Case ID: 1890

Judgment:
Appeal No. 771 of 1964. Appeal by special leave from the judgment and order dated H May 29	 1964	 of the Mysore High Court in Civil Petition No. 90 of 1964. 801 section section Khanduja and Ganpat Rai	 for the appellants. B. R. L. Iyengar	 section K. Mehta and K. L. Mehta	 for respondents Nos. 1 to 7. The Judgment of the Court was delivered by Shah J. On May 5	 1964 the respondents hereinafter called 'the plaintiffs ' instituted in the High Court of Mysore an action in the nature of a passing off action against the appellants hereinafter called 'the defendants for a declaration that they "are exclusive owners of the trade mark consisting of the letters R.S.F. and No. 806"	 for a permanent injunction restraining the defendants from passing off their washing soap as the goods of the plaintiffs and for incidental reliefs. By section 105 of the Trade and Merchandise Marks Act 43 of 1958 a passing off action whether the trade mark is registered or unregistered may be instituted in any court not inferior to a District Court having jurisdiction to try the suit. It appears that on May 5	 1964 the District Court of Mysore	 within the territorial limits of which the cause of action was alleged to have arisen	 was closed for the summer vacation	 and it is common ground that on that day there was no Judge functioning in the District Court who was on duty and competent to exercise the powers of the District Court. At the request of the plaintiffs the High Court entertained the plaint and also an application for interim injunction restraining "the defendants their agents or servants from using the trade mark R.S.F. on washing soap manufactured by them and from selling washing soap bearing the said offending mark pending disposal of the case. " By order dated May 29	 1964 the High Court granted the temporary injunction in terms of the prayer in the application. In this appeal with special leave	 counsel for the defendants argues that the High Court had no jurisdiction to entertain the action instituted by the plaintiffs and had no power to make an order issuing a temporary injunction. The action	 as framed	 could properly be instituted in the District Court. The expression "District Court" has by virtue of section 2(e) of Act 43 of 1958 the meaning assigned to that expression in the Code of Civil Procedure	 1908. Section 2(4) of the Code defines a "district" as meaning the local limits of the jurisdiction of a principal civil court called the District Court and includes the local limits of the ordinary original civil jurisdiction of a High Court. If therefore a High Court is 802 possessed of ordinary original civil jurisdiction	 it would	 when exercising that jurisdiction be included	 for the purpose of Act 43 of 1958	 in the expression "District Court". Exercise of jurisdiction by the High Court of Mysore is governed by Mysore Act 5 of 1962. The Act is purely a regulatory Act enacted for regulating the business and exercise of the powers of the High Court in relation to the administration of justice : it does not purport to confer upon the High Court any jurisdiction original or appellate. It is true that by section 12 of the Mysore High Court Act 1 of 1884 enacted by the Maharaja of Mysore to amend the constitution of the High Court of Mysore	 and to provide for the administration of justice by that Court	 the Government of Mysore was authorised by notification to invest the High Court with ordinary original civil jurisdiction of a District Court in all suits of a civil nature exercisable within such local limits as the Government may from time to time declare and appoint in that behalf. But section 12 of the Mysore Act 1 of 1884 has been repealed by section 14 of Mysore Act 5 of 1962. The High Court of Mysore is by its constitution primarily a court exercising appellate jurisdiction : it is competent to exercise original jurisdiction only in those matters in respect of which by special Acts it has been specifically invested with jurisdiction. The High Court is competent to exercise original jurisdiction under section 105 of the Trade and Merchandise Marks Act 43 of 1958 if it is invested with the ordinary original civil jurisdiction of a District Court	 and not otherwise	 and the High Court of Mysore not being invested by any statute of under its constitution with that jurisdiction was incompetent to entertain a passing off action. But it was urged that in a State the High Court is at the apex of the hierarchy of civil courts and has all the powers which the subordinate courts may exercise	 and it is competent to entertain all actions as a court of original jurisdiction which may lie in any court in the State. For this exalted claim	 there is no warrant in our jurisprudence. Jurisdiction of a Court means the extent of the authority of a Court to administer justice prescribed with reference to the subject matter	 pecuniary value and local limits. Barring cases in which jurisdiction is expressly conferred upon it by special statutes	 e.g. the Companies Act; the Banking Companies Act	 the High Court of Mysore exercises appellate jurisdiction alone. As a Court of Appeal it undoubtedly stands at the apex within the State	 but on that account it does not stand invested with original jurisdiction in matters not expressly declared within its cognizance. 