Raja Soap Factory & Ors Vs. S. P.
Shantharaj & Ors  INSC 10 (20 January 1965)
20/01/1965 SHAH, J.C.
CITATION: 1965 AIR 1449 1965 SCR (2) 800
CITATOR INFO :
R 1988 SC1531 (152) D 1991 SC2176 (30)
High Court of Mysore Act, 1962 (Mysore Act 5
of 1962)-Trade and Merchandise Marks Act, 1958 (Act 43 of 1958), 105-Code of
Civil Procedure, 1908 (Act 5 of 1908), ss. 24, 151-High Court--Passing off
Action, institution-Entertainability- Exercise of original
jurisdiction-Jurisdiction, Meaning of.
The respondents instituted a passing off
action in the High Court of Mysore for a declaration that they were exclusive
owners of a certain trade mark and for a permanent injunction restraining the
appellants from passing off their goods as that of respondents. By s. 105 of
the Trade and Merchandise Mark Act such an action may be instituted in any
court not inferior to a District Court having jurisdiction to try the suit. It
appears that on the day the suit was instituted the District Court was closed
and there was no Judge functioning in the District Court who was on duty and
competent to exercise the powers of the District Court.
The High Court entertained the plaint and
granted temporary injunction. In appeal by special leave :
HELD:(i) The High Court of Mysore is by its
constitution primarily a court exercising appellate jurisdiction; it is
competent to exercise original jurisdiction only in those matters in respect of
which by special Acts it has been specifically invested with jurisdiction. It
would be competent to exercise original jurisdiction under s. 105 of the Act if
it was invested with ordinary original jurisdiction of a District Court and not
otherwise. [802 D- F] As a Court of appeal it undoubtedly stands at the apex
within the State, but on that account it does not stand invested with original
jurisdiction in matters not expressly declared within its cognizance. [802 H]
(ii) Power under s. 24 of the Code of Civil Procedure to try and dispose of a
proceeding after transfer from a court lawfully seized of it does not involve a
power to entertain a proceeding which is not otherwise within the cognizance of
the High Court. [803 C-D] (iii) Section 151 of the Code of Civil Procedure preserves
the inherent powers of the Court, but it does not authorise the High Court to
invest itself with jurisdiction where the jurisdiction is not conferred by law.
[803 D-E] (iv) By "jurisdiction" is meant the extent of the power
which is conferred upon the court by its constitution to try a proceeding : its
exercise cannot be enlarged because an extraordinary situation
"requires" the court to exercise it. [803 H-804 A]
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 771 of 1964.
Appeal by special leave from the judgment and
order dated H May 29, 1964, of the Mysore High Court in Civil Petition No.
90 of 1964.
801 S. S. Khanduja and Ganpat Rai, for the
B. R. L. Iyengar, S. K. Mehta and K. L.
Mehta, for respondents Nos. 1 to 7.
The Judgment of the Court was delivered by
Shah J. On May 5, 1964 the respondents-hereinafter called 'the
plaintiffs'-instituted in the High Court of Mysore an action in the nature of a
passing off action against the appellants-hereinafter called 'the
defendants--for a declaration that they "are exclusive owners of the trade
mark consisting of the letters R.S.F. and No. 806", for a permanent
injunction restraining the defendants from passing off their washing soap as
the goods of the plaintiffs and for incidental reliefs.
By s. 105 of the Trade and Merchandise Marks
Act 43 of 1958 a passing off action whether the trade mark is registered or
unregistered may be instituted in any court not inferior to a District Court
having jurisdiction to try the suit. It appears that on May 5, 1964 the
District Court of Mysore, within the territorial limits of which the cause of
action was alleged to have arisen, was closed for the summer vacation, and it
is common ground that on that day there was no Judge functioning in the
District Court who was on duty and competent to exercise the powers of the
At the request of the plaintiffs the High
Court entertained the plaint and also an application for interim injunction
restraining "the defendants their agents or servants from using the trade
mark R.S.F. on washing soap manufactured by them and from selling washing soap
bearing the said offending mark pending disposal of the case." By order
dated May 29, 1964 the High Court granted the temporary injunction in terms of
the prayer in the application.
In this appeal with special leave, counsel
for the defendants argues that the High Court had no jurisdiction to entertain
the action instituted by the plaintiffs and had no power to make an order
issuing a temporary injunction. The action, as framed, could properly be
instituted in the District Court. The expression "District Court" has
by virtue of s. 2(e) of Act 43 of 1958 the meaning assigned to that expression
in the Code of Civil Procedure, 1908.
Section 2(4) of the Code defines a
"district" as meaning the local limits of the jurisdiction of a
principal civil court- called the District Court-and includes the local limits
of the ordinary original civil jurisdiction of a High Court.
