Gujarat High Court
Nasik Hing Supplying Company vs Annapurna Gruh Udyog Bhandar on 4 March, 2003
Equivalent citations: AIR2003GUJ275, (2003)2GLR926, (2003)2PLR926, [2003]46SCL118(GUJ), AIR 2003 GUJARAT 275
Author: M.S. Shah
Bench: J.M. Panchal, M.S. Shah
JUDGMENT M.S. Shah, J.
1. Both these appeals have been placed before this Full Bench in view of the order dated 19-6-2002 of a Division Bench of this Court referring the appeals for consideration and decision before the Larger Bench in view of the wide impact of the questions about interpretation of Section 100A of the Code of Civil Procedure and about maintainability of appeal under Sub-section (5) of Section 109 of the Trade and Merchandise Marks Act, 1958 (hereinafter referred to as "the Act" or "the T.M. Act") against the decision made by a learned single Judge of this Court under Sub-sections (2) and (4) of Section 109 of the Act.
2. O. J. Appeal No. 53 of 1998 is filed against the judgment and order dated 22-6-1998 rendered by a learned single Judge of this Court in an appeal under Section 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 accounts of Annapurna Udyog be made available to Nasik Hing for inspection so as to verity 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 opposition and granting the application of Annapurna Udyog for registration of its trade mark. On 3-7-1995, Nasik Hing filed an application for review. The Assistant Registrar granted the said application by recalling the order dated 24-5-1995 and fixed for hearing the application for registration as well as the one for opposition. Since that order of the Assistant Registrar has been set aside by the learned single Judge of this Court in the appeal of Annapurna Udyog, Nasik Hing has filed the present O. J. Appeal under Section 109(5) of the Act.
3. Similarly, O.J. Appeal No. 73 of 1998 is directed against the judgment and order dated 6-8-1998 passed by the same learned single Judge in another appeal under Section 109(2) of the Act.
Eshan Pharmaceuticals Pvt. Ltd, (hereinafter referred to as "Eshan") had filed an application in 1987 for registration of the word "AMOXIM" as trade mark claiming its user since 1979. Beecham Group P.L.C. (hereinafter referred as "Beecham" - the appellant before us) lodged notice of opposition on various grounds. The notice was lodged before the Registrar and ultimately by his order dated 31-3-1993, the Assistant Registrar of Trade Marks rejected the application for registration of the said trade mark. Aggrieved by the said order, Eshan filed an appeal before a learned single Judge of this Court under Section 109(2)(4) of the Act. After hearing both the parties, the learned single Judge allowed the appeal and set aside the order of the Assistant Registrar to the extent it rejected the application for registration, directed the Assistant Registrar to proceed with the application in accordance with law without being bound by any opinion expressed in his order dated 31-3-1993 and also directed that Beecham shall be permitted to raise the grounds raised in their interlocutory application in support of their notice of opposition and that both the parties shall be afforded opportunity for leading evidence also in respect of the facts needed to be established on the grounds raised in the interlocutory application. Against the said judgment and order of the learned single Judge, Beecham has filed the present appeal under Sub-section (5) of Section 109 of the Act.
4. At the preliminary hearing of these O.J. Appeals filed under Section 109(5) of the Act against the aforesaid orders of the learned single Judge of this Court, the respondents 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 and Industry, 2000 (1) GLR 920 : AIR 2000 Guj, 139 : 2000 (2) GLH 22.
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 C.P.C, 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 v. Gujarat Chamber of Commerce and Industry, 2000 (1) GLR 920 : AIR 2000 Guj. 139 : 2000(2) GLH 22 about-interpretation of the provisions of Section 100A of the C.P.C. and of Clause 15 of the Letters Patent and made the following observations :-
"It would thus appear that neither under Section 100A of the C.P.C., 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 jurisdiction by the subordinate Court or where the order is made under Section 109(4) of the said Act. The order made by the learned single Judge in this case was an order made under Section 109(4) of the said Act and cannot be put on par with an order made in a Misc. Appeal under Order 43, Rule 1 of the C.P.C. Therefore, we are of the prima-facie view that the appellate jurisdiction under Section 109(5) of the Trade & Merchandise Marks Act, 1958 is not ousted by virtue of Section 100A of the C.P.C.
For the above reasons and in view of the wide impact of the question, we are of the opinion that the matter should receive attention of a Larger Bench."
5. Hence, both the appeals were placed before this Full Bench for hearing of the preliminary objection.
6. Mr. R.R. Shah, learned Counsel for the respondent-Companies in all the appeals has raised the following contentions ;-
(i) The provisions under which the present appeals have been filed, that is, Sub-section (5) of Section 109 of the Trade Marks Act, was placed on the statute book in 1958. Section 100A was inserted in the Code of Civil Procedure, 1908 by Act 104 of 1976 with effect from 1-2-1977. Since Section 100A C.P.C. commences with the non-obstante clause "Notwithstanding anything contained .... .... .... in any other law for the time-being in force", the said words cover the Trade Marks Act, 1958 also, and therefore, where an Appeal from Order is heard by a single Judge of a High Court, no further appeal lies from such judgment and decree. The provisions of Section 100A C.P.C., therefore, prevail over and even displace the provisions of Sub-section (5) of Section 109 of the Trade Marks Act.
