1 WP-6994-10.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION Mhi WRIT PETITION NO. 6994 OF 2010 SERGI Transformer Explosion Prevention Technologies Pvt.Ltd. ... Petitioner (Orig. defendant) Vs. CTR Manufacturing Indstries Ltd. ... Respondent Mr. Sanjay Kher i/b. Rani Bozaa & Chaitanya Chavan, Advocates, for the petitioner. Mr. Rahul Lamba & Abhileen Chaturvedi i/b. Paras Kunad and Associates Advocates for the respondent CORAM: J.H.BHATIA,J. DATE : 15th September, 2010. P.C. 1. Heard the learned Counsel for the parties. 2. The petitioner, who is the original defendant in Special Civil Suit No. 1/2010 under the Patents Act,has filed a counter-claim. The plaintiff has also filed an application Exhibit 5 seeking interim reliefs. It appears that there is also an application raising objection under Section 8 of the Bombay Court Fees Act. By the impugned order dated 7.8.2010, the learned District Judge, Thane, directed that all these applications, including the application to make counter-claim shall be heard simultaneously. That order is challenged in the present petition by the 2 WP-6994-10.sxw defendant. 3. The learned Counsel for the petitioner contends that in view of the proviso to Section 104 of the Patents Act, since the counter-claim for revocation of the patent is made by the defendant, the suit along with the counter-claim has to be transferred to the High Court for decision and the District Court ceases to have jurisdiction. He contends that the question of jurisdiction should be decided first and then only other applications, particularly Ex.5 be considered. When the District Judge in the impugned order says that all these matters, including the application to make a counter-claim will be heard together, it is implied that he will also consider the question about jurisdiction. When the provisions of Sec. 104 will be pointed out to the learned District Judge, he cannot ignore the said provisions. Whether the counter-claim is of the nature as stated in the proviso to Sec.104 will have to be heard by him before coming to the conclusion whether he has or has no jurisdiction. I see no illegality or irregularity in the impugned order that all these applications shall be heard together. It is presumed that if he comes to the conclusion that he does not have jurisdiction in view of he provisions of Sec. 104, naturally, he would desist from passing any other order. However, if he comes to the conclusion that the case is not covered by the proviso to Sec.104 and he has jurisdiction, he cannot be restrained from hearing the application Exhibit 5 3 WP-6994-10.sxw and from passing oder on the same immediately after hearing the matter. 4. With this clarification, the Writ Petition stands disposed of. (J.H.BHATIA,J.)