803 Section 24 of the Code of Civil Procedure on which counsel for the plaintiffs relied lends no assistance to his argument. Among the powers conferred upon a High Court by section 24 Code of Civil Procedure	 there is enumerated the power to withdraw any suit	 appeal or other proceeding in any Court subordinate to it	 and to try or dispose of the same : [section 24(1) (b) (i)]. But jurisdiction to try a suit	 appeal or proceeding by a High Court under the power reserved by section 24(1) (b) (i) arises only if the suit	 appeal or proceeding is properly instituted in a court subordinate to the High Court	 and the suit	 appeal or proceeding is in exercise of the power of the High Court transferred to it. Exercise of this jurisdiction is conditioned by the lawful institution of the proceeding in a subordinate court of competent jurisdiction	 and transfer thereof to the High Court. Power to try and dispose of a proceeding after transfer from a court lawfully seized of it does not involve a power to entertain a proceeding which is not otherwise within the cognizance of the High Court. Section 151 of the Code of Civil Procedure preserves the in herent power of the Court as may be necessary for the ends of justice or to prevent abuse of the process of the Court. That power may be exercised where there is a proceeding lawfully before the High Court : it does not however authorise the High Court to invest itself with jurisdiction where it is not conferred by law. Reliance was sought to be placed upon the summary of a judgment dated June 6	 1962 in a case decided by Narayana Pai	 J : Kaverappa vs Narayanaswamy	 which is found printed under the heading "Short Notes of Recent Decision" in the Mysore Law Journal (1962) at p. 1. The learned Judge is reported to have observed that section 24 of the Code of Civil Procedure "read along with section 151 which preserves to the High Court all inherent powers to make such orders as may be necessary for ends of justice necessarily implies that whenever an extraordinary situation so requires	 a High Court may confer original jurisdiction upon itself to do or protect ends of justice". It does not appear that the judgment is reported in any series of reports authorised or unauthorised	 and we have not been supplied with a copy of the original judgment. But if the learned Judge	 as reported in the summary of the judgment	 was of the opinion that the High Court is competent to assume to itself jurisdiction Which it does not otherwise possess	 merely because an "extraordinary situation" has arisen	 with respect to the learned Judge	 we are unable to approve of that view. By "jurisdiction" is meant the extent of the power Which is conferred upon the Court by its constitution to try a proceeding; its exercise 804 cannot be enlarged because what the learned Judge calls an extraordinary situation "requires" the Court to exercise it. The appeal must therefore be allowed. Temporary injunction granted by the High Court is vacated and the plaint is ordered to be returned for presentation to the proper Court. As before the High Court	 no objection was raised about the maintainability of the suit or the application for injunction	 we direct the parties to bear their own costs. Appeal allowed.

Summary:
The respondents instituted a passing off action in the High Court of Mysore for a declaration that they were exclusive owners of a certain trade mark and for a permanent injunction restraining the appellants from passing off their goods as that of respondents. By section 105 of the Trade and Merchandise Mark Act such an action may be instituted in any court not inferior to a District Court having jurisdiction to try the suit. It appears that on the day the suit was instituted the District Court was closed and there was no Judge functioning in the District Court who was on duty and competent to exercise the powers of the District Court. The High Court entertained the plaint and granted temporary injunction. In appeal by special leave : HELD:(i) The High Court of Mysore is by its constitution primarily a court exercising appellate jurisdiction; it is competent to exercise original jurisdiction only in those matters in respect of which by special Acts it has been specifically invested with jurisdiction. It would be competent to exercise original jurisdiction under section 105 of the Act if it was invested with ordinary original jurisdiction of a District Court and not otherwise. [802 D F] As a Court of appeal it undoubtedly stands at the apex within the State	 but on that account it does not stand invested with original jurisdiction in matters not expressly declared within its cognizance. [802 H] (ii) Power under section 24 of the Code of Civil Procedure to try and dispose of a proceeding after transfer from a court lawfully seized of it does not involve a power to entertain a proceeding which is not otherwise within the cognizance of the High Court. [803 C D] (iii) Section 151 of the Code of Civil Procedure preserves the inherent powers of the Court	 but it does not authorise the High Court to invest itself with jurisdiction where the jurisdiction is not conferred by law. [803 D E] (iv) By "jurisdiction" is meant the extent of the power which is conferred upon the court by its constitution to try a proceeding : its exercise cannot be enlarged because an extraordinary situation "requires" the court to exercise it. [803 H 804 A]