement even a prior to any sale or a commercial use of the trademark .The supreme court in shah Babulal Khimji v. Jayaben D kania(AIR 1981 SC 1786) have been explained that an order on a primary point can be appealed under the letters patent , if it is “Judgment”that is a final adjudication of a right of the substance. In Addition , the letters patent and Delhi High court Act Allow an Appeal of such orders if theydirectly decide a material part of the case,when a valuable right of a party is Neglected .

ANALYSIS-

The plaintiff had instituted an action for relief against infringement and passing off of their registered mark “Jawahar” for diesel engines. The defendant had sought registration of the same mark for use in several states, including Delhi. But no proof of actual sales or advertisements by the defendant in Delhi, except a journal advertisement made outside the territory, existed. The Single Judge, learned, at first held that jurisdiction had been made out since the mark had been published in the Trade Marks Journal, which is published in Delhi. In appeal, the Division Bench dissented, holding that publication in the Trade Marks Journal did not by itself necessarily make out territorial jurisdiction. The Court underlined that the question of jurisdiction, at this initial stage, was not final because even if the Court did not have jurisdiction, the right thing would be to send the Plaint back under Order 7 Rule 10 of the Civil Procedure Code, but not dismiss the suit. The Court also held that jurisdiction may be reconsidered at a later point of time in case factual developments, including actual sales in Delhi, arise. Hence, the challenged order was not a “judgment” for purposes of the Letters Patent, and therefore was not appealable at this stage.

CONCLUSION- 

The Court ruled that the jurisdictional order was not final, and therefore the appeal was not maintainable at this stage. The appeal was rejected as premature. But liberty was granted to both parties to re-agitate the question of jurisdiction later in the course of trial, and jurisdiction was left with the trial court to send back the plaint if lack of jurisdiction was made apparent. No costs were given.