Calcutta High Court (Appellete Side)
M/S. Stadmed Private Ltd. & Anr vs The Intellectual Property Appellate ... on 24 July, 2013
Author: Arun Mishra
Bench: Arun Mishra
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
APPELLATE SIDE.
Present:
The Hon'ble Arun Mishra, Chief Justice
And
The Hon'ble Justice Joymalya Bagchi
F.M.A. 860 of 2013
With
C.A.N.6796 of 2012.
M/s. Stadmed Private Ltd. & Anr.
-vs-
The Intellectual Property Appellate Board & Anr.
Ms. Mousumi Bhattacharjee,
Shri S. K. Dutt,
Shri S. Banerjee.
...For the Appellant.
Shri Ranjan Bachwat,
Shri Prithiraj Sinha,
Shri Paritosh Sinha,
Shri Amitava Mitra,
Ms. Dolon Dasgupta,
Shri S. Chatterjee,
Shri S. Sen.
...For the Respondents.
Heard on : 24.07.2013
Judgment on : 24.07.2013.
As per Arun Mishra, C. J.
This intra court appeal has been preferred questioning the sustainability of
the judgement and order dated 6th June, 2012 dismissing the writ petition on the
ground of lack of territorial jurisdiction.
The petitioners in the writ petition had questioned the order passed by a
Circuit Bench of the Intellectual Property Appellate Board at Mumbai on 4th
August, 2006 in which the order dated 24th March, 2003 passed by the Deputy
Registrar of Trade Marks was questioned. The Intellectual Property Appellate
Board has set aside the order passed by the Deputy Registrar of Trade Marks,
Mumbai passed on 24th March, 2003. The appeal has been allowed.
The legality of the aforesaid order passed by the Intellectual Property
Appellate Board had been questioned in the writ application filed before the
Single Bench. The Single Bench has held that it has no territorial jurisdiction to
entertain the petition merely by the fact that the order was served in Calcutta.
This Court has no jurisdiction to entertain the same. The writ petition ought to
have been preferred in the High Court at Mumbai. Aggrieved thereby, the intra
court appeal has been preferred.
Ms. Mousumi Bhattacharjee, learned Counsel for the appellants
appearing with Shri S. K. Dutta and Shri S. Banerjee has submitted that as per
Rule 21 of the Intellectual Property Appellate Board (Procedure) Rules, 2003, it is
necessary to communicate the order. Until and unless, the order is
communicated, proceedings are not complete. There can be no decision in the
eye of law, as contemplated in Rule 21 of the Rules of 2003, if there is no
communication. This communication forms part of bundle of facts. This
constitute cause of action, as part of cause of action has arisen within the
jurisdiction of this Court. Thus, this Court had the jurisdiction to entertain the
petition. The writ petition has been illegally dismissed by the learned Single
Bench. The learned Counsel has relied on various decisions, which will be dealt
with later on.
Shri Ranjan Bachwat, learned Counsel appearing on behalf of the
respondents has supported the order of the Single Bench.
The rectification proceeding was initiated admittedly before the Deputy
Registrar of Trade Marks, Mumbai. Against that order, an appeal was preferred
before the Appellate Board. The same was decided by a Circuit Bench of the
Appellate Board in Mumbai. The writ of certiorari was sought for quashment of
the order passed by the Appellate Board. In such a situation, in our considered
opinion, no petition can be filed at Calcutta High Court particularly when orders
are sought to be questioned which were passed within the territorial jurisdiction
of High Court at Mumbai. We find support from the decision of the Hon'ble
Supreme Court in Mosaraf Hossain Khan Vs. Bhagheeratha Engg. Ltd. &
Ors., (2006) 3 SCC 658 in which question arose for consideration whether
cause of action arose within the jurisdiction of High Court before which the writ
petition was filed. The Apex Court has held that only such High Court within
whose jurisdiction the subordinate court passed the order has jurisdiction to
entertain application under Article 227 of the Constitution of India. The Apex
Court has laid down thus:
"25. It is no doubt true that in a criminal matter also the High
Court may exercise its extraordinary writ jurisdiction but
interference with an order of the Magistrate taking cognizance
under Section 190 of the Code of Criminal Procedure will stand
somewhat on a different footing as an order taking cognizance
can be the subject-matter of a revisional jurisdiction as well as
of an application invoking the inherent jurisdiction of the High
Court. A writ of certiorari ordinarily would but be issued by a
writ court under Article 226 of the Constitution against a
judicial officer. (See Naresh Shridhar Mirajkar v. State of
Maharashtra.). However, we are not oblivious of a decision of
this Court in Surya Dev Rai v. Ram Chander Rai wherein this
Court upon noticing Naresh Shridhar Mirajkar and also relying
on a Constitution Bench of this Court in Rupa Ashok Hurra v.
