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TMI Blog2003 (3) TMI 528X X X X Extracts X X X X X X X X Extracts X X X X ..... in an appeal under sections 109(2) (4) of the Act by which the learned single Judge allowed the appeal and set aside the order dated 22-12-1995 granting the review application filed by Nasik Hing Supplying Co. (the appellant before us). Annapurna Udyog Bhandar (hereinafter referred to as "Annapurna Udyog") had filed an application for registering the word "Annapurna" as the trade mark. On publication of the notice of application, Nasik Hing Supplying Co. (the appellant before us-hereinafter referred to as "Nasik Hing") filed their notice of opposition to the application for registration. The hearing of the case was fixed on 3-5-1995 to which Nasik Hing asked for postponement. However, that request was not granted and the application for opposition was heard on 3-5-1995. Nasik Hing moved an interlocutory application on 11-5-1995 stating that the bill books and the books of account of Annapurna Udyog be made available to Nasik Hing for inspection so as to verify the claim of user of the trade mark. However, on the basis of the hearing that had taken place on 3-5-1995, the Assistant Registrar of Trade Marks, Ahmedabad passed order dated 24-5-1995 rejecting the application for oppo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s in the appeals raised a preliminary objection against maintainability of the appeal by invoking section 100A of the Code of Civil Procedure and by placing strong reliance on the decision of the Division Bench of this Court in Jaimin J. Desai v. Gujarat Chamber of Commerce Industry AIR 2000 Guj. 139. While hearing the said preliminary objection, a Division Bench of this Court expressed its prima facie view that the appellate jurisdiction under section 109(5) of the Act is not ousted by virtue of section 100A of the CPC. While arriving at this prima facie view, the said Division Bench also expressed its disagreement with the view expressed by another Division Bench of this Court in Jaimin J. Desai s case ( supra ) about interpretation of the provisions of section 100A of the CPC and of Clause 15 of the Letters Patent and made the following observations : "It would thus appear that neither under section 100A of the CPC, nor under clause 15 of the Letters Patent, an appeal to the Division Bench is prevented against an order made by the single Judge in exercise of his appellate jurisdiction, which jurisdiction is exercised against the order made in the original jurisd ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction 100A of the CPC that it prohibits any kind of second appeal. 7. On the other hand, Mr. G.N. Shah, learned Counsel appearing for the appellant in one of the appeals has made the following submissions and Mr. H.S. Tolia appearing for Mr. Y.J. Trivedi has adopted the same : ( i )Trade Marks Act is a special statute. For the purposes of appeals under the said Act, the provisions of section 100A are not applicable as the CPC is the general procedural code which cannot take away the substantive right of the appellant to file an appeal under the Trade Marks Act. ( ii )The express provisions of sub-section (5) of section 109 of the Trade Marks Act conferring substantive right to appeal cannot be taken away or whittled down by absence of any period of limitation for such appeals under the Trade Marks Rules, 1959. In such an event, the general provisions of the Limitation Act would apply. ( iii )The Division Bench deciding the case of Jaimin J. Desai ( supra ) was not concerned with any appeal under the Trade Marks Act, but was merely dealing with maintainability of an appeal under Clause 15 of the Letters Patent against the order of a single Judge of this Court while deci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Central Government or from any act or order of the Registrar for the purpose of giving effect to any such decision, order or direction. (2) Save as otherwise expressly provided in sub-section (1) or in any other provision of this Act, an appeal shall lie to the High Court within the prescribed period from any order or decision of the Registrar under this Act or the rules made thereunder. (3)****** (4) Every such appeal shall be heard by a single Judge of the High Court: Provided that any such Judge may, if he so thinks fit, refer the appeal at any stage of the proceeding to a Bench of the High Court. (5) Where an appeal is heard by a single Judge, a further appeal shall lie to a Bench of the High Court. (6) The High Court in disposing of an appeal under this section shall have the power to make any order which the Registrar could make under this Act. (7)****** (8) Subject to the provisions of this Act and of the rules made thereunder, the provisions of the Code of Civil Procedure, 1908 (V of 1908), shall apply to appeals before a High Court under this Act. [Emphasis supplied] Section 133 empowers the Central Government to make rules to carry out the purpose ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... w now in force or any special jurisdiction or power conferred, or any special form of procedure prescribed, by or under any other law for the time-being in force. Part VII of the Code contains the provisions for appeals. 