(ii) Rule 121 of the Trade and Merchandise Marks Rules, 1959 provides for the period of limitation for an appeal to a High Court from any decision of the Registrar under the Act or the Rules, but the Rules are silent for any such appeal from a single Judge of the High Court to its Division Bench. Hence, there cannot be an appeal from an order of a single Judge under Sub-sections (2) and (4) of Section 109 to a Division Bench of the High Court.
(iii) In Jaimin J. Desai v. Gujarat Chamber (supra), a Division Bench of this Court has elaborately considered the entire question of appeals against appellate decrees or appellate orders passed by a single Judge of the High Court and the Division Bench has held by an interpretation of Section 100A of the C.P.C. 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 C.P.C. 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 deciding the Appeal from Order under Section 104(1) read with Order 43, Rule 1 of the C.P.C. In fact, in the decision in Madhusudan Vegetables Products Co. Ltd., AIR 1986 Guj. 156 (on which the Division Bench in Jaimin J. Desai's case has relied), it expressly observed that the ratio of the said decision about non-maintainability of a second appeal was not applicable to appeals provided by special statutes like Employees' State Insurance Act, Workmens' Compensation Act and Land Acquisition Act, etc. Hence, the observations made in the Madhusudan Vegetables case (supra) or in Jaimin J, Desai's case (supra) are not at all relevant for the purposes of deciding maintainability of the appeal under Section 109(5) of the Trade Marks Act.
8. Before dealing with the rival submissions, it would be necessary to set out the relevant statutory provisions which have a bearing on the controversy involved in this reference or which are relied upon by the learned Counsel.
9. The Trade and Merchandise Marks Act, 1958 was enacted to provide for the registration and better protection of trade marks and for the prevention of the use of fraudulent marks on merchandise. Chapter II of the Act contains provisions for register of trade marks, for entering of registered trade marks and such other matters relating to register of trade marks as may be described and also for the conditions for registration. Chapter III comprising of Sections 18 to 26 lays down the procedure for and duration of registration. Section 109 in particular provides as to how the application for registration of a trade mark is to be made and how the Registrar, subject to the provisions of the Act, may refuse the application or may accept it absolutely or subject to such amendments, modifications, conditions or limitations, if any, as he may think fit. Section 97 provides that in all proceedings under the Act before the Registrar, the Registrar shall have all the powers of a Civil Court for the purposes of receiving evidence and other procedural matters. Clause (c) of Section 97 also empowers the Registrar to review his own decision on an application made in this behalf. Section 109, insofar as the same is relevant for the present purposes, reads as under :-
"109. Appeals :- (1) No appeal shall lie from any decision, order or direction made or issued under this Act by 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 farther 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.
Section 133 empowers the Central Government to make rules to carry out the purposes of the Act, inter alia, to provide for matters relating to the times or periods required by the Act to be prescribed or any other matter which is required to be or may be prescribed.
Rule 121 of the Trade and Merchandise Marks Rules, 1959 provides for the time for appeal to a High Court in the following terms :-
"Appeals to High Court
121. Time for appeal - An appeal to a High Court from any decision of the Registrar under the Act or the rules shall be made within three months from the date of such decision or within such further time as the High Court may allow."
10. Coming to the Code of Civil Procedure, 1908, it begins with the following preamble :-
"An Act to consolidate and amend the laws relating to the procedure of the Court of Civil Judicature."
The relevant provisions thereof read as under :-
"Section 9. Courts to try all civil suits unless barred :- The Courts shall (subject to the provisions herein contained) have jurisdiction to try all suits of a civil nature excepting suits of which their cognizance is either expressly or impliedly barred.
Explanation I & II ... ... ...
Section 2 contains definitions, some of which are as under :-
"(2) "decree" means the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. It shall be deemed to include the rejection of a plaint and the determination of any question within Section 144, but shall not include -
(a) any adjudication from which an appeal lies as an Appeal from an Order, or (b) any order of dismissal for default. "(8) "Judge" means the Presiding Officer of a Civil Court."
"(9) "judgment" means the statement given by the Judge on the grounds of a decree or order."
(14) "order" means the formal expression of any decision of a Civil Court which is not a decree;
"Section 3. Subordination of Courts :- For the purposes of this Code, the District court is subordinate to the High Court, and every Civil Court of a grade inferior to that of a District Court and every Court of Small Causes is subordinate to the High Court and District Court.
Section 4. Savings :- (1) In the absence of any specific provision to the contrary, nothing in this Code shall be deemed to limit or otherwise affect any special or local law 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.
(2) ... ... ... ... ...
Part VII of the Code contains the provisions for appeals. "Appeals from original decrees Section 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.
(2) to (4) .... ... ..... ....
"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.
(2) to (5) ... ... ... ... ...."
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 having the force of law or in any other law for the time-being in force, where any appeal from an appellate decree or order is heard and decided by a single Judge of a High Court, no further appeal shall lie from the judgment, decision or order of such single Judge in such appeal or from any decree passed in such appeals."
