Allahabad High Court
Manglore Ganesh Beedi Works Through Its ... vs District Judge, Munsif City And Shri ... on 25 January, 2005
Equivalent citations: 2005(3)AWC2097
Author: Rakesh Tiwari
Bench: Rakesh Tiwari
JUDGMENT Rakesh Tiwari, J.
1. This petition was heard on 4.10.2004, 5.11.2004, 20.12.2004 and on 21.12.2004. A mention was made by Sri A.K. Singh, Advocate that Sri Prabhat Agarwal, counsel for the respondents has instructed him to inform the court that he cannot come to the court as he has met with an accident and that he has no instructions in the case. The case may be decided on the basis of his arguments advanced earlier.
2. The petitioner is a partnership firm registered under the Indian Partnership Act, 1932. It carries on the business of manufacture and sale of bidis. The petitioner-firm was established in or near about 1932. Since then it has been using a trademark up upon the labels on its biris, comprising of a picture of 'Lord Ganesh'; the name and the expression 'Manglore Ganesh Beedi' and the numerical 501
3. The trade mark of the petitioner has been registered under the provisions of Trade and Merchandise Act, 1958 (hereinafter referred to as 'the 'TMM Act') with the following particulars :-
SI. No. Trade Mark Reg. No. Date Goods Clars
1. Words 'Manglore 6425 26.10.42 Bidis 34
Ganesh Bidis
2. Picture of 'Lord 6426 26.10.42 Bidis 34
Ganesh'
3. Words "Ganesh Bidis" 113569 22.9.45 Bidis 34
4. The controversy in the present writ petition pertains to use of the aforesaid label or trade mark. The petitioner has challenged the maintainability of Suit No. 401 of 1993 in the court of City Munsif, Meerut Under Section 9 of the Code of Civil Procedure. The petitioner has also challenged the validity and correctness of the order dated 28.7.1994 passed by the District Judge, Meerut in First Appeal From Order No. 304 of 1993- Gokhlesh Pathak v. Manglore ganesh Beedi Works, By the impugned order dated 28.7.1994, the District Judge has restrained the petitioner from using trade mark containing the word 'Ganesh' and device of 'Lord Ganesh' upon the label in respect of Bidis manufactured by the petitioner during the pendency of Suit No. 401 of 1993 in the court of City Munsif, Meerut.
5. It is claimed that the petitioner has been selling its product under the aforesaid trade mark which have acquired reputation and popularity amongst trade and public. It is said that its sale had exceeded Rs. 100 crores per annum in the last five years before filing of the suit. It is further claimed that about one lakh bidi workers were engaged at that time in the manufacture of bidis sold by the petitioner and thousands of employees were directly or indirectly connected with sale, transportation, distribution and such other jobjs related to its business of sale of bidis under the said trade mark.
6. It is also claimed that popularity of the petitioner's product is due to its efforts which have created enviable demand of its goods in public and that the people using the petitioner's product would not purchase it without the picture of 'Lord Ganesh', on the label of the product which distinguishes its superior qualities of product from other manufacturers of Bidies.
FACTS OF THE CASE
7. Respondent No. 3 filed suit No. 401 of 1993 on 4.5.1993 in the court of City Munsif, Meerut inter alia, that he belongs to Brahmin community. He claimed himself to be a disciple of 'Lord Ganesh', an important deity in of Hindu religion. According to him, smoking bidi is prohibited and is considered to be a social evil in Hindu religion. He also claimed that his religious feelings as well as feelings of Hindus at large are deeply hurt when the purchasers of the petitioner's product throw the bidi wrapper containing the picture of 'Lord Ganesh' on streets which are stamped by persons walking on the streets or in dustbins or at other dirty places; that these acts of buyers of the petitioner's products result into insult of 'Lord Ganesh' as such, the petitioner has no right to use trademark/picture of 'Lord Ganesh' on the Bidi/wrappers/labels used by the petitioner.
8. Along with aforesaid suit, an application for ad interim injunction under Order 39, Rules 1 and 2 of the Code of Civil Procedure was also moved by the respondent No. 3 containing the same allegations as made in the plaint alleging that balance of convenience etc., was in his favour.
9. Preliminary objections were raised by the petitioner on the maintainability of the suit under Order 9 C.P.C and on the jurisdiction of the Court under Section 195 of the TMM Act to the effect that the registration of the said trade mark has been renewed, from time to time, and is valid and subsisting and that the petitioner has obtained a legal and statutory right to use the said trade mark under the aforesaid Act.
