CHHEDI LAL GUPTA Vs. MOHAMMAD SATTAR

JUDGEMENT

(1.) This is an appeal by the defendants against an order of the Additional Civil Judge, Mirzapur, returning the plaint at the instance of the plaintiff to be presented to the Court of the District Judge of Allahabad.

(2.) The plaintiff had filed a suit against the defendants for an injunction restraining them from selling Biris under a particular kind of trade mark and had claimed certain amount of damages. The defendants had raised an objection in the Court of the Civil Judge that the suit being one for in fringement of trade mark was not cognisable by the Court of the Additional Civil Judge. Mirzapuri but could only be tried in the Court of the District; Judge of Allahabad under Section 73 of the Indian Trade Marks Act. The learned Additional Civil Judge decided the issue of jurisdiction as a preliminary issue and having come to a conclusion that the action was an action for 'passing off as known, under the law and practice of trade-mark held that it was cognisable by him. Against this decision of the learned Civil Judge a writ under Article 226 of the Constitution was riled by the defendants in the High Court. The learned Single Judge of the High Court who heard the writ holding that the action was one for infringement of trade mark and under Section 73 of the Indian Trade Marks Act would lie in the Court of the District Judge at Allahabad, quashed the decision of the learned Civil Judge by a writ of certiorari and further issued a writ of prohibition to the Court of the Additional Civil Judge that it shall not proceed with the trial of the suit. After the decision of the writ the plaintiff made an application before the Court of the Additional Civil Judge praying that in view of the judgment of the High Court in the writ the plaint be returned. to him for presentation to the Court of the District Judge at Allahabad. The learned Additional Civil Judge by his order D/- 3-3-59 returned the plaint to the plaintiff for presentation to the proper Court. It is against this order of the learned Civil Judge that the present appeal has been filed.

(3.) Mr. R. C. Ghatak, learned counsel for the appellants has submitted that the order of the Court below returning the plaint was against the directions of the High Court given in the writ which were to the effect that the Court shall not proceed with the trial of the suit. It is submitted that the Civil Judge himself not having held that the had no jurisdiction to try the suit but in its writ jurisdiction the High Court held that and issued a writ of prohibition but gave no direction that the plaint be returned, the learned Civil Judge had no jurisdiction to exercise his power under Rule 10 of Order 7, C. P. C. If I understand the contention of the learned counsel for the appellants correctly it amounts to that for all practical purposes after the decision of the writ by the High Court and the direction contained therein the plaint of the plaintiff became a dead letter and nothing further could be done in respect of the same. I am unable to agree with these contentions and submissions of the learned counsel. The prohibition contained in the writ issued by the High Court directed that the Civil Judge shall not proceed with the trial of the suit, there was no direction in the order that the Civil Judge even if he had the power under the law shall not return the plaint for presentation to the proper Court.