India: Suit for Different Cause of Action: How Far Maintainable?

Last Updated: 18 May 2006
Article by Manisha Singh

It is a trite law that a judgement and order passed by the court having no territorial jurisdiction would be a nullity. The provisions of Code of Civil Procedure, 1908, govern determination of territorial jurisdiction of a Civil Court. Section 20 of the Code provides that the suits which do not come within the purview of Section 16 to 19 of the Code are to be instituted where the defendants reside or cause of action arises. Cause of action is a bundle of facts, which are necessary to be proved in a given case. If it arises within the jurisdiction of the court concerned it empowers the court to entertain the matter. Order II Rule 3 of the Code further provides that the plaintiff may unite in the same suit several causes of action against the same defendant, or the same defendants jointly. By necessary implication, a cause of action for infringement of Copyright and a cause of action of action for infringement of Trade Mark or a cause of action of passing off would be different. The short question which thus arises for consideration is as to whether causes of action in terms of both the Copyright Act and the Trade and Merchandise Marks Act, though may be different, would a suit be maintainable in a court only because it has the jurisdiction to entertain the same in terms in terms of Section 62 (2) of the Copyright Act?

The extent of jurisdiction of a Civil Court to determine a lis as regard infringement of the provisions of Copyright Act, 1957 and the Trade and Merchandise Marks Act, 1958 was decided by Supreme Court in Dhodha House & Patel Field Marshal Industries v. S.J.Maingi & P.M.Diesel Ltd. (2006(32)) PTC 1 (SC)) hearing the Civil Appeal No. 6248 of 1997 and Civil Appeal No. 16 of 1999 simultaneously.

In Civil Appeal No. 6248 of 1997 the appellant filed a suit against the respondent alleging the infringement of his trade mark registration ‘Dodha House’ under the 1958 Act and also copyright registered under 1957 Act. The appeal to the Supreme Court was preferred against the decision of the High Court of Allahabad, which had held that the Civil Court, which had passed an order of injunction, had no territorial jurisdiction to try the suit.

In Civil Appeal No. 16 of 1999 both the plaintiff and appellants carried on the business in diesel engines at Rajkot in Gujarat. A suit on the original side of the Delhi High Court was filed inter alia for perpetual injunction restraining infringement of trade mark, copyright, passing off and for rendition of accounts of profits. When granted, an appeal against it was filed to the Division Bench of the same High Court which held that the Delhi High Court had the territorial jurisdiction to entertain the composite suit of infringement of trade mark, copyright, passing off and for rendition of accounts of profits. Thus in view of these two contrary decisions appeal was preferred in Dhodha House & Patel Field Marshal Industries v. S.J.Maingi & P.M.Diesel Ltd.case.

A suit may lie where an infringement of trademark or copyright takes place but a cause of action for filing the suit would not arise within the jurisdiction of the court only because an advertisement has been issued in the Trademarks Journal or any other Journal, notifying the factum of filing of such an application.

The court relying on the judgements of Premier Distilleries Pvt. Ltd. v. Shashi Distilleries (2001 PTC 907 (Mad)) held that:

"a cause of action in a given case both under the 1957 Act as also under the 1958 Act may be overlapping to some extent. The territorial jurisdiction conferred upon the court in terms of the provisions of the Code of Civil Procedure indisputably shall apply to a suit or proceeding under the 1957 Act as also the 1958 Act. For the purpose of attracting the jurisdiction of a court in terms of subsection (2) of Section 62 of the 1957 Act, the conditions precedent specified therein must be fulfilled, the requisites wherefor are the plaintiff must actually and voluntarily reside to carry on business or personally work for gain".

It further held that to constitute "carrying on business’ at a certain place, the essential part of the business must take place in that place. The person acting as agent must be an agent in the strict sense of the term i.e., a special agent who attended exclusively to the business of the principal. For the purpose of invoking the jurisdiction of a court only because two cause 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 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. Thus, Civil Appeal No. 6248 of 1997 was dismissed and Civil Appeal No. 16 of 1999 was allowed.

This decision of Supreme Court raises important issues as regards to the territorial jurisdiction of the courts to entertain a suit. The decision emphasizes that the court shall not readily presume the existence of jurisdiction of a court, which was not conferred by the statute. For the purpose of invoking the jurisdiction of a court, joining two causes of action in terms of the provisions of the Code of Civil Procedure would not mean that thereby 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.

© Lex Orbis 2006

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