10. The application for ad interim injunction was rejected by the City Munsif, Meerut vide order dated 4.9.1993 holding that the suit was not maintainable under Section 9 of the Code of Civil Procedure as it was beyond the jurisdiction of the court under Section 195 of the TMM Act as plaintiff (respondent No. 3 in the writ petition) had failed to make out any prima facie case of balance of convenience in his favour. The order dated 4.9.1993 is as under :-
^^O;kikj ,oa iq.;&oLrq fpUg vf/kfu;e 1958 dh /kkjk 105 ds vuqlkj VªsV ekdZ ds iz;ksx ds lEcU/k esa mRiUu gq, fookn dk okn ftyk U;k;k/kh'k ds U;k;ky; ds vykok fdlh vU; v/khuLFk U;kk;ky; esa ;ksftr ugha fd;k tk ldrk gSA mDr izkfo/kkuksa ds vUrxZr ;fn oknh dks izfroknh ds VªsMekdZ ds lEcU/k esa vius vjk/;nso ds vieku gksus dk /kks[kk gks jgk gS rks oknh dks pkfg, Fkk fd og l{ke U;k;ky; ;kfu ftyk U;k;ky; esa orZeku okn dks lafLFkr djrkA izfroknh }kjk izLrqr VªsMekdZ ds iathdj.k ds ifjikyu ls ;g ckr Li"V gS fd jftLVªkj }kjk izfroknh dks tks fpUg iathd`r dj fn;k gS izfroknh mlh dk iz;ksx O;kikj gsrq vius leku ij dj jgsa gS vkSj oknh dk ;g dFku xyr gS fd izfroknh dks ek= 501 VªsM ekdZ gh fn;k x;k gS] Hkxoku x.ks'k dk fp= VªsM ekdZ ds :i esa ugha fn;k x;k gSA lkFk gh lkFk ;fn dksbZ O;fDr dk jSij iSjksa ls dqpy tkus ds fy, lMd ij vFkok tehu ij Qsad nsrk gS rks blesa izfroknh dk dksbZ nks"k ugha gSa D;ksafd izfroknh mDr dk;Z Loa; ugha djrk gSA mijksDr izdkj ls foospuk djus ds mijkUr eSa bl fu"d"kZ ij igqapk gwW fd oknh vius izFke n`f"V;k dsl dks flð djus esa vleFkZ gS rFkk bl U;k;ky; dks okn flfoy izd`fr dk u gksus ds dkj.k fu"k/kkKk tkjh djus dk {ks=kf/kdkj izkIr ugha gS rnuqlkj izkFkZuk i= esa dksbZ cy ugha gS vkSj og [kf.Mr fd;s tkus ;ksX; gSA vkns'k izkFkZuk i= íx [kf.Mr fd;k tkrk gS fnukad 4&9&93 g- ¼v'kksd dqekj ikBd½ eqaflQ flVh esjBA**
11. Aggrieved by the order dated 4.9.1993, the plaintiff preferred First Appeal From Order No. 304 of 1993 in the Court of 4th Additional District Judge, Meerut. The First Appeal From Order was disposed of by order dated 28.7.1994 holding that the suit was maintainable under Section 9 C.P.C and City Munsif, Meerut had jurisdiction to try the suit. It was further held that plaintiff-appellant had been able to make out a prima facie case and balance of convenience in his favour. Relying on a decision of Madras High Court in Muniandi Kone and Ors. v. Sri Ramanatha Sethupathi Hereditary Trustee of Arulmigu Mansalanathaswami Temple and Anr. -A.I.R. 1982 Madras-170, it was also held that though there is no God hood in mere picture of 'Lord Ganesh, still the religious feelings of respondent No. 3 and others were hurt by the use of the picture of 'Lord Ganesh' on the materials used for wrapping of bidis. The relevant extract of the findings of the first appellate court in F.A.F.O No. 304 of 1993 is as under :-
^^mijksDr foospuk ,oa mRifRr ds vk/kkj ij U;k;ky; bl fu"d"kZ ij igqapk gS fd izkFkhZ ds i{k esa izFke n`"V;k ekeyk ,ao lqfo/k dk larqyu fo/keku gS ,oa izkFkhZ ds i{k esa vLFkkbZ fu"ks/kkKk tkjh fd;s tkus ls fiu{khx.k dk dksbZ viw.khZ; {kfr Hkh ugah gSA vr% mijksDr rF;ksa ,oa ifjfLFkfr;ksa dks ns[krs gq, vkSj fgUnw /kekZoyfEc;ksa fo'ks"kdj Hkxoku Jhx.ks'k ds vuq;kf;;ksa dh Hkkoukvksa dk vknj djrs gq, U;k;ky; bl fu"d"kZ ij igqapk gS fd chM+h tSls eknd inkFkZ ij Hkxoku Jh x.ks'k ds fp= dk fp=kadu djus ls jksdk tkosA U;k;ky; ijh{k.k U;k;ky; }kjk fd;s x;s rdksZ ls lger ugha gS vkSj U;k;ky; ds fopkj esa ijh{k.k U;k;ky; }kjk ikfjr vkns'k fn- 4&9&93 fujLr gksus ;ksX; gS vkSj izkFkhZ dk izkFkZuk i= íx ckcr vLFkkbZ fu"ks/kkKk Lohdkj fn;s tkus ;ksX; gSA vkns'k vihykaV dh vihy Lohdkj dh tkrh gS ,oa ijh{k.k U;k;ky; }kjk ikfjr vkns'k ,oa fu.kZ; fn- &9&93 fujLr fd;k tkrk gS ,oa vihykaV @ oknh & izkFkhZ dk izkFkZuk i= íx ckckr vLFkkbZ fo"ks/kkKk Lohdkj fd;k tkdj foi{kh @ izfroknh dks vkns'k fn;k tkrk gS fd og rk Qslyk ewy okn la- 401 @ 93 xksdys'k ikBd cuke eaxywj x.ks'k chM+h 501 chM+h ds jSij ij Hkxoku x.ks'k ds fp= dk fp=kadu ugha djsaxsA i=koyh vfoyEc ijh{k.k U;k;ky;
esa Hksth tkosA Qjhdsu fnukad 16&8&94 fd ijh{k.k U;k;k; esa mifLFkr gksA fnukad 28&7&94 g- ¼vgen 'kehe½ PrqnZ'k vij ftyk tt] esjB**
12. The validity and correctness of the order passed by the District Judge dated 28.7.1994 in aforesaid First Appeal From Order No. 304 of 1993 has been challenged in the writ petition. It has been averred in the instant writ petition that the court below has failed to consider that no right to perform pooja was involved in the present suit like the one involved in Muniandi Kone and others (supra).
