Madhya Pradesh High Court
Aleem vs Mohd. Sareef Khan on 9 September, 2024
1 FA-709-2024
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
FA No. 709 of 2024
(ALEEM AND OTHERS Vs MOHD. SAREEF KHAN )
Dated : 09-09-2024
Shri Pramendra Singh Thakur - Advocate for the Appellant.
Shri Sanjeev Kumar Mishra - Advocate for the Respondent No.1.
The case is heard on Office objection relating to maintainability of the present appeal as the Office has noted objection that Miscellaneous Appeal under Section 91 of Trademarks Act should be filed.
The present appeal challenges judgment and decree dated 20.03.2024 whereby the trial Court has allowed the judgment and decree in suit filed by the present respondent/plaintiff.
Learned counsel for the appellant submits that as per Section 91 of Trade Marks Act, appeal would lie against an Order or decision of the Registrar under this Act and since the judgment/Order which is under challenge has been passed by the District Court, therefore, no remedy under Section 91 of Trade Marks Act, filing M.A. would lie to the present appellant. It is further pointed out that a suit was filed and decree has been passed by exercising the jurisdiction as per Section 134 and 135 of Trade Marks Act, 1999. It is not disputed that Trade Marks Act, 1999 does not provide for any further remedy of appeal against the judgment to be passed in suit under Section 134 and decide under Section 135 of Trade Marks Act, 1999. By placing reliance on provisions of M.P. Civil Courts Act, 1958, Signature Not Verified which has been enacted by State Legislature after receiving assent from the Signed by: KRISHNA SINGH Signing time: 14-09-2024 4.39.31 PM 2 FA-709-2024 President, it is contended that Section 13 (1) of the said Act provides as under:-
"13. Appellate Jurisdiction.-(1) Save as otherwise provided by any law for the time being in force, appeal from decrees or orders of Courts exercising original jurisdiction shall lie as follows-
(a) from a decree or order of the Court of the Civil Judge, Junior Division or of the Civil Judge, Senior Division to the Court of the Principal Judge;
(b) from a decree or order of the Court of the District Judge to the High Court.
Explanation.-The Court of the Civil Judge or the Court of the Principal District Judge shall include an Additional Judge to that Court."
It is argued that in view of this provision of law, appeal from Order or decree of Court exercising any original jurisdiction shall lie before the Principal District Judge and an appeal from decree or Order of District Judge in exercise of original jurisdiction shall lie before the High Court. It is thus, contended that against the judgment and decree passed under Section 135 of Signature Not Verified Trade Marks Act, 1999, appeal shall lie before the High Court in view of Signed by: KRISHNA SINGH Signing time: 14-09-2024 4.39.31 PM 3 FA-709-2024 Section 13 of M.P. Civil Courts Act, 1958.
Learned counsel for the respondent objected to the said proposition stating that Chapter 2 Rule 8 of M.P. High Court Rules and Orders, 2008, 13 categories of First Appeal have been laid down and appeal under Trade Marks Act, 1999 has not been laid down as a category of First Appeal. It is further contended that even as per Chapter 2 Rule 10, the said Rules do not contemplate an M.A. to be filed arising out of an order or judgment passed under Trade Marks Act, 1999.
It is thereafter contended by learned counsel for the appellant that if such construction of the High Court Rules is made, then the appellant would be entirely remediless.
Upon hearing the contentions of the rival parties, it is seen that as per Trade Marks Act, 1999, appeal under Section 91 would not lie against an order or judgment passed by the District Court in terms of Section 134 or 135 of Trade Marks Act, 1999.
Learned counsel for the appellant has contended that no remedy under the said M.A. is laid down against the judgment passed by District Court under Section 91 of the Trade Marks Act, 1999. Therefore, the provisions of Civil Courts Act, 1958 would apply which gives Civil Appellate jurisdiction to the High Court against the original decree or order of the Court of District Judge.
Learned counsel for the appellant has relied on Section 96 of C.P.C. that since the impugned judgment passed by the District Judge is appended Signaturewith a decree, therefore, an appeal under Section 96 would lie from the said Not Verified Signed by: KRISHNA SINGH Signing time: 14-09-2024 4.39.31 PM 4 FA-709-2024 judgment and it has to be registered as First Appeal in view of Chapter 2 Rule 8 of High Court Rules and Orders, 2008. However, Section 135 of Trade Marks Act, 1999 only refers to an order of injunction or damages and does not contemplate any decree on the basis of judgment and thus, the judgment of the District Judge would amount to Order. Section 96 of C.P.C. would not apply because appeal would lie from original decree and in the present case though decree has been drawn but Section 135 (2) of the Trade Marks Act, 1999 injunction which will be granted by the District Court would amount to Order. Therefore, the reliance on Section 96 is not substantiated. However, under Chapter 2 Rule 9 of the M.P. High Court Rules, 2008, the following has been provided for registration of Miscellaneous Appeals:-
9. Miscellaneous Appeal - Ordinarily following civil appeals shall be registered as a Miscellaneous Appeal-
(1) an appeal
under section 32 of the
M.P. Accommodation
Control Act, 1961;
(2) an appeal
under section 104 read
Signature Not Verified with order 43 rule 1 of
Signed by: KRISHNA
SINGH
Signing time: 14-09-2024
4.39.31 PM
5 FA-709-2024
the Code of Civil
Procedure, 1908;
(3) an appeal
under section 16 of the
Electricity Regulatory
Commission Act, 1998;
(4) an appeal
under section 82 of the
Employees State
Insurance Act, 1948;
(5) an appeal
under section 47 of the
Guardian and Wards
Act, 1890;
(6) an appeal
under section 173 of the
Motor Vehicles Act,
1988;
(7) an appeal
under section 75 of the
Provincial Insolvency
Act, 1920;
(8) an appeal
Signature Not Verified under section 23 of the
Signed by: KRISHNA
SINGH
Signing time: 14-09-2024
4.39.31 PM
6 FA-709-2024
Railways Claims
Tribunal Act, 1987;
(9) an appeal
under section 11 of the
Requisition and
Acquisition of
Immovable Properties
Act, 1952;
(10) an appeal
under section 299 or 384
of the Indian Succession
Act, 1925;
(11) an appeal
under section 41 of the
M.P. Vidyut Sudhar
Adhiniyam, 2000;
(12) an appeal
under section 30 of the
Workmen
Compensation Act,
1923; or
(13) any other
appeal of civil nature,
Signature Not Verified provided or permissible
Signed by: KRISHNA
SINGH
Signing time: 14-09-2024
4.39.31 PM
7 FA-709-2024
against an order under
any other law for the
time being in force.
From perusal of Section 13 of Civil Courts Act, 1958, it is clear that appellant has remedy of Rule 9 (13) of Chapter 2 of M.P. High Court Rules, 2008 readwith Chapter 135 of Trade Marks Act, 1999.
Learned counsel for the Appellant is directed to convert and carry out necessary corrections in the memo of appeal to convert the same into Miscellaneous appeal under M.P. Civil Courts Act, within ten days.
List for hearing on admission and stay application in the week commencing 23.09.2024.
(VIVEK JAIN) JUDGE veni Signature Not Verified Signed by: KRISHNA SINGH Signing time: 14-09-2024 4.39.31 PM