1nms-3840-09 Ladda IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION No. 3840 OF 2009 IN SUIT No. 2169 OF 2009 M/s Huntsman Advanced Materials .. Plaintiff. Versus M/s Kiri Dyes & Chemicals Ltd .. Defendant. -------- Mr M.P. S.Rao a/w Mr Dipankar Das a/w Ms Savita Sadananda i/by M.V.Kini & Co for the Plaintiff. Mr Avadhoot Sumant with Mr Manish Saurastri a/w Mr Zahid and Mr Vivek, i/by Krishna & Saurastri Associates for defendant. -------- CORAM:- S.C.DHARMADHIKARI,J DATED :- 9th December, 2010. P.C.:- 1. Heard learned counsel appearing for the defendant in support of this notice of motion and 2nms-3840-09 Mr Rao, learned Senior counsel, appearing for the plaintiff. 2. This motion is to vacate the ad-interim injunction granted in the suit and to dismiss the suit, itself, because the plaintiff has suppressed from this Court a material fact that the plaint was directed to be returned to the plaintiff, as envisaged under Order 7 Rule 10 of the Code of Civil Procedure, as per order dated 15.10.2009. 3. Learned counsel, Shri Avadhoot Sumant, appearing on behalf of the defendant, submits that the order passed by this Court on 15.10.2009, read as a whole, conveys clearly that the Court has power to return the plaint to the plaintiff for presentation to appropriate Court by exercising power conferred by Rule 283 of the Bombay High Court (Original Side) Rules. He submits that once the Court has exercised this power, then, there was no question of grant of leave under Clause XII of the Letters of Patent 3nms-3840-09 as the Registry has been directed to return the plaint to the plaintiff for presentation before the appropriate Court. Issuing both directions, in the said order, would mean that the Court had directed return of the plaint to enable the plaintiff's advocate for presentation to the proper Court, therefore, the plaint could not be retained on the file of this Court. Rule 283 of the Bombay High Court (Original Side) Rules was complied with. In other words, if the plaint is directed to be returned to the plaintiff for presentation to the Court in which the suit should have been instituted, then, the Registry has to abide by that direction and return the plaint to the plaintiff's Advocate or the plaintiff to enable him to present it to the proper Court, when the plaintiff's Advocate does not collect it, that will not enable the Court to continue exercising all powers as if the suit is still on its file and deal with it including granting leave under clause XII of the Letters of 4nms-3840-09 Patent. In such circumstances, this suit deserves to be dismissed or in any event the ad- interim order should be vacated forthwith. 4. In support of his submissions and particularly that leave under clause XII of the Letters Patent cannot be granted post facto he relied on a judgment of a Division Bench of this Court in Quadricon Pvt Ltd Vs. Bajrang Alloys Ltd, 2009 BCR 345. 5. On the other hand, Shri Rao, learned Senior Counsel, appearing on behalf of the plaintiff submits that nothing much can be made of the procedural lapse or the order passed by this Court on 15.10.2009. That order, plain and simple, enables the plaintiff to apply for leave under Clause XII of the Letters Patent, since leave under Clause XII of the Letters Patent was not obtained at the time of presentation of the plaint and such application was made at a later or subsequent stage, to enable the plaintiff to 5nms-3840-09 apply and for the court to pass an order granting the leave, recourse was taken to Order VII Rule 10 of C.P.C. That the Court took recourse to Order 10 Rule 7 of C.P.C. and directed return of the plaint does not nullify the leave under Clause XII of Letters Patent nor the order could be read to mean that the court proceeded despite there being no plaint or suit on the file. There is neither any procedural impropriety nor such lapse which would vitiate the exercise of the discretionary power by the learned Single Judge and if at all there is any lapse on the part of the plaintiff's Advocate, then, he will take back the plaint for having it renumbered. No advantage can be derived by the defendant of such lapses. Ultimately, no act of the Court would prejudice any one, much less a litigant seeking justice in the Court of law, nor it can be said by technical lapses as in the instant case, the jurisdiction exercised by the learned single Judge cannot be exercised. This position has been 6nms-3840-09 clarified by a Division Bench of this Court in a Decision reported in AIR 2003 Bombay 331 (M/s Travsasia Bio  Medicos Ltd Vs. Ravijay Clinical