RAMNIWAS Vs. RATANLAL

JUDGEMENT

(1.) THIS is a civil revision application arising out of a suit instituted on the 3rd of July, 1950, by Ratanlal and others against Ram Niwas and others in the court of Civil Judge, Alwar; for an injunction restraining the defendant from infringing the rights of the plaintiff in respect of his trade mark.

(2.) THE plaintiff it was alleged, carried on a business of manufacture and sale of bidis, He sold his goods with a lable described in the plaint and the defendant also sold his goods by affixing a similar label, which it was said constituted an infringement of the plaintiff's right to use his trade mark. THE defendant raised an objection that the suit was not cognizable by the court of the Civil Judge. THE learned Civil Judge, after hearing the argument of the parties came to the conclusion that as the suit related to a question regarding infringement of the rights trade mark he had no jurisdiction to decide the case. He ordered return of the plaint for presentation to the proper court under Order 7, Rule10 C. P. C. THE plaintiff went in appeal to the court of the District Judge at Alwar who held that the case was not regarding infringement of the rights of trade mark but it was a case about passing off in the meaning of sec. 20 (2)of the Indian Trade Mark Act. He therefore decided that the suit was cognizably by the court of the Civil Judge and directed that court to proceed with tha trial of the case. THE defendant has now come to this Court in revision and it is urged on his behalf that sec. 73 of the Indian Trade Marks Act debars courts inferior to the court of District Judge from taking cognizance of the cases of infringement of trade marks or otherwise relating to any right to a trade mark and the Civil Judge is, therefore, not competent to try the suit. It is further contended that as sec. 73 provides for a matter of procedure it should be applied retrospectively to the present case which was pending on the date the Indian Trade Marks Act was extended to the State of Rajasthan. On behalf of the opposite party it has been pleaded that sec. 73 does not deal with a matter of procedure and even if it be so, the language of sec. 73 is prospective and it cannot be applied retrospectively

(3.) THE second point is also disposed of by the discussion of the first point and the finding is that the language of sec. 73 is clearly such as to make its operation prospective and it cannot be construed in such a manner as to affect the pending cases.