Ashok Hurra opined that a Judicial Court would also be subject
to exercise of writ jurisdiction of the High Court. The said
decision has again been followed in Ranjeet Singh v. Ravi
Prakash. It is, however not necessary to dilate on the matter
any further. The jurisdiction of the High Court under Section
482 of the Code of Criminal Procedure was noticed recently by
this Court in State of U. P. v. Surendra Kumar holding that
even in terms thereof, the Court cannot pass an order beyond
the scope of the application thereof. In Surya Dev Rai we may,
however, notice that this Court categorically stated that the
High Court in issuing a writ of certiorari exercises a very
limited jurisdiction. It also made a distinction between
exercise of jurisdiction by the High Court for issuance of a writ
of certiorari under Articles 226 and 227 of the Constitution. It
categorically laid down that while exercising its jurisdiction
under Article 226, the High Court can issue a writ of certiorari
only when an error apparent on the face of the record appears
as such; the error should be self-evident. Thus, an error
according to this Court needs to be established. As regards
exercising the jurisdiction under Article 227 of the Constitution
it was held (SCC p.689, para 24)
'The power may be exercised in cases occasioning grave
injustice or failure of justice such as when (I) the Court or
tribunal has assumed a jurisdiction which it does not have, (ii)
has failed to exercise a jurisdiction which it does have, such
failure occasioning a failure of justice, and (iii) the jurisdiction
though available is being exercised in a manner which
tantamounts to overstepping the limits of jurisdiction.'
28. We have referred to the scope of jurisdiction under Articles
226 and 227 of the Constitution only to highlight that the High
Courts should not ordinarily interfere with an order taking
cognisance passed by a competent court of law except in a
proper case. Furthermore only such High Court within whose
jurisdiction the order of the subordinate court has been passed,
would have the jurisdiction to entertain an application under
Article 227 of the Constitution unless it is established that the
earlier cause of action arose within the jurisdiction thereof.
29. The High Courts, however, must remind themselves about
the doctrine of forum non conveniens also [ See Mayar (H.K.)
Ltd. V. Owners & Parties, Vessel M. V. Fortune Express.]"
The Apex Court in State of Rajasthan & Ors. Vs. M/s. Swaika
Properties & Anr., (1985) 3 SCC 217, also considered whether the part of the
cause of action arose within the territorial jurisdiction of the Calcutta High
Court. There was service of notice under Section 52 (2) of the Rajasthan Urban
Improvement Act, 1959 on the respondent at their registered office within the
territorial limits of the State of West Bengal. The Apex Court laid down that
merely service of the notice could not give rise to a cause of action within that
territory unless the service of such notice was an integral part of the cause of
action. The entire cause of action culminating in the acquisition of the land
under Section 52 (1) arise within the territorial jurisdiction of the Rajasthan High
Court at the Jaipur Bench. Therefore, for the remedy by way of grant of relief, a
writ petition should have been filed before the Jaipur Bench of the Rajasthan
High Court. The Apex Court has laid down thus:
"7. Upon these facts, we are satisfied that the cause of action
neither wholly nor in part arose within the territorial limits of the
Calcutta High Court and therefore the learned Single Judge had no
jurisdiction to issue a rule nisi on the petition filed by the
respondents under Article 226 of the Constitution or to make the ad
interim ex parte prohibitory order restraining the appellants from
taking any steps to take possession of the land acquired. Under sub-
section (5) of Section 52 of the Act the appellants were entitled to
require the respondents to surrender or deliver possession of the
lands acquired forthwith and upon their failure to do so, take
immediate steps to secure such possession under sub-section (6)
thereof.
8. The expression 'cause of action' is tersely defined in Mulla's Code
of Civil Procedure :
The 'cause of action' means every fact which, if traversed, it
would be necessary for the plaintiff to prove in order to support his
right to a judgement of the court.