Laboratory and Hospital ) [ See para 8 at page 335] 6. Having perused the order passed on 15.10.2009, I am in agreement with Shri Rao that the ad-interim order is not vitiated nor does it deserve to be vacated only on this ground. The order must be read as a whole and it becomes at once clear that leave sought under Clause XII of the Letters Patent had been sought. At the hearing of the leave petition, counsel appearing on behalf of the plaintiff sought return of the plaint under Order VII Rule 10 of C.P.C.for presentation before a proper Court because in his opinion the suit could only have been instituted upon grant of clause XII of the Letters Patent. Further, such leave cannot be granted post facto. Therefore, the Advocate adopted a course of requesting for return of the 7nms-3840-09 Plaint for presentation afresh but after the leave as necessary. 7. The learned Judge, referred to the cause of action and the phraseology and wording of clause XII of the Letters Patent and thereafter the provisions of the Trade Marks Act, 1999 and finally held that the cause of action has arisen at least in part within the Original Jurisdiction of this Court and, therefore, the learned Judge granted leave under clause XII of the Letters Patent. It is true that this leave has to be granted at the stage of institution of the suit and registration of the plaint and its admission in the Registry but the learned Judge was considering the request to grant leave but the plaintiff to overcome the technical lapse or objection of not applying for leave under the Letters Patent prior to the institution of the suit applied for return of the plaint. For that purpose and to enable the litigant to obtain the 8nms-3840-09 leave the learned Judge passed an order as prayed under Order VII Rule 10 of C.P.C. 8. To my mind, this order and direction of the learned Judge is not such as would vitiate the grant of leave to such an extent that the ad- interim order passed on the plaintiff's notice of motion must be vacated forthwith. At the most, the plaintiff's Advocate was aware of the consequences flowing from making an application under Rule 10 of Order VII of C.P.C. and the order that is made. However, his understanding and appreciation of statutory provisions and his request to the learned Judge should not be misconstrued and only on that basis and without anything more it cannot be held that the learned Judge was prohibited from granting leave under Clause XII of the Letters Patent by taking recourse to Order VII Rule 10 of C.P.C. Such is not the stand taken before me. In these circumstances, the learned Judge, merely to 9nms-3840-09 facilitate the plaintiff to apply and to enable the Court to grant the leave took assistance of Order VII Rule 10 of C.P.C. to pass the subject order. Merely because the plaintiff thereafter has not taken back the plaint, represented or renumbered it, does not mean that all orders, made on the basis of the original plaint and the suit being pending are non est and the ad-interim injunction automatically deserves to be vacated or the order itself is without any jurisdiction, authority or power. Ultimately, the Court has the power and authority to retain the plaint until adjudication is done with regard to the Court s jurisdiction. Therefore, advisedly, it has been held the word 'jurisdiction' has several shades and meanings. The power and authority and jurisdiction are concepts which need to be understood correctly before any conclusion is reached. 9. In a decision reported in AIR 1969 SC 823, Official Trustee, West Bengal vs.Sachindra Nath 10nms-3840-09 the Hon ble Supreme Court explained the concept thus : 13. What is meant by jurisdiction? This question is answered by Mukherjee, Acting C. J. speaking for the Full Bench of the Calcutta High Court in Hirday Nath Roy v. Ramachandra Barna Sarma. ILR 48 Cal. 138 = (AIR 1921 Cal 34 (FB). At page 146 of the report ILR (Cal) = (at p. 36 of AIR ) the learned Judge explained what exactly is meant by jurisdiction. We can do no better than to quote his words: "In the order of Reference to a Full Bench in the case of Sukhlal v. Tara Chand, (1905) ILR 33 Cal 68 (FB), it was stated that jurisdiction may be defined to be the power of a Court to  hear and determine a cause, to adjudicate and exercise any judicial power in relation to it : in other words, by jurisdiction is meant  the authority which a Court has to decide matters that are litigated 11nms-3840-09 before it or to take cognizance of matters presented in a formal way for its decision . An examination of the cases in the books