The objects and reasons for the above provision read as under :-
"Under the Letters Patent appeals lie, in certain cases, against the decision of a single Judge in a Second Appeal. Such appeal, in effect, amounts to a third appeal. For the purpose of minimising delay in the finality of adjudication, it is not desirable to allow more than two appeals. In the circumstances, new Section 100A is being inserted to provide that there should be no further appeal against the decision of a single Judge in a second appeal."
Section 100A of the Code which is in force from 1-7-2002 onwards as per the Code of Civil Procedure (Amendment Act) 1999 as further amended by the Amended Act of 2002 reads 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 having the force of law or in any other law for the time-being in force, where any appeal from an original or appellate decree or order is heard and decided by a single Judge of a High Court, no further appeal shall lie from the judgment and decree of such single Judge."
The objects and reasons for Section 100A of the C.P.C. as inserted by Amendment Act, 1999 read as under :-
"Justice Malimath Committee examined the issue of further appeal against the judgment of single Judge exercising even a first appellate jurisdiction. The Committee recommended for suitable amendments to Section 100A of the Code with a view to provide that further appeal in this regard shall not lie. The Committee also recommended for suitable enactment by Parliament for abolition of appeal to a Division Bench against the decision and order rendered by a single Judge of the High Court in a proceeding under Articles 226 or 227 of the Constitution. Clause 10 seeks to substitute a new Section 100A with a view to provide for no further appeal in the above cases."
Thereafter, however, in view of the representation from the Bar Associations, the provision for abolition of appeal to a Division Bench against the decision or order rendered by a single Judge of the High Court in writ proceedings has been done away with, consequently now with the C.P.C. 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 :-
(ff) to (h) ... ... .,. ... ...
(i) any order made under rules from which an appeal is expressly allowed by rules :
Provided that ... ... ... ... ...
(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.
(2) ... ... ... ... ...
106. What Courts to hear appeals :- Where an appeal from any order is allowed it shall lie to the Court to which an appeal would lie from the decree in the suit in which such order was made, or where such order is made by a Court (not being a High Court) in the exercise of appellate jurisdiction, then to the High Court.
General provisions relating to appeals
108. Procedure in appeals from appellate decrees and orders :- The provisions of this Part relating to appeals from original decree shall, so far as may be, apply to appeals
(a) from appellate decrees, and
(b) from orders made under this Code or under any special or local law in which a different procedure is not provided.
Part IX Special Provisions Relating to the High Courts not being the court of a Judicial Commissioner
116. Part to apply only to certain High Courts :- This Part applies only to High Courts not being the Court of a Judicial Commissioner.
117. Application of Code to High Courts - Save as provided in this Part or in Part X or in rules, the provisions of this Code shall apply to such High Courts.
120. Provisions not applicable to High Court in original civil jurisdiction :- (1) The following provisions shall not apply to the High Court in the exercise of its original civil jurisdiction, namely, Section 16, 17 and 20.
Order 49 contains special provisions for the procedure for Chartered High Courts, more particularly in respect of service of process of High Courts and the Rules for taking of evidence or recording of judgments and orders and in respect of certain matters specified in Rule 3 of Order 49. All these matters pertain to exercise of their ordinary jurisdiction or civil jurisdiction and none of them pertain to appellate or revision jurisdiction of the High Courts. In any case, this Court not being a Chartered High Court, no further reference is required to be made to the provisions of Order 49.
11. Clause 15 of the Letters Patent of Bombay High Court as applicable to this Court reads as under :-
"15. Appeal from the Courts of original jurisdiction to the High Court in its appellate jurisdiction :- And we do further ordain that an appeal shall lie to the said High Court of Judicature at Bombay from the judgment (not being a judgment passed 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 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 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 Council, as hereinafter provided."
In other words, as per the above clause, an appeal shall lie to the Division Bench of the High Court against the decision of a single Judge of a High Court where -
(a) it is a judgment;
(b) NOT being -
(i) a judgment passed in exercise of appellate jurisdiction in respect of a decree or order made in exercise of appellate jurisdiction by a Court subject to the superintendence of the High Court;
(ii) an order made in exercise of revisional jurisdiction; (iii) a sentence or order passed or made in exercise of the power of superintendence under Section 107 of the Government of India Act, 1915 (corresponding to Article 227 of the Constitution), or (iv) a sentence or order passed or made in exercise of criminal jurisdiction.
In case where the judgment of a single Judge of the High Court is rendered in exercise of appellate jurisdiction in respect of an appellate decree or appellate order made by a subordinate Court and where the single Judge declares that the case is fit one for appeal then the further appeal would lie to the Division Bench. In other words, Clause 15 even while providing for a "third" appeal before the Division Bench made it conditional upon the single Judge granting leave to appeal.
Clause 44 of the Letters Patent reads as under :-
"44. Powers of the Indian Legislature preserved :- And we do further ordain and declare that all the provisions of these Our Letters Patent are subject to the legislative powers of the Government-General in Legislative Council and also of the Governor-General in Council under Section seventy-one of the Government of India Act, 1915, and seventy-two of that Act, and may be in all respects amended and altered thereby."
