IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Special Appeal No. 192 of 2009 M/s Lambda Eastern Telecommunication & others. .……… Appellants Versus M/s Acme Tele-power Private Ltd. & another. ……… Respondents Mr. Jitendra Chaudhary, Advocate for the appellants. Mr. R. Parasarthy with Mr. Lalit Sharma, Advocates for respondent No. 1. Coram: Hon’ble J.S. Khehar, C.J. Hon’ble Sudhanshu Dhulia, J. Dated: 22nd March, 2010 J.S. KHEHAR, C. J. Respondent No. 1 herein M/s Acme Telepower Pvt. Ltd. filed a suit under Section 104 of the Patents Act, 1970 before the District Judge, Udham Singh Nagar. While contesting the suit, the appellants herein inter alia pleaded, that the District Judge, Udham Singh Nagar had no jurisdiction to try the suit, because no part of the cause of action had arisen in the territorial jurisdiction of district Udham Singh Nagar. 2. The proviso to Section 104 of the Patents Act, 1970 provides, that where a counter claim for revocation is made by the defendant, the suit along with the counter claim, would be transferred to the High Court for adjudication. Based on the alleged fact, that a counter claim had been filed by the appellants herein, the suit along with the counter claim, were transferred to the High Court for adjudication. Before this Court also, based on the plea, that the District Judge, Udham Singh Nagar had no jurisdiction to try the suit filed by respondent No. 1, the appellants assert, that this Court also had no jurisdiction to try the same. 3. On 02.05.2008, this Court framed as many as 9 issues. After the issues were framed, they were read out to the parties. Neither of the parties required the Court to frame any additional issues. Thereafter, this Court commenced the process of recording evidence. While the process of recording evidence was in progress, the appellants herein moved Civil Miscellaneous Application No. 7593 of 2009 under Order XIV Rule 5 of the Code of Civil Procedure, praying that 2 additional issues on the maintainability of the transferred proceedings, be framed. The pointed prayer made by the appellants was for framing two preliminary issues. The two proposed issues are being extracted hereunder: “1. Whether the suit is barred as no part of cause of action has occurred within the territory of District Udham Singh Nagar? 2. Whether the civil courts in District Udham Singh Nagar, and thereafter the Hon’ble High Court in view of Section 104, 105 & 107 of the Patent Act has the jurisdiction to try the suit? 4. While disposing of Civil Miscellaneous Application No. 7593 of 2009, a learned Single Judge of this Court passed the following order on 09.09.2009: “This is Application No. 7593 of 2009, moved on behalf of the defendants, for framing additional issue on territorial jurisdiction with regard to which plea is raised in Para 11 of the written statement. Heard learned counsel for the parties. After hearing the parties, as many as 9 issues were framed on 2nd of May 2008, by this Court. It is observed in Para 4, after framing the issues that the issues were read over and explained to the parties, and no other issue was pressed. Now, at this stage when the recording of oral evidence of the parties is in progress, learned counsel for the defendants argued that additional issue on territorial jurisdiction be framed. This Court would have no hesitation in framing additional issue on territorial jurisdiction also even at this stage, but in the present suit counter claim has been filed by the defendants, and thereby they have submitted to the jurisdiction of this Court, and as such, this Court, in the circumstances of the case, do not think it just and proper to frame additional issue on territorial jurisdiction. Therefore, the Application No. 7593 of 2009 is rejected.” 5. Dissatisfied with the order passed by the learned Single Judge dated 09.09.2009, the appellants have filed the present Special Appeal. 6. When the instant Special Appeal came up for hearing, learned counsel for respondent No. 1 raised an objection about the maintainability of the same. Learned counsel for respondent No. 1, therefore called upon us, to determine whether or not, the instant Special Appeal was maintainable, before venturing into the merits of the claims raised by the rival parties. Through the instant order, we propose to deal with the objection raised by respondent No. 1, as to the maintainability of the present Special Appeal. 