MARICO INDUSTRIES LIMITED Vs. SARFARAJ TRADING COMPANY

JUDGEMENT

(1.) THIS appeal is directed against the order of the learned Single Judge refusing to grant leave under Clause 14 of the Letters Patent. The suit, out of which this appeal has arisen, was filed by the appellant complaining of violation of copyright under Copyright Act, 1957 as also infringement of trademark and passing of. The appellant have their office at Mumbai and they carry on business within the jurisdiction of this Court. Respondent Nos. 1 to 3 are carrying business at Hyderabad and respondent No. 4 who is a printer is carrying business at Secunderabad. It is not in dispute that in regard to violation of copyright which the appellants/plaintiffs have alleged in the plaint, this Court has the jurisdiction in view of the provisions of section 62 (2) of the Copyright Act which, unlike other enactments, gives right to a plaintiff to institute the suit within the local limits of whose jurisdiction, at the time of the institution of the suit, the plaintiff carries on business or personally works for gain.

(2.) IN view of the claims in the plaint about the infringement of trademark and passing off the appellant filed an application under Clause 14 of the Letters Patent seeking leave from the Court to combine the cause of action relating to copyright and the cause of action relating to infringement and passing off. The leave has been declined by the learned Single Judge on the ground that if the leave is granted it would cause undue hardship to the respondents.

(3.) MR. Divekar, learned Counsel appearing for respondents has raised a preliminary objection to the maintainability of the appeal on the ground that the impugned order cannot be said to be a judgment within the meaning of Clause 15 and therefore the appeal is not maintainable. He has relied upon the decision of the Supreme Court in (Asrumati Debi v. Kumar Rupendra Deb Raikot), A. I. R 1953 S. C. 198. In that case only question involved was whether the order of transfer under Clause 13 of the Letters Patent satisfies the tests of a judgment as mentioned in Clause 15 of the Letters Patent. The Supreme Court while referring to Calcutta and Madras judgments refrained from giving any particular decision except that the Court held that the mere order of transfer under Clause 13 of the Letters Patent could not be said to be a judgment and was therefore not appealable. The Court pointed out that the order neither affected the merits of the controversy nor did it terminate or dispose of the suit. In this connection the Court observed as follows :