discloses numerous attempts to define the term 'jurisdiction', which has been stated to be 'the power to hear and determine issues of law and fact', the authority by which the judicial officers take cognizance of and decide causes ; 'the authority to hear and decide a legal controversy', 'the power to hear and determine the subject matter in controversy between parties to a suit and to adjudicate or exercise any judicial power over them; the power to hear, determine and pronounce judgment on the issues before the Court ; the power or authority which is conferred upon a Court by the Legislature to hear and determine causes between parties and to carry the judgments into effect ; the power to enquire into the facts, to apply the law, to pronounce the judgment and to carry it into 12nms-3840-09 execution . [emphasis (herein) supplied]. Proceeding further the learned Judge observed "This jurisdiction of the Court may be qualified or restricted by -a variety of circumstances. Thus, the jurisdiction may have to be considered with reference to place, value and nature of the subject matter. The power of a tribunal may be exercised within defined territorial limits. Its cognizance may be restricted to subject- matters of prescribed value. It may be competent to deal with controversies of a specified character, for instance, testamentary or matrimonial causes, acquisition of lands for public purposes, record of rights as between landlords and tenants. This classification into territorial and jurisdiction, pecuniary jurisdiction and jurisdiction of 13nms-3840-09 the subject matter is obviously of a fundamental character. Given such jurisdiction, we must be careful to distinguish exercise of jurisdiction from existence of jurisdiction :  for fundamentally different are the consequences of failure to comply with statutory requirements in the assumption and in the exercise of jurisdiction. The authority to decide a cause at all and not the decision rendered therein is what makes up jurisdiction ; and when there is jurisdiction of the person and subject matter, the decision of all other questions arising in the case is but an exercise of that jurisdiction. The extent to which the conditions essential for creating and raising the jurisdiction of a Court or the restraints attaching to the mode of exercise of that jurisdiction, should be included in the conception of jurisdiction itself, is sometimes a question of great nicety, as is illustrated by the 14nms-3840-09 decisions reviewed in the order of reference in (1905) ILR 33 Cal 68 (FB) and Khosh Mahomed v. Nazir Mahomed, (1905) ILR 33 Cal 352 (FB); see also the observation of Lord Parkar in Raghunath v. Sundar Das, ILR 42 Cal 72 = (AIR 1914 PC 129). We must not thus overlook the cardinal position that in order that jurisdiction may be exercised, there must be a case legally before the Court and a hearing as well as a determination. A judgment pronounced by a court without jurisdiction is void, subject to the well-known reservation that, when the jurisdiction of a Court is challenged, the Court is competent to determine the question of jurisdiction, though the result of the enquiry may be that it has no jurisdiction to deal with the matter brought before it : Rashmoni v. Ganada.(4)" (emphasis supplied). 14. Finally the learned judge quoted with approval the decision of Srinivas Aiyangar, J. in Tuljaram v. Gopala, 32 Mad LJ 434 = 15nms-3840-09 (AIR 1918 Mad 1093) wherein Aiyangar, J. laid down that "if a Court has jurisdiction to try a suit and  has authority to pass orders of a particular kind , the fact that it has passed an order which it should not have made in the circumstances of the litigation, does not indicate total want or loss of jurisdiction so as to render the order a nullity" [emphasis (herein) supplied). 10. Merely because leave has been granted in this case by taking recourse to the Order VII Rule 10 of CPC does not mean that the learned Judge was oblivious of the law laid down by this Court or has refused to follow it as contended by Shri Sumant. To my mind, directions passed for return of the plaint would not make the order of the learned Single Judge a nullity. Even otherwise, that order has not been challenged by the defendant in a Higher Court and is thus binding on it. 16nms-3840-09 11. In the result, Notice of Motion fails and is dismissed. In the light of view, I have taken, it is not necessary to make detailed reference to the Division Bench decision brought to my notice. Suffice it to say that the law laid down therein binds the Court. (S.C.DHARMADHIKARI,J)