96. Appeal from original decree. (1) Save as otherwise expressly provided in the body of this Code or by any other law for the time-being in force, an appeal shall lie. From every decree passed by any Court exercising original jurisdiction to the Court authorized to hear appeals from the decisions of such Court. ****** APPEALS FROM APPELLATE DECREES 100. Second appeal. (1) Save as otherwise expressly provided in the body of this Code or by any other law for the time-being in force, an appeal shall lie to the High Court from every decree passed in appeal by any Court subordinate to the High Court, if the High Court is satisfied that the case involves a substantial question of law." Section 100A of the Code inserted by Amendment Act of 1976 which was in force from 1-2-1977 to 30-6-2002 read as under : "100A. No further appeal in certain cases. Notwithstanding anything contained in any Letters Patent for any High Court or in any other instrument ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... endered by a single Judge of the High Court in writ proceedings has been done away with, consequently now with the CPC Amendment Act, 2002, abolition of Letters Patent Appeals is confined to appeals against the judgment of a single Judge exercising his appellate jurisdiction, whether that appeal was against an original or appellate decree or order. Section 104 reads as under : "APPEALS FROM ORDERS 104. Orders from which appeal lies. (1) An appeal shall lie from the following orders, and save as otherwise expressly provided in the body of this Code or by any law for the time being in force from no other orders: ****** ( i )any order made under rules from which an appeal is expressly allowed by rules : ****** (2) No appeal shall lie from any order passed in appeal under this section. 105. Other orders. (1) Save as otherwise expressly provided, no appeal shall lie from any order made by a Court in the exercise of its original or appellate jurisdiction, but where a decree is appealed from, any error, defect or irregularity in any order, affecting the decision of the case, may be set forth as a ground of objection in the memorandum of appeal. 106. What Courts t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urt subject to the superintendence of the said High Court and not being an order made in the exercise of revisional jurisdiction, and not being a sentence or order passed or made in exercise of the power of superintendence under the provisions of section 107 of the Government of India Act, or in the exercise of criminal jurisdiction of one Judge of the said High Court or one Judge of any Division Court, pursuant to section 108 of the Government of India Act, and that notwithstanding anything hereinbefore provided, an appeal shall lie to the said High Court from a judgment of one Judge of the said High Court or one Judge of any Division Court, pursuant to section 108 of the Government of India Act, on or after the first day of February, 1929 in the exercise of appellate jurisdiction in respect of a decree or order made in the exercise of appellate jurisdiction by a Court subject to the superintendence of the said High Court where the Judge who passed the judgment declares that the case is a fit one for appeal; but that the right of appeal from other judgments of Judges of the said High Court or of such Division Court shall be to us. Our heirs or successors in Our or Their Privy Cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sly provided by any other law for the time-being in force". (4)Under Clause 15 of the Letters Patent a further appeal (numerically "second" appeal) would lie before the Division Bench of the High Court against the decision of a single Judge in a first appeal against a decree or order of a Court subject to the superintendence of the High Court. Under the same Clause, a further appeal (numerically "third" appeal) would lie before the Division Bench of the High Court against the decision of a single Judge in a second appeal from a decree or order of such Court with the leave of the single Judge. (5)However, the Letters Patent are not immutable. As per Clause 44 thereof, the Letters Patent may either be amended by the competent Legislature or they shall stand amended and altered upon enactment of a legislation on the same subject by the competent Legislature. (6)An appeal otherwise maintainable under Clause 15 of the Letters Patent would not need the support of any statutory provision in the CPC, but in case of conflict between the CPC and the Letters Patent, the CPC shall prevail. (7)Sub-section (2) of section 104 of the CPC expressly provides that no appeal shall lie from the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... de and Merchandise Marks Act, 1958 is a special law contemplated by sub-section (1) of section 4 of the Code of Civil Procedure. (11)The Registrar or the Assistant Registrar while passing orders in exercise of his powers under the provisions contained in Chapter III and other provisions of the Trade and Merchandise Marks Act, 1958 is not a Court of Civil Judicature or a Civil Court as contemplated by the Code of Civil Procedure, 1908. (12)Sub-section (5) of section 109 of the T.M. Act expressly confers right of appeal against the order of a single Judge of the High Court under sub-sections (2) and (4) of the said section before the Division Bench. Sub-section (8) of section 109 of the T.M. Act makes the provisions of CPC applicable to the appeals under the T.M. Act, expressly subject to the provisions of T.M. Act [including sub-section (5) of section 109]. Hence, section 100A CPC does not take away the said substantive right of appeal conferred by sub-section (5) of section 109 of the T.M. Act. 13. We will now discuss the case-law having a bearing on the controversy involved in this reference. 