12. An analysis of the aforesaid provisions yields the following result :-
(1) The Code of Civil Procedure, 1908 (C.P.C.) is an Act to consolidate and amend the laws relating to the procedure of the Civil Courts made by the Legislature competent to each such laws.
(2) Section 4 of the Code saves the provisions of a special or local law 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.
(3) Sections 96, 100, 104 and 105 themselves provide that the right of appeal against an appeal from any decree or order is "save as otherwise expressly 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 C.P.C., but in case of conflict between the C.P.C. and the Letters Patent, the C.P.C. shall prevail.
(7) Sub-section (2) of Section 104 of the C.P.C. expressly provides that no appeal shall lie from the order passed in appeal under Sub-section (1) of Section 104. Hence, even though a further appeal may be maintainable under the Letters Patent themselves before the Division Bench of this Court against the order of the single Judge in an Appeal from Order under Section 104(1), such appeal before the Division Bench is expressly barred by Sub-section (2) of Section 104 C.P.C..
(8) Section 100-A was inserted in the C.P.C. by the Amendment Act, 1976 w.e.f. 1-2-1977 in order to bar a "third" appeal before the Division Bench of the High Court against the decision of a single Judge in a second appeal. So also the doubt, if any, regarding non-maintainability of further appeal before the Division Bench against the decision of a single Judge in an Appeal from Order under Section 104 was removed by Section 100-A as inserted by the said Act of 1976, because the expression "appeal from an appellate decree or order" in Section 100-A meant "appeal from an appellate decree or appeal from order". The C.P.C. has never provided for nor contemplated any further appeal against a decision in an appeal from order. Section 104(2) specifically bars it and Section 108 C.P.C. also supports this interpretation.
Similarly, Section 100-A has been amended by the Amendment Acts of 1999 and 2002 in order to bar even a "second" appeal before the Division Bench against the judgment or order of a single Judge of the High Court in first appeal decided on or after 1-7-2002.
In other words -
(a) Where a second appeal under Section 100 C.P.C. or an appeal from order under Section 104 C.P.C. is decided by a single Judge of this Court on or after 1-2-1977, no further appeal under the Letters Patent lies against such decision of the single Judge before the Division Bench of this Court.
(b) Where a first appeal is decided on or after 1-7-2002 by a single Judge of this Court from original decree or order, no further appeal under the Letters Patent shall lie before the Division Bench of this Court.
(9) The non-obstante clause with which Section 100A C.P.C. begins is not in derogation of the express provisions in a special law conferring a substantive right of appeal against the decision of a single Judge of the High Court before a Division Bench of the same Court; because Section 4(1) as well as Sections 96, 100, 104 and 105 of the C.P.C. preserve such substantive right of appeal conferred by a special law.
(10) The Trade 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 C.P.C. 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 C.P.C. 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 Benches had earlier taken the view that despite what is stated in the C.P.C., internal appeals governed under Clause 15 of the Letters Patent are not affected by the provisions of Section 104 of the C.P.C. In other words, between the provisions of the C.P.C. and the clauses of the Letters Patent, the Letters Patent would prevail. The leading judgment laying down the above principle was Vaman Ravji Kulkarni v. Nagesh Vishnu Joshi, AIR 1940 Bom. 216.
A Division Bench of this Court followed the aforesaid decisions in Nahan Foundry v. Mohantal Khimjibhai & Sons, 1974 GLR 897 and held that even if Sub-section (2) of Section 104 bars any further appeal, the C.P.C. does not deal with the intra-Court appeals within the High Court from the decision of a single Judge to two Judges but it deals with appeals only from one Court to another and also held that the bar which Sub-section (2) of Section 104 would probably have otherwise attracted to appeal under Clause 15 of the Letters Patent, is removed by Sub-section (1) of Section 104 of the C.P.C.
15. We are not required to deal with the aforesaid decisions elaborately for the simple reason that the aforesaid view has been overruled by the Supreme Court. The interplay of the provisions of the C.P.C. and the clauses of the Letters Patent came up for consideration before the Supreme Court in Shah Babulal Khimji v. Jayaben D. Kania, AIR 1981 SC 1786. Although in that case the controversy was about maintainability of an appeal under Clause 15 of the Letters Patent against the decision of a learned single Judge of the Bombay High Court passing an order under Order 40, Rule 1 for appointment of a Court Receiver in an original suit entertained by the Court in the exercise of its original jurisdiction, the Apex Court referred to the entire scheme of the Letters Patent and the Code of Civil Procedure, and after an exhaustive review of the authorities, overruled the Bombay view in Vaman Ravji Kulkarni (supra) and held that, in case of conflict, the provisions of the C.P.C. override the provisions of the Letters Patent. To arrive at the said conclusion, the Apex Court gave the following reasons :-
(i) Although, the Letters Patent is a special law, certain provisions of the C.P.C. in the matter of procedure do apply to appeals against the decision of a single Judge of a High Court to a Division Bench which are treated by the Bombay 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 C.P.C. The Bombay High Court had misinterpreted and misconstrued the true nature and object of the C.P.C. 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 C.P.C. 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 to get rid of some of the provisions of the C.P.C. which is totally opposed not only to the aim and object of the Code but also to the very spirit of the Letters Patent.