3 7. In order to demonstrate that the instant Special Appeal is not maintainable, learned counsel for respondent No. 1, in the first instant, placed reliance on Rule 5, contained in Section C of Chapter VIII of the Rules of the Court, 1952. Rule 5, relied upon by the learned counsel for respondent No. 1, is being extracted hereunder: “5. Special appeal. – An appeal shall lie to the Court from a judgment (not being a judgment passed in the exercise of appellate jurisdiction) in respect of a decree or order made by a Court subject to the superintendence of the Court and not being an order made in the exercise of revisional jurisdiction or in the exercise of its power of superintendence or in the exercise of criminal jurisdiction or in the exercise of jurisdiction conferred by Article 226 or Article 227 of the Constitution in respect of any judgment, order or award (a) of a tribunal, Court or statutory arbitrator made or purported to be made in the exercise or purported exercise of jurisdiction under any Uttar Pradesh Act or under any Central Act, with respect to any of the matters enumerated in the State List or the Concurrent List in the Seventh Schedule to the Constitution, or (b) of the Government or any Officer or authority, made or purported to be made in the exercise or purported exercise of appellate or revisional jurisdiction under any such Act of one Judge.” Based on Rule 5, it is the submission of the learned counsel for respondent No. 1, that the impugned order dated 09.09.2009 (extracted herein above) is not a “judgment”, and as such, an intra-court appeal is not competent as against the same. Learned counsel for respondent No. 1, having read and re-read Rule 5 (extracted herein above), emphatically points out, that a special appeal under Rule 5 contained in Section C of Chapter VIII of the Rules of the Court, 1952 is only maintainable against a “judgment”, whereas the order dated 09.09.2009 can only be referred to as an “interim order”, and not a “judgment” wherefrom a special appeal is competent. 8. In order to substantiate his first contention, learned counsel for respondent No. 1 placed reliance on a judgment rendered by a Full Bench of the Madras High Court in TV Tuljaram Row vs. MKRV Alagappa Chettiar, (1912) ILR 35 Madras 1. Relying on the observations recorded in paragraph 18 of judgment in TV Tuljaram Row’s case (supra), it is the vehement contention of the learned counsel for respondent No. 1, that the controversy raised in the aforesaid case was identical to, that which is subject matter of consideration herein. It was submitted, that the defendant in TV Tuljaram Row’s case (supra) had moved an application for framing additional issues. A learned Single Judge, sitting on the original side, dismissed the same. Thereafter, the defendant preferred an appeal 4 under Clause 15 of the Letters Patent of 1865. The question referred to the Full Bench, in the course of the adjudication of the aforesaid appeal was, whether the order refusing to frame additional issues, was a “judgment” within the meaning of Clause 15 of the Letters Patent referred to above. The Full Bench answered the issue in the negative. Meaning thereby, that the Full Bench of the Madras High Court arrived at the conclusion, that the “order” passed by the learned Single Judge (sitting on the original side) refusing to frame additional issues, did not constitute a “judgment”. Based on the aforesaid decision, it is the vehement contention of the learned counsel for respondent No. 1, that in the instant controversy also, for the same reasons as were recorded by the Madras High Court, the impugned order dated 09.09.2009 cannot be treated as a “judgment”. Based on the aforesaid, it is the contention of the learned counsel for respondent No. 1, that the instant Special Appeal is not maintainable, within the scope and ambit of Rule 5 contained in Section C of Chapter VIII of the Rules of the Court, 1952. 9. Learned counsel for respondent No. 1 also placed reliance on the judgment rendered by a learned Single Judge of the Allahabad High Court in M/s Kisan Udyog and another Vs. United Bank of India & others, AIR 1990 Allahabad 8, wherein in paragraph 4, the Court had categorically arrived at the conclusion, that the refusal to frame additional issues did not result in deciding any rights and obligations of the parties. Paragraph 4 of the aforesaid judgment is being extracted hereunder: “4. In the instant case the plaintiff has filed a suit for the recovery of Rs. 52479/- together with interest at the rate of 13% per annum. This amount has been claimed in view of the alleged advance having been made. It is alleged on behalf of