13. The order of the District Judge is assailed on the ground that the court failed to appreciate that the petitioner had a statutory right to use its trademark containing picture of 'Lord Ganesh' on the wrappers/labels upon his bidis and until and unlessthat right is withdrawn or cancelled by adopting proper procedure under the Act, the petitioner has a legally recognized right under law to use the 'trademark'. It is further assailed on the ground that under the circumstances, the suit was liable to be dismissed for want of jurisdiction under Section 195 of the TMM Act and that the District Judge has failed to appreciate that there was no Godhood in petitioner's trade mark of 'Lord Ganesh' nor was it depicted in any manner so as to hurt religious feelings of any Hindu. It is lastly assailed on the ground that the petitioner is not responsible for any act of any individual of throwing the wrappers on streets or in dustbins or at other places. CONTENTIONS OF COUNSEL FOR PETITIONER
14. Learned counsel for the petitioner submits that the registration of the petitioner has been renewed, from time to time, and is valid and subsisting. Certified copies of the entries and registration of trade mark have been attached to the writ petition.
15. In support of the contention that the petitioner has an exclusive right under the TMM Act, the counsel laid emphasis on the following observations of apex court made in paragraph 36 of the Report in American Home Products Corporation v. Mac. Laboratories Pvt. Ltd. and Anr. AIR 1986 SC-137 :-
"When a person gets his trade mark registered, he acquires valuable rights by reason of such registration. Registration of his trade mark gives him the exclusive right to the use of the trade mark in connection with the in respect of which it is registered and if there is any invasion of this right by any other person using a mark which is the same or deceptively similar to his trade mark, he can protect his trade mark by an action for infringement in which he can obtain injunction, damages or an account of profits made by the other person. In such an action, the registration of a trade mark is prima facie evidence of its validity. After the expiry of seven years from the date of the registration a trade mark is to be valid in all respects except in the three cases set out in Section 32. ..."
16. He submits that in a similar matter in L.T.C. Ltd. v. Phurba Lama and Ors.- A.I.R. 1992 Sikkim -34, Sikkim High Court, dealt with the question of appropriate remedy. It was held that remedy of civil court is barred under the TTM Act, particularly, in so far as action/allegation that the trade marks hurts the religious feelings. It was held that :-
".....Section 56 empower the High Court or the Registrar to cancel or rectify the register...... As per Clause (4) the application has to be decided after giving an opportunity of being heard to the parties concerned. As per Section 2(1)(h) High Court means the High Court within the limits of whose appellate jurisdiction the office of the Trade Marks Registry referred to in each of the cases mentioned therein is situate. According to Section 2(1)(x) Tribunal means the Registrar or, as the case may be, the High Court before which the proceeding concerned is pending. Thus a proceeding for rectification cannot be brought before any High court. The jurisdiction is confined only to that High Court within whose appellate jurisdiction the office of the Registrar is situated. "
It was further held that :-
"The exclusive right to the use of the trade mark by the registered proprietor thereof is only subject to the provisions of the Act. Even a prior user cannot take away the right of the registered proprietor to use the said mark. Section 33 recognises the right of a prior user only to use a trade mark. Delhi High Court has observed in P.M. Dissels Pvt. Ltd. v. Thukral Mechanical works AIR 1988 Delhi 282- "11.....Section 33 undoubtedly recognises the right of a prior user of a trade mark. Because of the said provision the registered owner of the trade mark cannot restrain a prior user of the trade mark from using the said trade mark. Section 33 gives a right of user to the prior user of the trade mark, but it does not in any way take away the right of the registered proprietor from using the said trade mark. What the plaintiff wants by this application is that the registered owner of the trade mark should be restrained from enjoying its proprietary right in the said trade mark. Section 33 of the Act does not give any such right to the plaintiff. At best it would protect the right of the plaintiff to use the trade mark, if it can prove prior user, if the defendant wants to take any action against the plaintiff." (emphasis supplied)
17. He further states that TMM Act is a complete code providing for regulating registration and better protection of trade marks as is evident from the scheme of the Act. He further states that TTM Act is complete code and remedy under the TTM Act should be resorted to, learned counsel for the petitioner placed reliance in the following paragraphs 9 and 10 of the Report in The Premier Automobiles Ltd. v. Kamlakar Shantaram Wadke and Ors.-AIR 1975 SC-2238:-
"9..... It is legitimate to take the view that the remedy provided under the Act is not such as to completely oust the jurisdiction of the Civil Court for trial of industrial disputes. If the dispute is not an industrial dispute within the meaning of Section 2(k) or within the meaning of Section 2A of the Act, it is obvious that there is no provision for adjudication of such disputes under the Act. Civil Courts will be the proper forum. But where the industrial dispute is for the purpose of enforcing any right, obligation or liability under the general low or the common law and not a right, obligation or liability created under the Act, then alternative forums are there giving an election to the suitor to choose his remedy of either moving the machinery under the Act or to approach the civil court. It is plain that he cannot have both. He has to choose one or the other. But we shall presently show that the civil court will have no jurisdiction to try and adjudicate upon an industrial dispute if it concerned enforcement of certain right or liability created only under the Act. In that event civil court will have no jurisdiction even to grant a decree of injunction to prevent the threatened injury on account of the alleged breach of contract if the contract is one which is recognized and enforceable under the Act alone.