(v) There is no non-obstante clause in the provisions of the Letters Patent to indicate that the provisions of the C.P.C., particularly Section 104 would not apply either expressly or by necessary intendment.
16. The principle enunciated by the Apex Court that in case of conflict between the provisions of a special law on the one hand and the provisions of C.P.C. and clauses of a Letters Patent of a High Court on the other hand, the former prevail over the latter was clearly enunciated in Union of India v. Mohindra Supply Co., AIR 1962 SC 256. Clause 10 of the Letters Patent expressly granted a right to appeal from one Judge of the High Court to a Division Bench, except in the specified cases. Sub-section (1) of Section 39 of the Arbitration Act, 1940 conferred a right of appeal before a single Judge of the High Court, but Sub-section (2) of Section 39 of the said Act expressly prohibited second appeal from an order passed in an appeal under Sub-section (1) thereof, except an appeal to the Supreme Court. The controversy before the Supreme Court was whether the appeal otherwise maintainable under Clause 10 of the Letters Patent of the Punjab High Court was barred by Sub-section (2) of Section 39 of the Arbitration Act. It was thus a converse case.
It was contended in the above case that what was prohibited was the second appeal under Section 100 of the C.P.C. and not the appeal under Clause 10 of the Letters Patent. Negativing the said contention, the Apex Court held as under :-
(i) Section 100 C.P.C. deals with appeals from appellate decrees and not with appeals from appellate orders.
(ii) The expression "second appeal" used in Section 39 of the Arbitration Act, 1940 means a further appeal from an order passed in an appeal under Section 39(1) and not an appeal under Section 100 C.P.C. The expression "second appeal" imports "a further appeal" i.e. numerically second appeal.
(iii) Sub-section (2) of Section 39 of the said Act bars appeals otherwise maintainable under Clause 10 of the Letters Patent also because the Letters Patent of the Punjab High Court are declared by Clause 37 thereof subject to the legislative power of the Governor-General in Council under the Government of India Act, 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 C.P.C. 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 in force. In the Arbitration Act, there is no provision similar to Section 4 of the C.P.C. which preserves powers reserved to Courts under special statues. There is also nothing in Section 39(1) of the Arbitration Act, 1940 which by implication reserves the jurisdiction under the Letters Patent to entertain an appeal against the order passed in arbitration proceedings. Therefore, insofar as the Letters Patent deals with appeals against the orders passed in arbitration proceedings, they must be read subject to the provisions of Section 39(1) and (2) of the Arbitration Act, 1940.
17. In Shankarlal Aggarwal v. Shankarlal Poddar, AIR 1965 SC 507, the Apex Court was concerned with the scope and expression of Section 202 of the Companies Act, 1913. Section 202 read as under :-
"202. Appeals from Orders :- Re-hearings of, and appeals from, any order or decision made or given in the matter of the winding up of a Company by the Court may be had in the same manner and subject to the same conditions in and subject to which appeals may be had from any order or decision of the same Court in cases within its ordinary jurisdiction."
It was contended that the last words of the Section commencing from "subject to the same conditions ..... within its ordinary jurisdiction" restricted the right of appeal conferred by the first limb of the Section to those which may be preferred under Clause 15 of the Letters Patent in the case of a judgment of a single Judge of the High Court. The Apex Court negatived the said contention and held that the second part of the Section which refers to "the manner" and "the conditions subject to which appeals may be had" merely regulates the procedure to be followed in the presentation of the appeal and of hearing them, the period of limitation within which the appeal is to be presented and the forum to which appeal would lie and does not restrict or impair the substantive right of appeal which has been conferred by the opening words of that Section.
We have referred to the aforesaid decision to emphasize that when Section 109(8) of the Trade Marks Act provides that the provisions of the C.P.C. shall apply to appeals before a High Court under the Trade Marks Act (T.M. Act), this is clearly made "subject to the provisions of this Act (T.M. Act) and all the rules made thereunder". Hence, the provisions of Sub-section (5) of Section 109 of the T.M. Act, which is a special law on the subject, cannot be treated as impliedly or even expressly repealed by the provisions of Section 100A of the C.P.C. because the T.M. Act is a special law contemplated by Section 4(1) of C.P.C., and therefore, the C.P.C. 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 C.P.C., and therefore, the entire exercise is misconceived as Section 100-A 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 Corporation Act. Against the decision of the Small Causes Court in such appeal, an appeal lies to the High Court under Section 218-D(1) of the Act. The question arose whether a further appeal could lie against the decision of a single Judge in an appeal under Section 218D(1) of the Act before the Division Bench of the High Court under the Letters Patent. The Bombay High Court held that such an appeal before the Division Bench was barred by Section 100A of the C.P.C. Confirming the said decision, the Supreme Court observed as under :-
".... it is obvious that the appeal filed by the respondent under Section 218D of the Act was a second appeal against the appellate order made by the Addl. Chief Judge, Small Causes Court. Under the Bombay Municipal Corporation Act, no further appeal has been provided against the judgment of a learned single Judge of the High Court deciding the second appeal under Section 218D of the Act against an appellate order of the Chief Judge of the Small Causes Court passed under Section 217(1) of the Act. Section 100A of the Code of Civil Procedure, which was introduced by the Amendment Act, 1976, specifically bars any further appeal in such cases.
