(1.) In Letters Patent Appeal Nos. 1/99 and 3/98, vide a common order dated 10.2.99, the matter, regarding maintainability of Letters Patent Appeal against an order of the Single Judge before the Division Bench, was referred to the Full Bench.
(2.) We have heard Mr. A.K. Phukan, senior Advocate and Mr. S. Sarma learned counsel for the appellants and Mr. N. M. Lahiri, Senior Advocate for the respondents.
(3.) Although the facts in L.P.A1/99 and 3/98 are not much relevant for the purpose of deciding the issue before us, we can advert to them to appreciate the question raised in this Reference. The respondent plaintiff instituted Civil suit before the Deputy Commissioner, judicial, who function as the District Judge of Dimapur, Nagaland, for relief under Trade and Merchandise Marks Act, 1958. Plaitiff also sought temporary injunction and the learned Presiding Officer thereafter granted ex-parte injunction as prayed for. Feeling aggrieved the respondents preferred Misc. First Appeal before the High Court and the learned Single Judge dismissed the appeal, whereupon the appellant preferred the Letters Patent Appeal. The respondent plaintiff raised objections regarding the maintainability of the Letters Patent Appeal in view of the provisions contained in Section 104(2) CPC and relied on a decision of the Full Bench of this Court in the case of Modern Supply Agency and Another v. Musstt Anowara Begum in L.P.A.No. 8/95. A Full Bench of this Court relying on a decision of the Apex Court in the case of Resham Singh Pyara Singh v. Abdul Sattar, held: "The appeal before the learned Single Judge was under the provisions of Order 43, Rule 10 and in view of the provisions of sub-section (2) of Section 104 no further appeal would lie from any order passed in an appeal under this section. In view of the law laid down by the Apex Court in the case of Resham Singh Pyara Singh (supra) we are of the opinion that the Letters Patent Appeal will not lie before the Division Bench of High Court against the order of the learned Single Judge by virtues of Section 104(2) of the Code of Civil Procedure.''