10. In Doe v. Bridges, (1831) 1 B & Ad. 847 at page 859 are the famous and oft quoted words of Lord Tenterden, C.J. saying "where an Act creates an obligation and enforces the performance in a specified manner we take it to be a general rule that performance cannot be enforced in any other manner."
This passage was cited with approval by the Earl of Halsbury, L.C. in Pasmore v. the Oswaldtwistle Urban District Council 1898 A.C 387 and by Lord Simonds at page 407 in the case of Cutler v. Wandsworth Stadium Ltd., 1949 A.C 398. Classic ennunciation of the law and classification of the cases in three classes was done by Willes. J. "with the precision which distinguished the utterances of that most accompliced lawyer in the case of Wolverhampton New Waterworks CO. v. Hawkesford" (1859)6 C.B. (N.S) 336 (vide the speech of Viscount Haldane at page 391 in the case of Neville v. London "express" News paper, Ltd. 1919 A.C 368 (H.L). The classes are enumerated thus:
There are three classes of cases in which a liability may be established by statute. There is that class where there is a liability existing at common law, and which is only reenacted by that statute with a special form of remedy; there, unless the statute contains words necessarily excluding the common law remedy, the plaintiff has his election of proceeding either under the statute or at common law. Then there is a second class, which consists of those cases in which a statute has created a liabiity but has given no special remedy for it; there the party may adopt an action of debt or other remedy at common law to enforce it. The third class is where the statute creates a liability not existing at common law, and gives also a particular remedy for enforcing it...... "with respect to that class it has always been held, that the party must adopt the form of remedy given by the statute."
18. Section 28 of the TMM Act provides that once a trade mark is registered it gives the exclusive right to the use of the trade mark to the registered proprietor in relation to the goods in respect of which the trade mark is registered. Under Section 31 of the Act, registration is a prima facie evidence of its validity and it is conclusive after 7 years in accordance with Section 32. Thus, registration of the petitioner's trade marks is valid and conclusive and so long as it remains on the register, it has the right to exclusive use of the said trade marks as held in para 41 of Poddar Tyres Ltd. v. Berock Sales Corporation Ltd. -A.I.R. 1993 Bombay-237. This right cannot be curtailed or taken away except in the manner provided under the aforesaid Act. The question in the present writ does not relate to the legal rights of respondent No. 3 but relates to whether use of the registered trade marks by the petitioner hurts the religious feelings of respondent No. 3 and Hindu community at large. In other words, the question in the present case is whether religious feelings of any individual or group of people can be allowed to override the ordinary rights of property vested in another person. It is further submited that there is no such curtailment of individual rights of property known to the law. This proposition is fortified by the decision of this court in Beharilal v. Ghisalal -(1902)24 I.L.R.-499.
19. The learned counsel submits that the respondent No. 3 has no legal right and in any event none of his rights is infringed. What the petitioner is doing is in exercise of its legal right. Mere fact that the religious feelings of respondent No. 3 are hurt by the use of petitioner's registered trade marks upon bidis is not in itself a matter which gives rise to a cause of action to him. Respondent No. 3 is entitled to his own religious beliefs but he cannot force them upon the petitioner so as to restrain it from dealing with its rights to the exclusive use of registered trade marks in a manner incompatible to the respondent No. 3's beliefs. The courts of law do not recognize hurt to religious feelings as a civil actionable wrong. Reference, in this connection, may be had to a decision of Gujarat High Court in Ushaben Navinchandra Trivedi v. Bhagyalaxmi Chitramandir - A.I.R. 1978 Guj-13.
20. The grievance of the respondent No. 3 that use of the name and/or picture of 'God Ganesh' as trade mark by the petitioner upon the wrapper/label is for commercial purpose and, therefore, is objectionable. His further contention is that smoking bidis is bad and is prohibited by Hindu scriptures that feelings of Hindus are hurt when the labels/wrappers containing the picture of 'Lord Ganesh' as trademark is thrown away here and there after using of the product is baseless. Except bare averment no material has been placed on record by respondent No. 3 in support of his aforesaid claims and contentions. The names and pictures of God or Goddesses are drawn, painted, printed, embossed or engraved upon several articles such as boards, hoardings, calendars, books, invitation cards, stationery as also on packaging of almost all variety of goods. In fact, almost all users of such goods throw away all such goods after their purpose is over. If the grievance of the respondent No. 3 is to be accepted and taken to its logical end, use of the names and motifs of Gods or Goddesses upon anything except in temples will have to be restrained.
