Shiva Jute Baling Ltd. v. Hindley & Co. Ltd.

Mukherjta C. J. Original Side of the Calcutta High Court complaining

of delay on the part of the appellants in prosecuting the appeal. It was stated inter alia that although ,six months had elapsed since special leave was granted by this Court, the respondents were not served with notice of the admission of the appeal and no steps were taken by the appellants to get the records printed or transmitted to this Court. In reply to this letter the Registrar informed the respondents' Solicitors that according to the practice of the Cal-cutta High Court it was incumbent on the appellants to make a formal application to the Appellate Bench of the Court for declaring the appeal finally admitted, and this was to be done on notice to the other parties under Order XL V, rule 8 of the Civil Procedure Code and on filing in Court a copy of the order of the Supreme Court granting special leave to appeal as well as the application upon which such order was made. Unless and until an order was made by the High Court declaring the appeal to be admitted. no action could be taken by the office in the matter.

Thereupon on the I Ith of January I 955 an appli-cation was filed by the appellants praying that leave might be given to them to file the certified copy of the special leave petition and also that of the order passed upon it and that the appeal might be finally admitted. This application came up for hearing be-f0re the learned Chief Justice and Lahiri, J. of the Calcutta High Court and on the 20th of January 1955 the learned Judges made the following order:

. "In this matter special _leave to appeal to the Supreme Court was )l:ranted by that Court on the 25th May 1954. On the 21st June following, the Ap-pellant furnished the necessary security. It was then the dutv of the Appellant to take the nece3sary steos for the final admission of the aooeal in order that the nrcparation of the Paper Book might thereafter be undertaken. Under the Rules and practice of this 1955 Cou!'t the step to be taken is that the Appellant to Shiva Jllle the Supreme Court should make an application for Bal;,,, Lid. leave to file the certified copy of the petition for Spe-v. Hindky u11d cial Leave and also a certified copy of the order grant-Co. l.td. ing Special Leave which have been filed along with J. the present application .................... . Nukherjea C.

When the matter came up for hearing on the last occasion we enquired whether the Appellants had any explanation to give for the delay which had occurred. It was said that the certified copy of the application for Special Leave had been obtained only recently. It was however not explained why when an application for a certified copy of the order was made a similar application for a certified copy of the petition also could not be made.

In all the circumstances we consider it right that the disposal of the present application should stand over for a month in ord.er that the respondents may take such steps as they desire to take before the Supreme Court".

The above facts and order of the High Court were communicated to the Registrar of this Court by Shri Rajinder Narain, Advocate for the respondents, by his letters dated the 17th and 31st of January 1955 and on the basis of the facts stated above, he requested that action should be initiated by the Registrar against the appellants for non-prosecution of the ap-peal. The Registrar told the learned Advocate that he had not received any report from the High Court regarding any ]aches on the part of the appellants and without any such report, it was not possible for him to take any action in the matter. The Advocate himself, it was said, was quite at liberty to make a formal application to the Court in such way as he considered proper. The views thus expressed by the Registrar of this Court were communicated by him to the Registrar of the High Court, Originai Side, Calcutta. On the 4th March 1955 Shri Rajinder Narain filed a formal petition addressed to the Regis-tr:;r allc~!ing inordinate delay on the part of the ap-pclLrnts in filing in the High Court certified copies of 1955 lbc Special Leave petition and the order made by this Shi-va Jute <'iwrt thereupon and praying that summons might be lln/i#J! "· Ltd. issued to the appellants to show cause why the appeal Hindley aud should not be dismissed for non-prosecution. Before

Co. Ltd. the Registrar could take any further steps in the Muk!terjea C.J; matter, the application of the appellants for final

admission of the appeal made in the High Court came up for further consideration before the Appellate Bench consisting of the Chief Justice and Mr. Justice Lahiri and on the 7th March, l 955 the learned Judges made an order directing, for the reasons given therein, adjournment of the application for admission of the :appeal before them, sine die pending orders which this Court might pass on the application of the respon-dents. The application of the respondents which pur-ports to have been made under Order XTIJ. rule 13 of the Supreme Court Rules was referred by the Registrar for orders to the Court and it has now come up for hearing before us.