In other words, it is a bundle of facts which taken with the law
applicable to them gives the plaintiff a right to relief against the
defendant. The mere service of notice under Section 52(2) of the Act
on the respondents at their registered office at 18-B, Brabourne
Road, Calcutta i.e. within the territorial limits of the State of West
Bengal, could not give rise to a cause of action within that territory
unless the service of such notice was an integral part of the cause of
action. The entire cause of action culminating in the acquisition of
the land under Section 52(1) of the Act arose within the State of
Rajasthan i.e. within the territorial jurisdiction of the Rajasthan
High Court at the Jaipur Bench. The answer to the question
whether service of notice is an integral part of the cause of action
within the meaning of Article 226(2) of the Constitution must
depend upon the nature of the impugned order giving rise to a cause
of action. The notification dated February 8, 1984 issued by the
State Government under Section 52(1) of the Act became effective
the moment it was published in the official Gazette as thereupon the
notified land became vested in the State Government free from all
encumbrances. It was not necessary for the respondents to plead
the service of notice on them by the Special Officer, Town Planning
Department, Jaipur under Section 52(2) for the grant of an
appropriate writ, direction or order under Article 226 of the
Constitution for quashing the notification issued by the State
Government under Section 52(1) of the Act. If the respondents felt
aggrieved by the acquisition of their lands situate at Jaipur and
wanted to challenge the validity of the notification issued by the
State Government of Rajasthan under Section 52(1) of the Act by a
petition under Article 226 of the Constitution, the remedy of the
respondents for the grant of such relief had to be sought by filing
such a petition before the Rajasthan High Court, Jaipur Bench,
where the cause of action wholly or in part arose."
In Oil and Natural Gas Commission Vs. Utpal Kumar Basu & Ors.,
(1994) 4 SCC 711, the Apex Court has laid down that facts must form integral
part of the cause of action. Merely service of the order at Calcutta would not
confer the jurisdiction to this Court to interfere with such an order.
The Apex Court in Municipal Corporation of Delhi Vs. Qimat Rai
Gupta & Ors., (2007) 7 SCC 309 has laid down that an order ordinarily is
presumed to have been made when it is signed. The communication is merely to
give enough opportunity to the person to take recourse to law, if he is aggrieved
thereby.
Thus, the Rules 20 and 21 of the Rules of 2003 cannot come to the
rescue of the appellant as the order was passed and signed in Mumbai and
merely its communication at Calcutta, would not constitute part of the cause of
action to question it at the High Court at Calcutta.
The learned Counsel appearing on behalf of the appellant has relied upon
State of Punjab Vs. Amar Singh Harika, AIR 1966 SC 1313 in which the
Apex Court has considered the fact that the respondent was an Assistant
Director, Civil Supplies in the Patiala and East Punjab States Union (PEPSU) was
dismissed from service by an order purported to have been passed on 3rd June,
1949. This order was, however, communicated to him by the Chief Secretary,
PEPSU Government on 2nd/3rd January, 1953. The respondent filed a suit
against the appellant on the ground that the impugned order whereby he was
dismissed from service, was invalid, inoperative and illegal. The enquiry was
assailed on the ground that it was void. The Apex Court has laid down that the
order of dismissal is not effected unless it is communicated to the officer
concerned. Present is not the case of dismissal where dismissal is effected when
it is communicated. The order was effective at Mumbai where it was signed and
particularly, when it has been passed at Mumbai. It is not a dispute between
master and servant as it was in the case of Amar Singh Harika (Supra). Thus,
the decision has no application.
Reliance has also been placed upon the decision of the Hon'ble Supreme
Court in the case of Bichhittar Singh -vs- The State of Punjab; AIR 1963 SC
395. It is a case of dismissal in which communication may form part of the
cause of action. The same is not the case here. Thus, the decision has no
application in the instant case.
The learned counsel has also relied upon the decision of the Hon'ble
Supreme Court in the case of Bikash Bhushan Ghosh and Others -vs-
Novarties India Limited and Another; (2007) 5 SCC 591, in which the Apex
Court has considered the question of the Appropriate Government to make
reference as order of termination was served at Calcutta and it was passed on the
fact of not obeying orders of transfer. Transfer of appellants had some nexus
with the order of termination of their services. The transfer order was passed at
Calcutta while the employee was at Calcutta. Thus, it was held that part of the
cause of action arose in Calcutta and the State of West Bengal was the
Appropriate Government. The decision has no application as to the facts of the
instant case and no part of the cause of action has arisen here at Calcutta.
The learned counsel has also relied upon the decision of this Court in the
case of Serajuddin & Co. -vs- The State of Orissa and Ors.; AIR 1971 Cal
414 and in the case of Union of India (UOI) and Ors. -vs- Hindustan
Aluminium Corporation Limited and Anr.; AIR 1983 Cal 307. Both the
decision have no application as to the facts of the instant case.
In the facts and circumstances of the case, we find no merit in the
submissions of the learned counsel of the appellants.
Resultantly, the appeal being devoid of any merit is hereby dismissed. The
application being C.A.N. 6796 of 2012 is also dismissed.
(Arun Mishra, Chief Justice)
Joymalya Bagchi, J.:
I agree.
(Joymalya Bagchi, J.)