21. In so far as the question whether use of device of 'Lord Ganesh' on the label is concerned, it is used in the calendars, diaries, greeting cards, invitation cards for wedding ceremonies, and in all important auspicious ceremonies, functions etc. in the symbol or device of 'Lord Ganesh' is not depicted in a manner which can be said to be objectionable and which may hurt the religious feelings, faith and sentiments of Hindus, it cannot be said that the symbol itself hurts the religious feelings, sentiments and faith of thousand of people. Smoking of biris may be injurious to health but it certainly is not treated as anti-religious. No religion, much less, Hindu religion and religious scriptures prohibit smoking of bidis. Significantly, crores of people in India, most of whom are Hindus, smoke bidis. If the bidi smokers throw bidi packages on the street or in waste paper basket, the petitioner cannot be held responsible for their said act. Several trade marks containing names and motifs of God or Goddesses in respect of various goods are registered under the TMM Act. No one, except one or two have raised objections to the use of the name and motif of 'God Ganesh' on its bidi packets on the ground that it hurts their religious feelings. Likewise, names and or pictures of Gods or Goddesses are being printed on articles of daily consumption since over a century, but they have never been treated as objectionable or anti-religious or hurting religious feelings of Hindus. 22. Thus, the registration of a trade mark creates a legal right in favour of the petitioner and it is entitled to use that trade mark until and unless it is cancelled, rectified or revoked in accordance with law. In the present case, the picture of 'Lord Ganesh' is used by the petitioner as it has faith and belief in 'Lord Ganesh' and he believed that 'Lord Ganesh' will bring prosperity in its business, which cannot be said to hurt the feelings and sentiments of Hindus.
23. A similar matter concerning the petitioner came up for decision before Madras High Court in A.T. Raja, Madras v. Mangalore Ganesh Beedi Works, Mysore 1998 IPLR-286. The plaintiff- respondent's long standing label trae mark with words and picture of 'Lord Ganesh' for Beedies was being used by the defendants, in that case. In a suit for infringement, the defendants declared that they will not use the impugned mark. However, they filed a rectification petition with prayer to expunge plaintiffs marks on ground of being unregistrable as inclusion of picture of 'Lord Ganesh' was allegedly affecting defendant's religious sentiments and likely to affect the susceptibilities of the Hindus. The petition was rejected. It was held that the original registration was perfectly in order as use of 'Lord Ganesh' was not prohibited by the Central Government and Section 11(e) of the TTM Act cannot be invoked for taking the marks off the Register. Dismissing the petitioner, the Court held as under :-
"Section 56 under which the rectification petition was filed requires that the petitioner be a 'person aggrieved'. Despite the fact that the petitioner had on his own initiative stopped for good the use of his label trade mark 'KUBER GAJAPATHY'. Besides, he continued to do his normal business of beedises. The registered trade marks the respondent did not in any way adversely affect the petitioner's business minus the trade mark nor did they prevent him from carrying any other lawful activities. Hence the petitioner could not claim to be 'an aggrieved person.
2. Petitioner's major contention was that the respondent's marks were not registrable under Section 11(d) as they had injuriously affected his religious sentiments and were likely to hurt to the religious susceptibilities of Hindu citizens of India as the label showed the picture of Lord Ganesh and such objects of worship cannot be commercialized. The trade marks, in question, were subsisting after first registration in 1942. In the long period of 50 years no other person had objected to the picture of Ganesh in the trade marks and, in fact, there were a number of other registered trade marks containing the names of Lord Ganesh or Lord Krishna. Even in the list of prohibited trade marks issued by the Central Government under Section 23(1), the name of Lord Ganesh is not included. Hence, religious names not mentioned in the list of prohibited trade marks are entitled to be registered if otherwise eligible.
3. Although, there is a health hazard in smoking, the large scale practice prevalent among the Hindus of smoking does not mean that Hindu religion approved smoking.
4. Any prohibition in the use of a particular name or picture in relation to particular goods has necessarily to be notified by the Central Government as per Section 23.
5. When the petitioner himself was using the trade mark which included the picture of Deity Ganesh, he had no justification to complain against the plaintiff's use of the Deity in their trade marks.
6. The petitioner had failed to make out a case under Section 11(d) also.
7. The petitioner's Senior Counsel contended that the marks of respondent included the word 'Mangalore'. As Mangalore was the name of a well known- city, the name was not entitled to protection of the court. This contention could not sustain as the petition did not include this prayer and even otherwise a mention of such names is not prohibited Under Section 11 and invocation to remove the mark Under Section 11(a) was totally untenable."
24. A similar matter came up for consideration before Bombay High Court in Bhau and Anr. v. State of Maharashtra and Ors.- 1999 Crl. L.J-1230, wherein allegations of sweeping nature, as in the present case, had been made for establishing that label hurts religious sentiments. The court dealt with the matter regarding injury to the religious feelings in printing and pasting of photographs of God and Goddess of Hindu religion on fire crackers. The court was of the view that if any petitioner feels that by bursting the fire crackers on which there are photographs of God and Goddesses, he may stop himself using such fire crackers for his own purpose because only his feelings are being hurt but he should not take the matter in his hands as if he is representing whole of the society when whole of the society is not looking to the matter from that point of view.
25. In that case, the petitioners had contended that the photographs of God and goddesses of Hindu religion are being printed on the coverings of the fire crackers and when the fire crackers are fired, those photographs are destroyed and this causes mental agony to the persons from Hindu community and, therefore, the manufacturers of the fire crackers be directed not to affix photographs of god and goddesses of Hindu religion on the fire crackers.
