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TMI Blog2014 (1) TMI 686X X X X Extracts X X X X X X X X Extracts X X X X ..... ts its footwear under the registered trademark and copyright PRAGATI/PARAGATI with a device of lion. 4.On 19th March, 2001, the Plaintiff filed a suit being O.S. No. 2 of 2001 at District Courts in Kottayam, Kerala against the defendants, claiming relief under the Copyright Act, 1957 (hereinafter referred to as "1957 Act") and the Trade and Merchandise Marks Act, 1958 (hereinafter referred to as the "1958 Act"). The suit is pending in the trial court. The defendant filed I.A. No. 322 of 2004, under order VII Rule XI CPC, with a prayer for rejection of plaint for want of territorial jurisdiction. The trial court dismissed the application on 22nd March, 2004, with the observations that the issue of jurisdiction will be decided at the final stage of the suit. The defendant filed CRP No.363 of 2004 in the High Court against the aforesaid order. The High Court by order dated 16th June, 2004, allowed the civil revision and directed the trial court to determine the issue of territorial jurisdiction afresh. 5. In view of the aforesaid directions issued by the High Court, the trial court treated the issue with regard to the jurisdiction as the preliminary issue. Upon consideration of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 958 Act would not be maintainable. Mr. Siddhartha Dave, learned counsel appearing for the plaintiff further submitted that the relief claimed under the 1958 Act in the suit filed by the plaintiff under the 1957 Act was incidental to the relief claimed under the 1957 Act. Such a composite suit would be maintainable. According to the learned counsel, this Court in the case of Dhodha House vs. S.K.Maingi (2006) 9 SCC 41 examined and only partly answered the question as to whether a composite suit seeking relief of injunction under both the 1957 Act and the 1958 Act is maintainable when filed in the court where the plaintiff resides. In support of the submissions made, learned counsel relied on para 54 and 55 of the judgment. 10. Learned counsel further submitted that this Court in the case of Dabur India Ltd. Vs. K.R.Industries (2008) 10 SCC 595 answered the question as to what would be meant by a composite suit? Answering the aforesaid question, this Court has held that the ratio in the case of Dhodha House (supra) is that the provisions contained in Section 62(2) of the 1957 Act have been specially designed to confer an extra benefit upon the parties who were not in a position to i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in Section 134 of the 1999 Act is misplaced. The defendant also placed reliance on Section 159(4) of the 1999 Act and submitted that the proceedings initiated under the 1958 Act would be governed by the same Act notwithstanding the provisions contained in the 1999 Act. 13. We have considered the submissions made by the learned counsel for the parties. In our opinion, the issues raised in the present proceedings are no longer res integra being covered by the ratio of judgments of this Court in the case of Dhodha House (supra) and Dabur India (supra). 14. It is not disputed before us that in the plaint itself it is pleaded as under : "Though the defendants goods are not available in Kottayam, nor do the defendants carry on business and reside within the jurisdiction of this Hon'ble Court, yet this Hon'ble Court has the jurisdiction to try and entertain this suit at Kottayam having regard to the provisions of Section 62(2) of the Copyright Act for the plaintiff carries on business and resides within the territorial jurisdiction of this Hon'ble Court." 15. The aforesaid averments make it abundantly clear that even the plaintiff was aware that the court at Kottayam will have no juri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he conditions precedent specified therein must be fulfilled, the requisites wherefore are that the plaintiff must actually and voluntarily reside to carry on business or personally work for gain. For the purpose of invoking the jurisdiction of a court only because two causes of action joined in terms of the provisions of the Code of Civil Procedure, the same would not mean that thereby the jurisdiction can be conferred upon a court which had jurisdiction to try only the suit in respect of one cause of action and not the other. Recourse to the additional forum, however, in a given case, may be taken if both the causes of action arise within the jurisdiction of the court which otherwise had the necessary jurisdiction to decide all the issues." 18. This legal position has been reiterated in the case of Dabur India (supra) as under:- "34. What then would be meant by a composite suit? A composite suit would not entitle a court to entertain a suit in respect whereof it has no jurisdiction, territorial or otherwise. Order 2 Rule 3 of the Code specifically states so and, thus, there is no reason as to why the same should be ignored. A composite suit within the provisions of the 1957 Act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ase. The question which arose for consideration therein was as to whether the jurisdiction of a court under sub-section (2) of Section 62 of the 1957 Act is wider than that of the court specified under the Code of Civil Procedure and thus a person instituting a suit having any claim on the ownership of the copyright which has been infringed, would not be a ground for holding that he would not come within the purview of sub-section (2) Section 62 of the 1957 Act, as he had been served with a "cease and desist" notice, opining: (SCC p. 693, para 13) "13. It is, therefore, clear that the object and reason for the introduction of subsection (2) of Section 62 was not to restrict the owners of the copyright to exercise their rights but to remove any impediment from their doing so. Section 62(2) cannot be read as limiting the jurisdiction of the District Court only to cases where the person instituting the suit or other proceeding, or where there are more than one such persons, any of them actually and voluntarily resides or carries on business or presently works for gain. It prescribes an additional ground for attracting the jurisdiction of a court over and above the 'normal' grounds as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , Extra., Pt. II, Sec. 3(ii), dated 15th September, 2003. Since the suit in this case was filed on 19th March, 2001, it would be adjudicated under the 1958 Act. The 1958 Act does not contain a provision similar to the provision contained in Section 62(2) of the 1957 Act. Parliament being aware of the provisions of the 1957 Act still did not incorporate the same in the 1958 Act. Therefore, it can not be read into the 1958 Act by implication. The High Court had correctly concluded that the suit of the plaintiff (appellant) was a composite one. 22. Having said this, we are still not inclined to interfere with the order passed by the High Court permitting the plaintiff to amend the plaint. The High Court was mindful of the fact that under the 1999 Act, a composite suit could be filed and would be maintainable by the Court at Kottayam. The Court was aware that the plaintiff has filed the suit on 19th March, 2001, but the 1999 Act was not enforced till 15th September, 2003. In our opinion, the High Court has passed the order in exercise of its discretionary powers taking into consideration the entire facts and circumstances of the case. The discretion exercised by the High Court can not ..... X X X X Extracts X X X X X X X X Extracts X X X X
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