This Section has been introduced to minimise the delay in finality of a decision. Prior to the enactment of the above provision, under the Letters Patent, an appeal against the decision of a single Judge in a second appeal was, in certain cases, held competent, though under Section 100 of the Code of Civil Procedure there was some inhibition against interference with the findings of fact. The right of taking recourse to such an appeal has now been taken away by Section 100A of the Code of Civil Procedure (supra). Since, an appeal under Section 217(1) of the Act is a first appeal in a second forum/Court and an appeal under Section 218D of the Act is the second appeal in the third forum/Court, no further appeal would be competent before the fourth forum/Court in view of Section 100-A of the Code of Civil Procedure (supra)."
This decision necessarily proceeds on the principle that in absence of any right of appeal conferred by a special statute, the provisions of Section 100A of the C.P.C. will hold the field to bar any further appeal, notwithstanding anything contained in the letters Patent or any such general law, but where the special Act itself provides for a further 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 C.P.C., 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 Company 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 trade marks whereas the C.P.C. is a general rule of procedure. Section 97 of the T.M. Act merely confers powers of a Civil Court on the Registrar of trade marks for the purpose of receiving evidence and for other procedural matters, but there is no indication in any provision of the T.M. Act to make appeals under the T.M. Act dependent upon their availability under the C.P.C. Once, it is held that the T.M. Act is a special law and C.P.C. is a general law, the settled legal position is that a prior particular or special law is not readily held to be repealed by a latter general enactment. The particular or special law deals only with a particular subject, and therefore, the reconciliation is normally possible between a prior particular Act and a latter general Act, and so the particular Act is construed as an exception or qualification of the general Act.
In Nicolle v. Nicolle, 1922 (1) AC 284, Lord Philimore laid down the following principles :-
"It is a sound principle of all jurisprudence that a prior particular law is not easily to be held to be abrogated by a posterior law, expressed in general terms and by the apparent generality of its language applicable to and covering a number of cases, of which the particular law is but one. This, as a matter or jurisprudence, as understood in England, has been laid down in a great number of cases, whether the prior law be an express statute, or be the underlying common or customary law of the country. Where general words in a latter Act are capable of reasonable and sensible application without extending them to subjects specially dealt with by earlier legislation, that earlier and special legislation is not to be held indirectly repealed, altered, or derogated from merely by force of such general words, without any indication of a particular intention to do so."
The above principle came to be applied by the Supreme Court in Paradip Port Trust v. Their Workmen, AIR 1977 SC 36.
Section 36(4) of the Industrial Disputes Act, 1947 provides that a party cannot be represented by a legal practitioner before a labour Court or Tribunal except with the consent of the other parties and with the leave of the labour Court or Tribunal. Section 30 of the Advocates Act, 1961 provides that every Advocate shall be entitled as of right to practise in all Courts and before any Tribunal. There is, therefore, an apparent conflict between the two provisions. 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 Advocate 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 C.P.C. 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. v. Rupa Chemicals, 1986 (1) GLR 101 : AIR 1986 Guj. 156, is required to be considered very carefully.
21.1 The question of maintainability of Letters 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 Court of Panchmahals at Godhra. The plaintiff moved an interim injunction application Exh. 5 under Order 39. Rules 1 and 2 read with Section 151 of the C.P.C. praying for interim injunction pending the suit against the respondent-defendants. After hearing the parties the learned trial Judge dismissed the said application. Being aggrieved by the said order, the plaintiff preferred Appeal from Order under Order 43, Rule 1 which came to be dismissed by a learned single Judge of this Court on 1-7-1985. Against the said order, the plaintiff preferred Letters Patent Appeal under Clause 15.
21.2 The Court held that Sub-section (2) of Section 104 clearly provided that no appeal shall lie from any order passed in an appeal under Section 104. The appeal in question was filed under Section 104(1)(i). Therefore, Sub-section (2) of Section 104 clearly barred any further appeal against the order of the learned single Judge in an appeal from order under Section 104(1)(i) read with Order 43, Rule 1.
After referring to the categorical pronouncement of the Supreme Court in Shah Babulal Khimji AIR 1981 SC 1786 on Section 104 C.P.C. read with Order 43 vis-a-vis Clause 15 of the Letters Patent, the Division Bench in Madhusudan Vegetable's case (supra) held that the decision of the Division Bench of this Court in Nahan Foundry, 1974 15 GLR 897, was rendered otiose. The said decision shall be treated as impliedly overruled by the Supreme Court decision in Shah Babulal Khimjibhai v. Jayaben (supra).