26. The court held that it is a fact that photographs of God and Goddesses of Hindu religion are being pasted on the fire crackers which is not happening for the first time and this practice is going on since last many years but nobody raised any objection regarding this practice uptil then. This was only because nobody thought it objectionable. Nobody's feelings were hurt on seeing the fire crackers bursting and the photographs destroying because the photographs on the fire crackers were not being looked at as photographs of god and goddesses but just some prints to attract the attention of the customers. There was no intention that anybody's feelings should be hurt by selling such fire crackers or by bursting such fire crackers. It is just whim of the petitioners and for that they have come before the court. The court gave an example of newspaper observing that photographs of God Goddesses are being printed everyday in different newspapers. The life of the newspaper is hardly for 24 hours and thereafter it becomes waste paper and those photographs on the newspapers go to the dustbin in majority of the cases without anybody considering that there are photographs of God and goddesses of Hindu religion or photographs of National leaders because the matter is never looked at from that point of view. The court further observed that whenever invitation cards of marriages or other ceremonies being performed by Hindu persons, photographs of God and goddesses are printed on these invitation cards and once the purpose of the cards is finished those cards also go to the dustbins, with them the photographs printed on them. Here also nobody's feelings are hurt by saying that the photographs of God and goddesses are being thrown in dustbins along with other rubbish matters.
27. The court concluded that if the analogy which is being applied by the petitioners for the photographs, which are being affixed on the fire crackers is to be applied to all the photographs, which are being printed in the newspaper and invitation cards as mentioned above, such printing will have to be stopped and that is nothing but impracticable, illogical approach to the matter.
28. The question whether common law rights of owner can be limited by religious prejudices of neighbours came up for consideration before a Division Bench of this court in appeal in Behari Lal and Ors. v. Ghisa Lal and Ors.-1902 I.L.R vol. XXIV-499 in which propriety of a decision of the subordinate Judge of Moradabad dismissing the plaintiffs suit was impugned. The matter was that the plaintiffs sued for an injunction restraining defendants from obstructing them in cutting certain branches of a pepal tree overhanging their property. The pepal tree grew in the enclosure of a temple, and the resistance was based on the ground that the tree was an object of veneration to Hindus, and that the lopping of its branches would be offensive to the religious feeling of the Hindu community. In that case, Pt. Moti Lal Nehru was one of the appellants for whom Sir Tej Bahadur Sapru appeared and Pt. Madan Mohan Malviya contested on behalf of the respondents. The plaintiffs in that case, were owners of a house adjacent to the site of a Hindu temple. Near their house stood in the temple enclosure a papal tree, the branches of which extended over their house and which had, of course been growing there for many years. The plaintiffs, alleged that the branches of the tree afforded facilities for a thief to obtain entrance into their house and endangered life and property, desired to cut those branches. They were prevented from doing so by the defendants. The plaintiffs asked that an injunction be issued against the defendants, enjoining them not to offer obstruction to the cutting of those branches which spread over the plaintiffs' house. Both the Munsif and the subordinate Judge had found that the pipal tree was an object of veneration to pious Hindus and had been growing there for over 20 years. Both of them had dismissed the plaintiffs' suit. Dismissing the appeal, Justice Blair held as under :-
"The question is a serious one in this country, because, on the one hand, it is highly undesirable to insult or irritate the religious susceptibilities of the people; and on the other, one has to look for the existence of some principle of law by which the general feeling of one part of the population can be allowed to override the ordinary rights of property vested in another person. Mr. Tej Bahadur, for the appellants contends that there is no such curtailment of individual right of property known to the law, and Mr. Malviya for the respondents is unable, out of the long array of Indian cases to produce a single authority in support of the judgements of the courts below. ..."
29. In UshabenNavinchandra Trivedi and Anr. (supra), the plaintiffs-appellants filed a suit claiming a permanent injunction against the defendants-respondents restraining them from exhibiting the picture named "Jai Santoshi Maa". The plaintiffs claimed to be firm believers in Hindu religion. The case of the plaintiffs for injunction was based on the ground that the movie was presented as a religious and mythological one even though it was not so in fact. Persons having interest in religion and mythology would be attracted by the picture and when the same was seen by them it would hurt their feelings as Goddeses Sarasvati, Laxmi and Parvati were depicted jealous and were ridiculed. According to them, the defendants had definitely distorted and abused Hindu mythology and they had depicted the mythology by introducing invented story. It was held that there was no wrongful act and violation of any legal duty and none of the plaintiffs' civil rights was involved and, therefore suit could not fall under Section 9 of the Code. The courts of law have not recognized hurt to religious feelings as a civil actionable wrong. No legal right of the plaintiffs is infringed. Mere fact that the defendants' movie shocked the religious sentiment of the plaintiffs is not itself a matter which gives rise to a cause of action. It is further held that the balance of convenience was in favour of the defendants. Injunction could not be granted against them under 0.39, Civil P.C or the provisions of the Specific Relief Act as it was not reasonably clear that the exhibition of the film would be a nuisance. The defendants have right to exhibit the film in pursuance of the certificate obtained by them. The film is not publicly exhibited that is to say, it is not being shown to those who do not want to see it; it is being shown on payment; people have to use their volition to see the picture. There is no compulsion to see the film. If the feelings of the plaintiffs are hurt they may not see the movie again. The plaintiffs may propagate against the picture urging the fellow religionists not to see it. It may be that the religious feeling of the plaintiffs is hurt but considering all the material circumstances of the case as stated hereinabove, balance of convenience is in favour of the defendants.