Shri Rajinder Narain appearing in support of the petition has contcndcd before us that the appellants wert; guilty of serious ]aches inas111ud1 as they did nol file in' the High Court, till 8 months after the special leave was granted, 1.:opics of the special leave petition as well as of the order passed Ul'Oll it; nor did they make an application to the Appellate flcnch for admission of the appeal without which no further step& could be taken in the matter of printing and transmission of the record. As the appellants could not give any satisfactory explanation for this inordi-nate delay on their part, the special leave, it is arguecl, should be rescinded. Mr. Chatterjee, who ap-peared for the appellants, has contended on the other hand that in a case like the one before us where the appeal has come up to this Court by special leave and not by a certificate granted by the High Court. there was no duty cast upon the appellants to make a for-mal application in the High Court for final admission of the appeal or to file therein certified copies of the special leave petition and the o.-der made thereupon. His argument is that under Order XXXH. n•le 9 of the Ori.l!inal Side Rules of the (\1k11tt;1 lligh Court. ;1 Supreme Court appeal must be deemed to have been 1955 admitted by the very order of this Court granting Shiva Jute special leave and as soon ~s the appellants have car-Dalii~ Ltd. ried out the directions of the Supreme Court regarding Hindley and furnishing of security or making of other deposits as co. Ltd. the case may be, it is incumbent upon the Registrar lluklleriea c. 1. to issue a notice of the admission of the appeal for service upon the respondents. Such notice indeed has got to be served by the appellants' attorney; but as no notice was at all issued by the Registrar in the present case as is contemplated by rule 9 of Order XXXII of the Original Side Rules of the Calcutta High Court, no blame could attach to the appellants for not taking further steps in the matter. The con-tention of Mr. Chatterjee appears to u,s to be well-founded and as it seems to us that doubts have arisen at times regarding the precise procedure to be followed in cases where an appeal comes to this Court by special leave granted under article 136 of' the Consti-tution, it is necessary to examine the provisions bearing upon it as arc contained in the Rules of the Supreme Court or of the High Court concerned read along with the relevant provisions of the Ci"Vlil Pro- :cedurc Code.

Ordinarily when a High Court grants a certificate giving leave to a party to appeal to this Court, it is that Court which retains full control and juris<liction over the subsequent proceedings relating to the prose-cution of the appeal till the appeal is finally admitted.

It is for the High Court to see that its directions are carried out regarding the furnishing of security <1>r the making of deposit and when these conditions are ful- ·filled, it has then to declare the appeal finally admitted undet Order XLV, rule !S of the Civil Procedure Code.

The jurisdiction of the Supreme Court begins after the appeal is finally admitted. When however the appeal comes to this Court on the strength of a special leave granted by it, the position is different. In such cases the order of the Supreme Court granting special leave by itself operates as an admission of the appeal as soon as the conditions in the ord~r relating to fur-1955 nishing of security or making of a deposit arc complied Shi11t1 Jute with. T'hat this is the true position will be clear from Buliug Ltd. the procedurg1l provisions contained in the Rules of

v. the Supreme Court as well as of the Original Side of Hindley co. and

ltd. the Calcutta High Court. Order XIII, rule 8 of the l\fukllcrjca C. Supreme Court Rules lays down:

J.~• "After the grant of special leave to appeal by the Court, the Registrar shall transmit a certified copy of the order to the court or tribunal appeaied from"'

Rule 9 then says:

"On receipt of the said order, the court or tribu-nal appealed from shall, in the absence of any special directions in the order, act in accordance with the provisions contained in Order XL V of the Code, so far as applicable".

It is to be noted here that although this rule does refer tc· the provisions of the Order XL V of the Civil Procedure Code, these provisions l(Lre to be followed only so far as they are applicable. lt is surely the duty of the High Court to sec that security is furnished or a deposit is made in accordance with the directions of the Supreme _Court and these directions are to be found in the order of the Supreme Court .which the Registrar is bound to transmit to the High Court under Order Xlll, rule 8 of our Rules. We do not think it is necessary for the appeliants to Ille afresh a copy of the Supreme Court order or the peti-tion upon which it was made in order that they may form part of the record of the Supreme Court appeal. They would come in the record as soon as they arc transmitted by the Registrar in accordance with the rnlc of our Court mentioned above and would have to he included in the Paper Book when it is printed, The Registrar of the High Court undoubtedly took thes<: orders as part of the record without the appel-lants' filing them afresh, for he accepted the security and deposit of other moneys from the appellants on th~ basis of these orders. If there was any failure on the part of the appellants to furnish the security or to m~ke the deposit in the way indicated in the order r.1' the Supreme Court. it would have been the dutv nf the Registrar of the High Comt to intim;,fe these

facts to the Registrar of the Supreme C0urt and the !955 latter thereuoon could take steps for revoking the Shim .lute special leave-· as is contemplated by Order XllI, Baling Ltd. rule 12 of our Rules. ln our opinion, it is also v. Hindlev and not necessary for the apoellants to make a formal C11. itd. application for admission of the appeal in cases where ¥,ukherjea spci.:i<tl leave has been granted by the Supreme Court;

and thi~ appears clear from the provisions of Order XXXIL rule 9 of the Original Side Rules of the Cal-c1itta High Court which runs as follows:

"9. On the admission of an appeal to the Supreme Court whether by the order of this Court under Order XLV, rule 8 of the Code, or by an order of the Supreme Court giving the appellant Special Leave to Appeal, but subject in the latter case to the carrying out of the directions of the Supreme Court as to the security and the deposit of the amount re-qt!ired by rule 5, notice of such admission shall be issued by the Registrar for service on the respondent on the record, whether he shalt have appeared on the hearing of the application for a certificate under Order XLV. rule 3 of the Code, or not. Such notice shall be ,served by the attorney for the appellant and an A Jtidavit of due service thereof shall be filed by such attorney immediately after such service"_ Toe opening words of this rule plainly indicate that there could be admission of ,appeal either by order of the High Court under Order XLV, tule 8 of the Civil Procedure Code or by the order of the Supreme Court 1tself giving special leave to appeal. (As the order :granting special leave itself lays down the conditions to he fulfilled bv the aooellar1ts. the admission will be re_garded as finaJ only when the directions are complied \v1th and as soon as this is done it would be the dutv of the Registrar to issue a notice of the admission o-f the appeal for service upon ~he respondents). This r:otice i~ to be served by the attorney for the appel-lants and an affidavit of due service shall be filed bv hini immediately after the service is effected. ·

Tn the present case the Registrar. Original Side of th,~ Cakutta High Court should have issued a notice of

1955 the admission of the appeal to be served upon the Shh•a Jute respondents as soon as the security for costs and other Baling ltd. deposits of money were made by the appellants. This

v. was not done as the procedure to be followed was not Hindley and

Co. Lrd. correctly appreciated. It is· true that the appellants Mukherjea C. J. remained idle for a considerable oeriod of time even

after they furnished security ancf did not take any steps towards printing of the record. But as there was an initial irregularity in the matter of issuing a notice under Order XXXIJ, rule 9 of the Original Side Rules of the Calcutta High Court, we are unable to hold that the appellants were guilty of any !aches for which the special leave deserves to be rescinded. The resnlt is that the application of the respondents is dismissed. The Registrar, Original Side of the Calcutta High Court, will now issue a notice under Order XXXrI. rule 9 of the Original Side Rules and prompt steps should be taken by the appellants towards nrinting and transmission of the record to this Court. We make no order as to costs of this application.

1955 THE REGISTRAR OF TRADE MARKS

April 15 v.

ASHOK CHANDRA RAKHIT LTD.

[ s. R. DAS, BHAGWATI and SINHA JJ.]

The Trade Marks Act 1940 (Act V of 1940), s. 13--Meanin}? and scope of-Registration subiect to disclaimer-S. 76-Appeal to the High Court-When can the Hiflh Court interfere-Registrar, discretion of-Proper approach in such a case.

The exercise of the power conferred on the Registrar by s. 13 of the Trade Marks Act is alwavs a matter of discretion to be exercised, not capriciously or arbitrarilv but, according to sound principles laid down for the exercise of all judicial discretion.

The existence of the two jurisdictional facts referred to in clauses (a) and lb) of s. 13 and the finding that the trade mark con-tains pans or matters to the: exclusive use of which the proorietor is not entitled does not condude the matter and it must further be cmblished that some good !?l'OUnd exists for the imposition of n disclaimer and the tribunal will exercise the discretionary power for good cause shown.

CIVIL APPELLATF JURISDICTION: In the matter of !Petition for Special Leave to Appeal No. 230 of 1953.

Rajinder Narain for the Respondents.

N. C. Chatterjee (Sukumar Ghose with him) for the Appellants.

1955. April 5. The Order of the Court was delivered by

MUKHERJEA C. J.-This is an application by the respondents in Special Leave Petition No. 230 of 1953, praying for . summons to the appellants to show cau~e why the special leave obtained by the latte1 should not be rescinded in accordance with the provi-sion of Order XTTJ, rule 13 of the Supreme Court Rules.

The appeal is directed against a judgment of a Division Bench of the Calcutta High C::ourt affirming, on appeal, a decision of a single Judge sitting on the Original Side of that Court. The appellants, having been refused certificate by the High Court, presented before us an application under article 136 of the Ccmstitution and special leave to appeal was granted to them by an order of this Court dated the 25th Mav 1954. By that order the appellants were required to furnish security for costs amounting to Rs. 2,500 within six weeks and the enforcement of the award.

which was the subject-matter of the appeal, was stayed on condition that the appellants deposited in Court a sum of Rs. 28,000 within f.our weeks from the date of the order. On the 15th of June 1954 the Regis-trar of this Court transmitted to the OriJ?inal Side of the Calcutta High Court certified copies of the order granting soecial leave and also of the ~pecial leave netition with a request that these documents miglit he included in the orinted records of the case. It is nol disnutcrl that in -pursuance of the directions riven

J~-.'.l srr 1ND'g2 195:J by this Court the appellants did deposit the amount Shiva Jute required as security for costs and also the sum of Rs. Bali11g Ltd, ;28,000 within the time mentioned in the order. On

v. the 29th November I 954 the respondents' Solicitors Hi11dt,z: mid

Co. td. in Calcutta wrote a letter to the Registrar of the