If therefore a High Court is 802 possessed of
ordinary original civil jurisdiction, it would, when exercising that
jurisdiction be included, for the purpose of Act 43 of 1958, in the expression
Exercise of jurisdiction by the High Court of
Mysore is governed by Mysore Act 5 of 1962. The Act is purely a regulatory Act
enacted for regulating the business and exercise of the powers of the High
Court in relation to the administration of justice : it does not purport to
confer upon the High Court any jurisdiction original or appellate.
It is true that by s. 12 of the Mysore High
Court Act 1 of 1884 enacted by the Maharaja of Mysore to amend the constitution
of the High Court of Mysore, and to provide for the administration of justice
by that Court, the Government of Mysore was authorised by notification to
invest the High Court with ordinary original civil jurisdiction of a District
Court in all suits of a civil nature exercisable within such local limits as
the Government may from time to time declare and appoint in that behalf. But s.
12 of the Mysore Act 1 of 1884 has been repealed by s. 14 of Mysore Act 5 of
The High Court of Mysore is by its
constitution primarily a court exercising appellate jurisdiction : it is
competent to exercise original jurisdiction only in those matters in respect of
which by special Acts it has been specifically invested with jurisdiction. The
High Court is competent to exercise original jurisdiction under s. 105 of the
Trade and Merchandise Marks Act 43 of 1958 if it is invested with the ordinary
original civil jurisdiction of a District Court, and not otherwise, and the
High Court of Mysore not being invested by any statute of under its
constitution with that jurisdiction was incompetent to entertain a passing off
But it was urged that in a State the High
Court is at the apex of the hierarchy of civil courts and has all the powers
which the subordinate courts may exercise, and it is competent to entertain all
actions as a court of original jurisdiction which may lie in any court in the
State. For this exalted claim, there is no warrant in our jurisprudence.
Jurisdiction of a Court means the extent of the authority of a Court to
administer justice prescribed with reference to the subject-matter, pecuniary
value and local limits. Barring cases in which jurisdiction is expressly
conferred upon it by special statutes, e.g. the Companies Act; the Banking
Companies Act, the High Court of Mysore exercises appellate jurisdiction alone.
As a Court of Appeal it undoubtedly stands at the apex within the State, but on
that account it does not stand invested with original jurisdiction in matters
not expressly declared within its cognizance.
803 Section 24 of the Code of Civil Procedure
on which counsel for the plaintiffs relied lends no assistance to his argument.
Among the powers conferred upon a High Court by s. 24 Code of Civil Procedure,
there is enumerated the power to withdraw any suit, appeal or other proceeding
in any Court subordinate to it, and to try or dispose of the same :
[S. 24(1) (b) (i)]. But jurisdiction to try a
suit, appeal or proceeding by a High Court under the power reserved by s. 24(1)
(b) (i) arises only if the suit, appeal or proceeding is properly instituted in
a court subordinate to the High Court, and the suit, appeal or proceeding is in
exercise of the power of the High Court transferred to it. Exercise of this
jurisdiction is conditioned by the lawful institution of the proceeding in a
subordinate court of competent jurisdiction, and transfer thereof to the High
Court. Power to try and dispose of a proceeding after transfer from a court
lawfully seized of it does not involve a power to entertain a proceeding which
is not otherwise within the cognizance of the High Court.
Section 151 of the Code of Civil Procedure
preserves the in- herent power of the Court as may be necessary for the ends of
justice or to prevent abuse of the process of the Court.
That power may be exercised where there is a
proceeding lawfully before the High Court : it does not however authorise the
High Court to invest itself with jurisdiction where it is not conferred by law.
Reliance was sought to be placed upon the
summary of a judgment dated June 6, 1962 in a case decided by Narayana Pai, J :
Kaverappa v. Narayanaswamy, which is found printed under the heading
"Short Notes of Recent Decision" in the Mysore Law Journal (1962) at
p. 1. The learned Judge is reported to have observed that s. 24 of the Code of
Civil Procedure "read along with s. 151 which preserves to the High Court
all inherent powers to make such orders as may be necessary for ends of justice
necessarily implies that whenever an extraordinary situation so requires, a
High Court may confer original jurisdiction upon itself to do or protect ends
of justice". It does not appear that the judgment is reported in any
series of reports-authorised or unauthorised, and we have not been supplied
with a copy of the original judgment. But if the learned Judge, as reported in
the summary of the judgment, was of the opinion that the High Court is
competent to assume to itself jurisdiction Which it does not otherwise possess,
merely because an "extraordinary situation" has arisen, with respect
to the learned Judge, we are unable to approve of that view. By
"jurisdiction" is meant the extent of the power Which is conferred
upon the Court by its constitution to try a proceeding; its exercise 804 cannot
be enlarged because what the learned Judge calls an extraordinary situation
"requires" the Court to exercise it.
The appeal must therefore be allowed.
Temporary injunction granted by the High Court is vacated and the plaint is
ordered to be returned for presentation to the proper Court.
As before the High Court, no objection was
raised about the maintainability of the suit or the application for injunction,
we direct the parties to bear their own costs.