30. The counsel for the petitioner then contended that under Section 105 of the TTM Act, no suit relating to any right in a registered trade mark shall be instituted in any court inferior to District Court. They very same Section also contains similar provision in respect of suit for infringement of registered trade mark and suit for passing off. Thus, suit relating to 'any right in a registered trade mark' contemplated in Section 105 of the TMM Act is different from 'suit for infringement of registered trade mark' as also 'suit for passing off'.
31. He submits that under Section 28 of the TMM Act, the registered proprietor has a right to the exclusive use of a registered trade mark. He also has a right to obtain reliefs in respect of infringement of trade mark in a manner provided by the TMM Act. Infringement of trade mark has been defined in Section 29 of the TMM Act. Suit for enforcement of these two rights are covered by Section 105(b) and 105(a) respectively. The instant suit is for curtailment of the petitioner's right to the exclusive use of its registered trade marks. Such a suit is squarely covered by Section 105(b) if the TMM Act and, therefore, could not have been instituted in the District Court Meerut.
32. If any person is aggrieved by the registration of trade marks of the petitioner he has a remedy of making an application before the High Court or to the Registrar concerned for cancellation or variation of the registered trade marks on the ground that the entry relating to the registration of the said trade mark was made without sufficient cause or that the said entry is wrongly remained on the register, as provided in Section 56 of the TMM Act. It was open to respondent No. 3 to have moved an application for cancellation of registered trade marks of the petitioner on the ground that the said trade marks hurt the religious susceptibilities of Hindus and hence the said registrations were made without sufficient cause and even today, wrongly remain on the register.
33. The respondent without taking recourse to the remedy provided under the TMM Act and filed suit for curtailment of the legal and exclusive right of the petitioner. The TMM Act is a complete code in itself. It creates a right and also provides particular remedy for cancelling the trademark, hence the respondent should have adopted the form of remedy given by the Statute for taking away the right provided by the Statute. The matter would have been different if the TMM Act had not provided remedy for cancellation of registration of trade mark.
34. Right to registration is not a pre-existing right but is a statutory creation and the same statute has also provided machinery for correction of any error in registration. Provision has been made for determination in a rectification proceeding, of all questions including the question whether the registered trade mark should not have been registered because it comprises of or contains any matter likely to hurt the religious susceptibilities of any class or section of citizens of India, which may be necessary or expedient to decide. Thus, the legislative intent is that the question as to the validity, and consequently right to use of the registered trade mark should not be decided by a civil court. The Civil Courts, therefore, had no jurisdiction to try and entertain the suit as it was not of a civil nature as per Section 9 of the Code of Civil Procedure.
35. Admittedly, the case of the respondent No. 3, in the instant case, is that the symbol of 'Lord Ganesh' has been depicted on the label of the biri manufactured by the petitioner in such a form that it hurts he feelings and sentiments of Hindus. It is not correct. Picture of 'Lord Ganesh' develops religious feeling in the mind of every Hindu and it can never hurt their feelings. It is a symbol of faith in the religion. Respondent No. 3 has made only sweeping allegations that Biri smokers after smoking bidis throw the bidi wrapper on streets or in dustbins or at other dirty places; that the picture of 'Lord Ganesh' is thereafter stamped by persons walking on street thereby insulting 'Lord Ganesh' and deeply hurting faith and religious feelings of respondent No. 3 and other Hindus etc. In fact, symbol of 'Lord Ganesh' is used on many articles and by registering the symbol with numerical 501, it distinguishes the product of the petitioner from others giving petitioner an invaluable right to use the trade mark and prevent his right from infringement under the Act. Biri is not smoked by Hindus only. Muslims and people belonging to other communities also smoke Bidi. In these days of inflation, about a lakh workers of different caste, creed and religion are directly or indirectly engaged in the business of the petitioner. If a non-Hindu touches Bidi of the petitioner, does it offends the feeling of Hindu? It is not only Hindu who smoke Bidi and if it offends the religious feelings of any individual, he is free not to smoke Biri manufactured by the petitioner. Primarily this matter has already been settled in the case of A.T. Raja, Madras (supra) by Madras High Court.
36. The District Judge, Meerut had relied upon a decision of Madras High Court in Muniandi Kone and Ors. (supra) to hold that the suit was maintainable under Section 9 C.P.C. This finding is obviously erroneous in view of the view taken by the apex court and a large number of High Courts quoted in the body of this judgement. 'Lord Ganesh' is a symbol publicijuris which can be used by anyone. It has not been included in the list by the Central Government under Section 23 of the TMM Act imposing any prohibition on its use as trademark. However, in order to distinguish its product, the symbol canbe used with other numericals motif etc., so as to make the product of the petitioner distinguishable from the products of other manufacturers in the same trade. Once such a symbol or trade mark is registered under the Act, the person who is registered owner is authorized to use it and he has every right to prevent the others from passing off so that there can be no infringement of his legal right. The petitioner is proprietor and inventor of this trade mark which has been registered. It has a prosperous business which has expanded with the passage of time. The petitioner has put in time, effort and money to gain wide market and public support. In paragraph 28 of the Report in The Andhra Perfumery Works Joint Family Concerns v. Karupakula Suryanarayaniah and Ors.-A.I.R. 1069 Madras-126, it was held as under :-
"28. Before leaving these appeals, we may refer to one argument that the word 'GANESH' applies to the Lord Ganesa who is the deity of auspicious commencement of all undertakings in Hinduism, and hence that it would be wrong to create a monopoly in respect of such a term, for one particular proprietor. But it was never pretended that the word 'GANESH' cannot become distinctive for respondent firm's agarbathis or that it is not registrable. We need only observe, without proceeding further into this aspect, and leaving the issue quite open , that there are several other names of the deity (Vigneswara, Vinayaka etc.) which could be appropriately used by persons, desiring to associate their goods with the favour of the deity, if the Mark and device, which are thus invented, do not otherwise infringe any prior registered device under the Trade Mark Law."
