RAJA SOAP FACTORY AND OTHERS versus S. P. SHANTHARAJ AND OTHERS

Citation: [1965] 2 S.C.R. 800 · Decided: 20-01-1965 · Supreme Court of India · Bench: K.N. WANCHOO · Disposal: Appeal(s) allowed

Cited by 4 judgment(s) · see the full citation network in Lexace

Judgment (excerpt)

' 
RAJA SOAP FACTORY AND OTHERS 
v. 
S. P. SHANTIIARAl AND OTHERS 
January 20, 1965 
[K.N. WANCHOO, M. HIDAYATULLAH, J.C. SHAH 
AND S.M. S!KRI, JJ.J 
High Court of Mysore Act, 1962 (Mysore Act S of 1962)-Trade 
and Werchandise Marks Act, 1958 (Act 43 of 1958), 105-Code of 
Civil Procedure, 1908 (Act 5 of 1908), ss. 24, 
151-High 
Court--
Passing off Action, 
institulion--Entertainability-Ezercise of original 
jurisdiction-Jurisdiction, Meaning of. 
The respondents instituted a passing .cff action in the High Coun 
<>f Mysore for a declaration that they were exclusive own.ers of a cer-
tain trade mark and for a permanent injunction restraining the appellants 
from passing off their goods as that of respondents. 
By s. 105 of ,the 
Trade and Merchandire 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 injunctioa. 
In appeal by special leave : 
HELD : ( i) The High Court of Mysore is by its constitution pri-
marily 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 s. 105 of the Act if it 
was invested with ordinary original jurisdiction of a District Coun 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 juris-
diction in matters not expressly declared within its cognizance. [802 HJ 
(ii) Power under s. 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 in-
herent 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 i1 
conferred upon the court by its constitution to try a proceeding : ill 
exercise cannot be enlarged because an extraordinary situation "requires,. 
the court to exercise it. [803 H-804 A] 
CIVIL APPELLATE JURISDICION: Civil Appeal No. 771 of 
1964. 
Appeal by special leave from the judgment and order dated 
May 29, 1964, of the Mysore High Court in Civil Petition No. 90 
of 1964. 
A 
B 
c 
D 
E 
F 
G 
H 
A 
B 
RAJA SOAP v. SHANTHARAJ (Shah /.) 
80! 
S. S. Khanduja and Ganpat Rai, for the appellants. 
B. R. L. Iyengar, S. K. Mehta and K. L. Mehta, for respon-
dents Nos. 1 to 7. 
The Judgment of the Court was delivered by 
Slulh 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-herein-
after called 'the defendants'-for a declaration that they "are ex-
clusive owners of the trade mark consisting of the letters R.S.F. 
C 
and No. 806", for a permanent injunction restraining the defen-
dants from passing off their washing soap as the goods of the plain-
tiffs and for incidental reliefs. 
By s. 105 of the Trade and Merchandise Marks Act 43 of 
1958 a passing off action whether the trade mark is registered or 
D 
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 
E 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 
r 
washing soap bearing the said offending mark

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