the plaintiff that the defendants executed an agreement. In any case it is for the plaintiff to satisfy the court that the amount is due and is recoverable from the defendants. No doubt, the defendants may resist the claim in the Court. However, if by such a refusal to frame issues a serious prejudice is being caused to the plaintiff or the defendants then it is always expedient for the trial court to exercise its jurisdiction in framing such issues to facilitate the parties to adduce evidence in the light of pleadings on the basis of which issues were framed. In the instant case I do not find that any prejudice would be caused to the defendant applicant. It is the discretionary power of the trial court to frame additional issues if it finds it necessary for determining the lis between the parties but merely refusal to frame additional issues does not give a right to the parties to prefer a revision as by such refusal to frame such additional issues neither the rights nor the obligations of the parties are adjudicated upon. As no right or obligation of a party is determined by refusal to frame 5 additional issues it cannot be held to be deciding a case so as to attract the expression “case which has been decided..” Based on the finding, that refusal to frame additional issues does not result in deciding the rights and obligations of the contesting parties, it is contended that the impugned order passed by a learned Single Judge of this Court on 09.09.2009, cannot be treated as a “judgment” falling within the meaning of Rule 5 contained in Section C of Chapter VIII of the Rules of the Court, 1952. Thus viewed, it is submitted, that the impugned order, rendered by a learned Single Judge, is not assailable through an intra-court appeal. As such, it is submitted that the instant Special Appeal is not maintainable. 10. The second contention advanced by the learned counsel for respondent No. 1 was based on a reading of Section 104 and Order XLIII Rule 1 of the Code of Civil Procedure, 1908. Both the aforesaid provisions are being extracted hereunder: “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) an order under Section 35 A; (ffa) an order under Section 91 or Section 92 refusing leave to institute a suit of the nature referred to in Section 91 or Section 92, as the case may be; (g) an order under Section 95; (h) an order under any of the provisions of this Code imposing a fine or directing the arrest or detention in the civil prison of any person except where such arrest or detention is in execution of a decree; (i) any order made under rules from which an appeal is expressly allowed by rules: Provided that no appeal shall lie against any order specified in clause (ff) save on the ground that no order, or an order for the payment of a less amount, ought to have been made. (2) No appeal shall lie from any order passed in appeal under this .” section 1. Appeals from orders. - An appeal shall lie from the following orders under the provisions of Section 104, namely- (a) an order under Rule 10 of Order VII returning a plaint to be presented to the proper Court, except where the procedure specified in Rule 10A of Order VII has been followed; (b) * * * 6 (c) an order under Rule 9 of Order IX rejecting an application (in a case open to appeal) for an order to set aside the dismissal of a suit; (d) an order under Rule 13 of Order IX rejecting an application (in a case open to appeal) for an order to set aside a decree passed ex parte; (e) * * * (f) an order under Rule 21 of Order XI; (g) * * * (h) * * * (i) an order under Rule 34 of Order XXI on an objection to the draft of a document or of an endorsement; (j) an order under Rule 72 or Rule 92 of Order XXI setting aside or refusing to set aside a sale; (ja) an order rejecting an application made under sub-rule (1) of Rule 106 of Order XXI, provided that an order on the original application, that is to say, the application referred to in sub-rule (1) of Rule 105 of that Order is appealable. (k) an order under Rule 9 of Order XXII refusing to set aside the abatement or dismissal of a suit; (l) an order under Rule 10 of Order XXII giving or refusing to give leave; (m) * * * (n) an order under Rule 2 of Order XXV rejecting an application ( in a case open to appeal) for an order to set aside the dismissal of a suit; (na) an order under Rule 5 or Rule 7 of Order XXXIII rejecting an application for permission to sue as an indigent person; (o) * * * (p) orders in interpleader-suits under Rule 3, Rule 4 or Rule 6 of Order XXXV; (q) an order