21.3 The Division Bench in Madhusudan Vegetables case (supra) thereafter gave an additional reason in support of the view that Section 104(2) barred any further appeal against the decision of the learned single Judge in an Appeal from Order under Section 104(1)(i) read with Order 43, Rule 1. It is that additional reasoning which did not commend itself to the Division Bench which has made the present reference.
21.4 We are inclined to agree with the interpretation placed by the Division Bench in Madhusudan Vegetables case (supra) on Section 100A C.P.C. The expression "any appeal from an appellate decree or order" as contained in Section 100-A as inserted by the Code of Civil Procedure (Amendment) Act, 1976 (which remained in force from 1-2-1977 to 30-6-2002) meant "an appeal from an appellate decree or 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 100-A bars Letters Patent Appeals against decisions of single Judge of the High Court while exercising appellate jurisdiction under such special statutes and clarified in the said case of Madhusudan Vegetables Products Co. Ltd., (supra) that the Court was only concerned with the short question whether Section 100-A of the C.P.C. bars Letters Patent Appeal against decisions of the learned single Judge in exercise of his powers under Section 104 read with Order 43, Rule 1 of the C.P.C. and answered the question by laying down that See. 100-A does expressly bar such a Letters Patent Appeal.
22. Our discussion in the preceding Paragraphs also indicates that Section 100-A bars Letters Patent Appeal against the decision of a single Judge of a High Court in respect of such appeals arising out of the appellate decrees and orders of the Courts subordinate to the High Court, but Section 100-A does not purport to take away the substantive right of appeal conferred by a special statute like the Trade Marks Act.
23. That brings us to the decision of another Division Bench of this Court in Jaimin J. Desai v. Gujarat Chamber of Commerce & Industry, 2000 (1) GLR 920 : 2000 (2) GLH 22 : AIR 2000 Guj. 139, which is heavily relied upon in support of the preliminary objection.
23.1 In that case, the question of maintainability of Letters Patent Appeal under Clause 15 of the Letters Patent against the order passed by the single Judge of the High Court under Section 104(1)(i) read with Order 43, Rule 1 came up for consideration in the context of the following facts :-
The plaintiff filed a suit in the City Civil Court, Ahmedabad for perpetual injunction challenging the decision of the Gujarat Chamber of Commerce & Industry revising the membership fees for admission and subscription. In the application for interim injunction under Order 39, Rules 1 and 2, the City Civil Court restrained the defendant-Chamber from implementing and recovering the admission and membership fees as per the revised rates. Feeling aggrieved by the said order, the defendant-Chamber filed an Appeal from Order before a learned single Judge of this Court. Admittedly, the said appeal was filed under Section 104(1)(i) read with Order 43, Rule 1(r) of the C.P.C. The learned single Judge modified the order of the trial Court and gave certain directions which were to operate during pendency of the suit and the hearing of the suit was also directed to be expedited. Against the said order of the learned single Judge in the above Appeal from Order, the original plaintiff filed Letters Patent Appeal under Clause 15 of the Letters 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 Articles 225, 226 and 227 of the Constitution, the Division Bench in Jaimin Desai's case 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 :-
"24. 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 intra-Court appeal in causes hoard in the exercise of its original civil jurisdiction by the High Court acting by its single Judge's Court, all other appeals being differently provided for.
..... ........... ............. ............ ...........
26. Merely because a single Judge has passed an order or a judgment in exercise of his appellate jurisdiction, the same cannot be questioned before the Division Bench invoking the aid of Clause 15 of the Letters Patent of Bombay. The parameter which is, specifically, prescribed in Clause 15 is very clear that an appeal against the judgment of a single Judge would lie before the Division Bench of the same High Court under Clause 15 of the Letters Patent provided the impugned judgment is in exercise of the original jurisdiction and not appellate jurisdiction. ......
61. The question which requires to be considered and the main anxiety of the Court should be to see as to the nature of jurisdiction under which the learned single Judge has recorded the impugned order. If the Court finds that the impugned order is referable to, or is attributable to, the powers exercisable not under the original jurisdiction, then in that case, in our opinion, resort to second appeal with the help of Clause 15 is not permissible. ... ... ..."
23.3 Ultimately, the Court arrived at the following conclusion in Para 83 of the judgment as reported in Gujarat Law Herald (at page No. 949 para 66 of GLR):-
"83. After having taken into account the overall picture emerging from the record and host of the case-law and the catalogue of circumstances, we have no hesitation in holding that insofar as the appealability of Clause 15 of Letters Patent of Bombay is concerned, against the order of the learned single Judge in an Appeal against the Order under the provisions of Order 43, Rule 1(r) read with Section 104(2) and Section 100-A and Clause 15 read with 44 of the Letters Patent, the same is not maintainable and the preliminary objection raised on behalf of the respondent that against the impugned order Letters Patent Appeal is not maintainable under Clause 15 of the Letters Patent of Bombay is evidently strong, sound and sustainable. ... ..."
24. In our view, in Jalmin Desai's case, (supra) the Division Bench of this Court was only concerned with the question about maintainability of Letters Patent Appeal against the order of a single Judge of this Court in an appeal from order under Section 104(1) read with Order 43, Rule 1.