14. In a number of judgments, the Bombay High Court through its Division Benc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ay Judges as "internal appeals". It is not correct to say that the internal appeals in the High Court are governed by the Letters Patent alone, and not by the CPC. The Bombay High Court had misinterpreted and misconstrued the true nature and object of the CPC and Letters Patent. ( ii )The Bombay High Court had completely overlooked the legal effect of section 117 and Order 49, Rule 3. ( iii )Far from excluding the Code, there could be other special Acts which could and did confer additional jurisdiction even in internal appeals to the High Court. For instance, an order passed by a single Judge or a Larger Bench under section 39 of the Arbitration Act, 1940 or section 202 of the Companies Act and other similar local or special Acts. If these special Acts could, without affecting the jurisdiction of the Letters Patent or overriding the same, provide a supplementary or additional jurisdiction, there was no reason why the CPC could also not do the same when the single Judge had to adopt the procedure contained in the Code. ( iv )The concept of internal appeals in the High Court seems to be a legal fiction without any factual existence imported by some of the High Courts in order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct, 1915 and may in all respects be amended or altered in exercise of legislative authority. Under section 39(1), an appeal lies from the orders specified in that sub-section and from no others. The legislature has plainly expressed itself that the right of appeal against orders passed under the Arbitration Act may be exercised only in respect of certain orders. The right to appeal against other orders is expressly taken away. If by the express provision contained in section 39(1), a right to appeal from a judgment which may otherwise be available under the Letters Patent is restricted, there is no ground for holding that clause (2) does not similarly restrict the exercise of appellate power granted by the Letters Patent. ( iv )The intention of the Legislature in enacting sub-section (1) of section 104 CPC is clear - the right to appeal conferred by any other law for the time being in force is expressly preserved. This intention is emphasized by section 4 which provides that in the absence of any specific provision to the contrary, nothing in the Code is intended to limit or otherwise affect any special jurisdiction or power conferred by or under any other law for the time-being ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the T.M. Act, which is a special law on the subject, cannot be treated as impliedly or even expressly repealed by the prov- isions of section 100A of the CPC because the T.M. Act is a special law contemplated by section 4(1) of CPC, and therefore, the CPC does not intend to repeal the provisions conferring substantive right of appeal before a Division Bench of the High Court under sub-section (5) of section 109 of the T.M. Act. 18. It was of course urged by Mr. G.N. Shah for the respondent that the Registrar or the Assistant Registrar under the T.M. Act is not a Civil Court as contemplated by the CPC, and therefore, the entire exercise is misconceived as section 100A cannot bar appeals before the Division Bench against the decision of a single Judge in exercise of his appellate jurisdiction over any authority which is not a Civil Court. We might have been persuaded to accept the said submission but for the decision of the Apex Court in Municipal Corporation of Brihan Mumbai v. State Bank of India AIR 1999 SC 380. Against the assessment order passed by the Municipal Corporation, an appeal lies before the Small Causes Court under section 217 of the Bombay Municipal Corpor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appeal against the judgment of a single Judge of the High Court, such appeal would not be barred by the provisions of section 100A of the CPC, notwithstanding the non obstante clause with which the said section 100A begins. 19. In Garikapatti Veeraya v. N. Subbiah Choudhury AIR 1957 SC 540, the Supreme Court followed the leading decision of the Privy Council in Collonial Sugar Refining Co. v. Irving 1905 AC 369 (PC), inter alia, laying down that the right of appeal is not a mere matter of procedure, but is a substantive right and that such a right of appeal can be taken away only by a subsequent enactment either expressly or by necessary intendment and not otherwise. 20. The question, therefore, still remains whether section 100A inserted by Amendment Act, 1976 bars any appeal before the Division Bench under section 109(5) of the T.M. Act. We may reiterate that apart from the fact that sub-section (8) of section 109 T.M. Act makes the provisions of the C.P.C. applicable to appeals under the T.M. Act expressly "subject to the provisions of the T.M. Act and the rules made thereunder", the T.M. Act is a special law on the subject of trademarks whereas the C.P.C. i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ns. The Apex Court applied the aforesaid principle and held that the Industrial Disputes Act, 1947 is a special statute dealing with the industrial disputes and, therefore, the prohibition contained in section 36(4) of the I.D. Act is not done away by section 30 of the Advocates Act, 1961. We are also inclined to apply the same principle, and accordingly we hold that the expression "notwithstanding anything contained in any other law for the time-being in force" in section 100A CPC does not take away the substantive right of appeal before the Division Bench of this Court where such right is conferred by a special law conferring an express right of such appeal against the decision of a single Judge in exercise of his appellate jurisdiction over the decision of a Tribunal or a quasi-judicial authority. 