under Rule 2, Rule 3 or Rule 6 of Order XXXVIII; (r) an order under Rule 1, Rule 2, Rule 2A, Rule 4 or Rule 10 of Order XXXIX; (s) an order under Rule 1 or Rule 4 of Order XL; (t) an order of refusal under Rule 19 of Order XLI to re-admit, or under Rule 21 of Order XLI to re-hear, an appeal; (u) an order under Rule 23 or Rule 23A of Order XLI remanding a case, where an appeal would lie from the decree of the Appellate Court; (v) * * * (w) an order under Rule 4 of Order XLVII granting an application for review.” Having invited this Court’s attention to the provisions extracted above, it is the submission of the learned counsel for respondent No. 1, that the Code of Civil Procedure does not contemplate an appeal in respect of an order passed under Order XIV Rule 5 of the Code of Civil Procedure. As such, it is submitted, that even if Order XLIII Rule 1 of the Code of Civil Procedure did not apply in terms to a Special Appeal, yet the orders referred to as appealable therein, would constitute a valuable guideline for arriving at the conclusion, whether or not such 7 orders constitute “judgments” at the hands of a Single Judge, so as to be assailable by filing a Special Appeal under Rule 5 contained in Section C of Chapter VIII of the Rules of the Court, 1952. 11. Besides, the aforesaid two issues (pertaining to the objection raised on behalf of respondent No. 1), learned counsel for respondent No. 1 also invited our attention to certain provisions of the Code of Civil Procedure, as also to certain facts, to canvass his claim on merits, so as to demonstrate that the plea of jurisdiction raised at the hands of the appellants was not sustainable in law. Learned counsel for the appellants also invited our attention to some judgments, as also to certain factual aspects pertaining to the controversy for the same purpose, i.e. to substantiate the plea of jurisdiction. Since, through the instant order, we propose to only deal with the objection raised at the hands of respondent No. 1, as to the maintainability of the instant Special Appeal, we shall not record or advert to the facts as also the provisions and precedents relied upon by the rival parties to canvass the merits of their claims. 12. In order to repudiate the submission advanced by the learned counsel for respondent No. 1, learned counsel for the appellants, in the first instant, placed reliance on a judgment rendered inter-parties by a Division Bench of this Court in M/s Acme Telepower Ltd. Vs. Sintex Industries Ltd. & another, 2008(2) UD 201, wherein inter alia an order dated 30.06.2008 passed by a learned Single Judge of this Court, was assailed at the hands of the appellant (respondent No. 1 herein), rejecting a temporary injunction application filed by the appellant. During the course of adjudication of the Special Appeal, filed on behalf of respondent No. 1 herein, so as to challenge the order dated 30.06.2008, a similar preliminary objection as has been raised in the present Special Appeal, was raised, by asserting that the Special Appeal was not maintainable. The contention at the hands of the respondents was, that the Special Appeal preferred to assail the order dated 30.06.2008, was not maintainable because the impugned order (dated 30.06.2008) was not a “judgment”. This Court, while disposing of the aforesaid Special Appeal (bearing No. 131 of 2008), arrived at the conclusion, that the order dated 30.06.2008 was a “judgment”. On the same analogy, and on the basis of the same legal precedents, the appellants canvass, that the instant Special Appeal filed against the impugned order dated 09.09.2009 is also maintainable. 8 13. During the course of adjudication of the controversy, learned counsel for the appellants placed vehement reliance on the judgment rendered by the Supreme Court in Shah Babulal Khimji Vs. Jayaben D. Kania and another, AIR 1981 SC 1786. In fact, in the earlier round of litigation between the parties (referred to in the foregoing paragraph), reliance had also been placed on the aforesaid judgment to arrive at the eventual conclusion. It is this judgment, which will have to be deciphered minutely to determine, whether the controversy has to be decided in favour of the appellants or respondent No. 1. In fact, both the issues canvassed by the learned counsel for respondent No. 1, have been dealt with in the aforesaid judgment, and therefore, inferences drawn from the judgment in Shah Babulal Khimji’s case (supra), would have the effect of settling both the issues projected by the learned counsel representing respondent No. 1. 