37. It is firmly established that every and any sentimental grievance does not give any cause of action which can be tried in a court of law. Neither the plaint nor the application discloses any basis or cause of action except assumed sentimental grievance. The manufacturing, trade and smoking of Bidies or tobacco in any form is not prohibited by any law nor by any religious authoritative scriptures. Sadhus, Brahmins, priests and people from all walks of life creed and culture smoke Bidies, Gutkha, and cigars all over India from centuries. It is customary to use pictures of Gods and Goddesses in India on the products. List of some of the registered trademarks containing the device of deities appended with Annexure 2 to the writ petition show that Ganesh, Laxman, Hanuman, venkateshwar, Krishna, Meenakshi, Raj Laxmi, Shivlingam or Shiva, Ambika, Narad, Ram, Ravana, Chamunda Bhuvaneshwari, Durga, Bramha, Vishnu, Garud, Natraj, Kali, Nandi, Sun Agni, Annapurna, Gauri, Uma, Saraswati are some of the very popular names and devises registered under the Trade Marks Act.
38. The following registered Trade Marks numbers show that trademark of 'Ganesh' with its variations in device is used by a large number of Tobacco manufacturers on their products.
Registered trade Trade Mark Description of Trade Mark Mark Number Journal number 93104 Mfg. Tobacco J/162 Ganesh 6426 J/38 Ganesh Bidis 6388 J/36 Ganesh Snuff 6441 J/45 Ganesh tobacco 9285 J/27 Ganesh Snuff 9534 J/55 Ganesh Tambaku 117628 J/60 Ganesh Cigarettes 141001 J/97 Ganesh Chewing tobacco 177899 J/212 Ganesh Chewing tobacco 187068 J/242 Ganesh Snuff 182711 J/283 Ganesh Snuff 219036 J/374 Ganesh Cigars 217348 J/392 Ganesh Chewing tobacco 276635 J/587 Ganesh Jarda
39. The petitioner had been using the said trade mark of 'Ganesh' for its product- 'Bidies' for over more than 50 years. No basis or material has been provided by the respondent that the religious feelings of Hindus are hurt by smoking Bidi or smoking Bidi is prohibited by Hindu Dharmashastras. Dharmashastras have no statutory binding force unless it is enacted by law. The respondent for self aggrandizement has taken a stand or hurt of religious feelings. As is apparent from the use of the devise and trademark of 'Ganesh' on various products, particularly, on tobaccos, it is also apparent that people are associated with the picture or idle of 'Ganesh' and might be preferring to buy Bidies produced by the petitioner. Had it been otherwise, they would have revolted not only against the petitioner but against others who have been marketing the tobacco products by using the devise of 'Ganesh' as trademark. The petitioner has acquired exclusive statutory right. There is no illegality or infirmity in the order passed by Munsif City dated 4.9.1993 in the suit. The first appellate court has illegally held that no balance of convenience was in favour of the petitioner. The burden of proof lay on the plaintiff that the religious feelings of Hindus were hurt and the smoking of Bidi was prohibited in the religious scriptures. The plaintiff has failed to discharge his burden of proof or to give any basis and it appears that the first appellate court has passed the impugned order dated 28.7.1994 respecting the feelings of the followers of Hindu religion in general restraining the petitioner from using the trademark. The finding is without any application of mind to the rights created by the registration under the TMM Act as well as taking into consideration the fact that the trademark of 'Ganesh' is used on large number of tobacco products including cigarette, cigars and Bidies. The petitioner could not have been discriminated. It was for the Central Government to have prohibited the use of pictures of God or Goddess under the Act and the petitioner alone cannot be singled out by the court from use of his trademark of 'Ganesh'.
40. It is firmly established that use of the symbol of 'Lord Ganesh' in the Bidis manufactured by the petitioner is not prohibited in law. It does not hurt the feelings of any Hindu, in any manner. As the Civil Suit was not maintainable, consequently, the First Appeal From Order too was not maintainable. Moreover, courts at Chennai have the jurisdiction under Section 3 of the Act to try the suit and Civil Courts at Meerut did not have the jurisdiction for a simple reason that remedy was open to the respondent No. 3 to file suit either at the place where the registered Head Office of the petitioner is situated or where trade mark was registered. I am supported in my view by the judgement in Balli Kumar v. Chunni Lal -A.I.R. 1965 Allahabad -256 and A.J. Balken v. V.S.V. Palamichami- A.I.R. 1969 Calcutta-43 holding that court of the Registrar has full discretion in granting or refusing the relief in proceedings under Section 56 of the Act. Reference in this regard may also be had to Chamundaswami W. v. Mysore Electric Company - A.I.R. 1962 Madras -214. That being so, District Judge, Meerut had no jurisdiction to restrain the petitioner from using its trade mark, duly registered in accordance with law giving him right to use the same. The petitioner is not liable of acts of others.
41. No other point was argued.
42. In the result, the writ petition is allowed and the impugned order dated 28.7.1994 passed by the District Judge, Meerut is quashed. The parties shall bear their own costs.