21. The decision of a Division Bench of this Court in Madhusudan Vegetables Products Co. Ltd. s case ( supra ), is required to be considered very carefully. 21.1 The question of maintainability of Letter Patent Appeal under Clause 15 of the Letters Patent arose in the context of the following facts: The appellant-original plaintiff filed a civil suit in the District Cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r an appeal from an order" and it did not mean "an appeal from any appellate decree or an appeal from any appellate order", because the Civil Procedure Code contemplates only three kinds of appeals ( a )appeals against original decrees (Section 96) ( b )appeals against appellate decrees (Section 100) ( c )appeals against orders (Section 104) The Code itself does not contemplate any appeal from an appellate order as distinguished from an appeal from an appellate decree. Section 108 also fortifies this interpretation. This, however, need not detain us further. 21.5 While enunciating the aforesaid principles as set out in Para 21.2 hereinabove, the Court expressly refrained from expressing any opinion regarding maintainability of appeals under certain other statutes like the Employees State Insurance Act, 1948, Workmen s Compensation Act, 1923, Land Acquisition Act, 1894 or Bombay Public Trusts Act, 1950 etc. The Court specifically observed that it should not be taken to have expressed any opinion on the question whether section 100A bars Letters Patent Appeals against decisions of single Judge of the High Court while exercising appellate jurisdiction under such special ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ters Patent. 23.2 After tracing the historical origin and evaluation of Letters Patent of Bombay as applicable to this Court and after examining the provisions of the Government of India Act, 1915, the Government of India Act, 1935 and Arts. 225, 226 and 227 of the Constitution, the Division Bench in Jaimin Desai s case ( supra ) analysed Clause 15 of the Letters Patent. After holding that an intra-Court appeal against the judgment of a single Judge in a petition under Article 226 of the Constitution is not barred and that Clause 15 of the Letters Patent itself bars an intra-Court appeal against the judgment of the single Judge in a petition under Article 227 of the Constitution, the Division Bench made the following observations : "25. The phraseology of the Letters Patent, the Government of India Act of 1915 and the Government of India Act, 1935, make it profusely obvious that the words original and "Appellate" were used with reference to legal jurisdiction of the High Courts created by ordinary legislations as distinct from organic or Constitutional jurisdiction not subject to such laws. The historical origin of Clause 15 lies in the Imperial device to provide an intr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 104(1) read with order 43, Rule 1. In view of the decision of the Apex Court in Shah Babulal Khimji s case ( supra ) and the said decision as explained by another Division Bench of this Court in Madhusudan Vegetables Products Co. Ltd. s case ( supra ), the conclusion in Jaimin J. Desai s case ( supra ) that the Letters Patent Appeal against the decision of a single Judge of this Court in an appeal from order under section 104(1) read with order 43, Rule 1 was not maintainable was certainly correct. However, the observations made in Paragraphs 24, 26 and 61 of the said Division Bench Judgment in Jaimin J. Desai s case ( supra ) quoted hereinabove run counter to the language of Clause 15 of the Letters Patent as analysed in Paragraphs 11 and 12 hereinabove, and with respect, do not place correct interpretation on the provisions of Clause 15 of the Letters Patent of Bombay High Court as applicable to this Court. We are making these observations in order to clarify that the Letters Patent Appeals which were maintainable against the decisions in first appeals rendered by the single Judge of this Court before coming into force of the CPC Amendment Acts, 1999 and 2002 (that is, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rejected as the absence of provision for a special period of limitation for an appeal from the order of a single Judge to the Division Bench of this Court in the Trade and Merchandise Marks Rules, 1959 cannot take away the right of appeal conferred by sub-section (5) of section 109 of the T.M. Act. As per the settled legal position, the delegated legislation such as rules under a statute contain procedural or machinery provisions, and therefore, the absence of a separate provision prescribing the period of limitation for an appeal from the single Judge to the Division Bench of this Court cannot take away the substantive right of appeal conferred by the parent legislation. 27. The third contention based on the decision in Jaimin J Desai s case ( supra ) also does not help the respondents in their preliminary objection against maintainability of the O.J. Appeal for reasons which are already discussed in Para 24 hereinabove. 28. In view of the above discussion, our conclusions are as under : ( i )What section 100A of the CPC as amended by the Amendment Acts of 1999 and 2002 bars further appeal before the Division Bench of this Court against the decision of a single Judge ..... X X X X Extracts X X X X X X X X Extracts X X X X
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