In view of the decision of the Apex Court in Shah Babulal Khimji v, Jayaben D Kania, AIR 1981 SC 1786 and the said decision as explained by another Division Bench of this Court in Madhusudan Vegetable Products Co. Ltd. v. Rupa Chemicals, AIR 1986 Guj. 156, the conclusion in Jaimin Desai's case (supra) that the Letters Patent Appeal against the decision of a single Judge of this Court in a 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 Jalmin Desai's case 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 C.P.C. Amendments Act, 1999 and 2002 (that is, by 30th June, 2002) are not rendered incompetent on account of the aforesaid observations which were not called for in the first instance. It is only where the first appeal is decided by a single Judge of this Court on or after 1-7-2002 (that is the date of commencement of the C.P.C. Amendment Acts, 1999 and 2002) that a further appeal before the Division Bench of this Court (i.e. Letters Patent Appeal) would be barred against such decision of a single Judge of this Court.
25. The analysis of the statutory provisions in the earlier part of this judgment and the discussion of the case-law is more than adequate to hold that there is no substance in the first contention raised on behalf of the respondents in support of the preliminary objection to maintainability of the appeals. Section 100A of the C.P.C. was inserted by the Amendment Act of 1976 w.e.f. 1-2-1977 in order to bar a "third" appeal before the Division Bench of the High Court against the decision of a single Judge in the second appeal. It was only recently by the Amendment Acts of 1999 and 2002 that Section 100A has been amended to bar even a "second" appeal against the judgment or order of a single Judge of the High Court, in cases where such appeal is decided by the single Judge on or after 1-7-2002. Since both the appeals in question under Sub-sections (2) and (4) of Section 109 of the T. M. Act were decided by the learned single Judge on 22-6-1998 and 6-8-1998, there can be no question of applying the provisions of Section 100A as amended by the C.P.C. Amendment Acts of 1999 and 2002.
Even otherwise the right of appeal before a Division Bench of this Court under Sub-section (5) of Section 109 of the T.M. Act having been conferred by a special law expressly saved by Section 4(1) of the C.P.C., the expression "notwithstanding anything contained in any other law for the time-being in force" in Section 100A of the C.P.C. even after its amendment in 1999 and 2002 does not affect or limit the substantive right of appeal from the decision of a single Judge of this Court to a Division Bench of this Court, where such right is conferred by a special substantive law and not by a general law of procedure. The provisions of Section 100A C.P.C,, therefore, do not override the express provisions of Sub-section (5) of Section 109 of the T.M. Act.
26. Coining to contention No. (ii), the same is to be stated only to be 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 100-A of the C.P.C. 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 of this Court in appeals under Sections 96, 100 and 104 of the C.P.C. as explained in Para 12 of this judgment.
(ii) Where a special law provides for appeal against a decision of a single Judge of this Court to a Division Bench of this Court, the provisions of such special law will prevail because Section 100-A of the C.P.C. is a part of general law of procedure which does not take away the substantive right of appeal provided by a special law, not withstanding the non-obstante clause with which Section 100A commences.
(iii) The appeal before a Division Bench of this Court under Sub-section (5) of Section 109 of the Trade and Merchandise Marks Act, 1958 against the order of the single Judge of this Court under Sub-sections (2) and (4) of Section 109 of the Trade and Merchandise Marks Act is maintainable notwithstanding the provisions of Section 100-A of the C.P.C., whether as inserted by the Code of Civil Procedure (Amendment) Act, 1976 (as in force from 1-2-1977 to 30-6-2002) or as amended by the Code of Civil Procedure (Amendment) Acts, 1999 and 2002 with effect from 1-7-2002 onwards.
(iv) The decision of the Division Bench of this Court in Nahan Foundary v. Mohanlal Khimjibhai & Sons, 1974 GLR 897 has already been impliedly overruled by the Supreme Court in Shah Babulal Khimji v. Jayaken, AIR 1981 SC 1786.
(v) The decisions of the two Division Benches of this Court in Madhusudan Vegetables Products Co. Ltd. v. Rupa Chemicals, 1986 (1) GLR 101 : AIR 1986 Guj. 156 and in Jaimin J Desai v. G.C.C.I., 2000 (1) GLR 920 ; AIR 2000 Guj. 139 : 2000 (2) GLH 22 laying down that appeals are not maintainable against the orders passed by the single Judge of the High Court under Section 104 of the C.P.C. are to be confined to non-maintainability of appeals under Clause 15 of the Letters Patent only. The said decisions are not to be treated as applicable to appeals provided before the Division Bench of this Court under any special or local law such as the appeals provided under Sub-section (5) of Section 109 of the Trade and Merchandise Marks: Act, 1958.
29. In view of the above conclusions, the preliminary objection against maintainability of the O.J. Appeals under Sub-section (5) of Section 109 of the Trade and Merchandise Marks Act, 1958 is overruled. The appeals shall now be placed before the Division Bench taking up such O.J. Appeals as per the roster.