14. Dealing with the first issue, first. In paragraphs 5 & 6 of the judgment in Shah Babulal Khimji’s case (supra), the first issue canvassed at the hands of the learned counsel for respondent No. 1, has been focused. Paragraphs 5 & 6 (afore- mentioned) are accordingly being extracted hereunder: “5. The substantial questions of law raised in this appeal by the Counsel for the parties are as to the scope, ambit and meaning of the word ‘judgment’ appearing in Clause 15 of the Letters Patent of the Bombay High Court and corresponding clauses in the Letters Patent of other High Courts. We might mention here that the significance of the word ‘judgment’ assumes a special importance in those High Courts which have ordinary civil jurisdiction depending on valuation of the suit or the action. These High Courts are Calcutta, Bombay, Madras as also Delhi and Jammu & Kashmir. The other High Courts do not have any ordinary civil jurisdiction but their original jurisdiction is confined only to a few causes like probate and administration, admiralty and cases under Companies Act. 6. It seems to us that the interpretation of the word ‘judgment’ appearing in the Letters Patent of the High Court has been the subject matter of judicial interpretation by decisions rendered by various High Courts in India. Unfortunately, however, the decisions are by no means consistent or unanimous. On the other hand, there appears to be a serious divergence of judicial opinions and a constant conflict between the High Courts regarding the true scope, ambit and meaning of the word ‘judgment’ appearing in the Letters Patent so much so that a colossal controversy has been raging in this country for more than a century. Several tests have been laid down by leading judgments of the Calcutta, Madras and Rangoon High Courts. Other High Courts have either followed one or the other of the leading judgments regarding the validity of the tests laid down by the three High Courts. The Calcutta High Court appears to have followed the leading case of its court in the Justices of the Peace for Calcutta Vs. The Oriental Gas Co., (1872) 8 Beng LR 433 where Sir Richard Couch, C.J. had laid down a particular test on a rather strict and literal interpretation of the Letters Patent. Later decisions of the Calcutta High Court have 9 followed this decision of Sir Richard Couch, CJ with some modifications and clarifications. The Madras High Court has taken a very liberal view in its decision in TV Tuljaram Row Vs. MKRV Alagappa Chettiar, (1912) ILR 35 Mad 1). The Bombay High Court seems to have consistently taken the view that no interlocutory order can ever be said to be a judgment within the meaning of the Letters Patent so as to be appealable from the order of a single Judge exercising original civil jurisdiction (hereinafter referred to as ‘Trial Judge’) to a larger Bench. The Rangoon High Court speaking through Sir Page, C.J. in Dayabhai Jiwandas Vs. AMM Murugappa Chettiar, ILR 13 Rang 457: (AIR 1935 Rang 267) (FB) has placed a very narrow interpretation on the term ‘judgment’ and has almost equated it with a decree passed by a Civil Court.” The Apex Court dealt with the issue, on the basis of three sets of judgments, which had laid down certain tests to determine, when an order passed by a trial judge could be said to be a “judgment”. Reference was, first of all, made to a Division Bench judgment rendered by the Calcutta High Court in Case of Justices of the Peace for Calcutta Vs. The Oriental Gas Co., (1872) 8 Beng LR 433, where Sir Richard Couch, CJ, on the interpretation of clause 15 of the Letters Patent, observed as under: “We think that “judgment” in Cl. 15 means a decision which affects the merits of the question between the parties by determining some right or liability. It may be either final, or preliminary, or interlocutory, the difference between them being that a final judgment determines the whole cause or suit, and a preliminary or interlocutory judgment determines only a part of it, leaving other matters to be determined.” From the aforesaid judgment, the Supreme Court arrived at the conclusion, that the Calcutta High Court had laid down three parameters, to determine whether an order rendered by the trial court would be deemed to be a “judgment”. The relevant observations of the Apex Court are extracted hereunder: “82. An analysis of the observations of the Chief Justice would reveal that the following tests were laid down by him in order to decide whether or not an order passed by the Trial