SHAIK AMINUL ISLAM Vs. BIDYADHAR SAHU

JUDGEMENT

(1.) PETITIONERS and opposite party No. 3 are the plaintiffs. Plaintiff No. 1 claims to be the proprietor of the Orissa Kohinoor Press and is publishing two almanacs known as Asali Pathanisamanta Nutan Panjika and Orissa Kohinoor Press Panjika the case of the plaintiffs is that these almanacs are printed and published on the basis of calculations furnished by Ganaks on annual basis and that the almanacs sell mainly upon the goodwill and the name of the calculator. Harihar Khadiratna (petitioner No. 2) and Dayanidhi Khadiratna (opposite party No. 21 had been jointly furnishing such calculations to plaintiff No. 1. In 1964 a dispute arose between them and the calculations for this year 1965-66 for the two almanacs of plaintiff No. 1 were supplied by petitioner No. 2 alone. The defendants (opposite parties 1 and 2) published two Panjikas adopting the names as Asali Samanata Panjika and Orissa Jatiya Panjika Ba Orissa Kohinoor Panjika. It was further averred by the plaintiffs that the defendants adopted these names so that their almanacs would pass off for the almanacs of plaintiff No. 1. On the aforesaid averments plaintiffs filed Title suit No. 21 of 1965 in the Court of the Second munsif, Cuttack, asking for the relief of permanent injunction restraining the defendants from selling, publishing or otherwise dealing with their almanacs amongst other reliefs They further asked for an interim injunction. Defendants contested the suit alleging that there was no passing off and that an action for passing-off was outside the jurisdiction of ordinary Civil Courts and would exclusively lie in the Court of the District Judge. The learned trial Court granted an interim injunction. In appeal it was vacated on a finding that the Munsif had no jurisdiction to try the suit. Against this order, the civil revision has been filed.

(2.) THE only question for determination in this revision is whether the Court of the second Munsif has jurisdiction to try the suit. Section 73 of Trade Marks Act 1940 (hereinafter referred to as Old Act) ran thus-No suit for the injunction of a trade mark or otherwise relating to any right in a trade mark shall be instituted In any Court inferior to a District court having jurisdiction to try the suit. The Old Act was repealed by the Trade and Merchandise Marks Act, 1958 (hereinafter referred to as the New Act ). Section 105 of the New Act runs thus-

(3.) WHATEVER might be position under the old Act, it is very clear from Section 105 (c) of the New Act that a suit for passing-off arising out of the use by the defendant of any trade mark which is identical with or descriptively similar to the plaintiff's trade mark, whether registered or unregistered can be instituted only in the Court of the District Judge having jurisdiction to try the suit. It is not necessary to decide in this revision whether in fact there was passing-off by the defendants of the plaintiff's almanacs. Even accepting the plaintiff's case that there was passing-off, the suit is maintainable only in the Court of the District judge.