IMPORTANT POINT
For the purpose of invoking the jurisdiction of the court in a composite suit, both the causes of action must arise within the jurisdiction of the court which otherwise had the necessary jurisdiction to decide all the issues. However, the jurisdiction cannot be conferred by joining two causes of action in the same suit when the court has jurisdiction to try the suit only in respect of one cause of action and not the other.

Headnote:Copyright Act, 1957 - Section 62(2) - Trade and Merchandise Marks Act, 1958-Civil Procedure Code,1908-Order VII Rule XI-Suit filed by plaintiff at District Courts in Kottayam, Kerala against defendants, claiming relief under 1957 Act and 1958 Act- Defendant filed application for rejection of plaint for want of territorial jurisdiction- Trial court dismissed the application –Revision thereagainst- High Court allowed civil revision and directed trial court to determine the issue of territorial jurisdiction afresh-Trial court held that it had jurisdiction to entertain the suit in view of Section 62(2) of the 1957 Act- Petition thereagainst-High Court held that a composite suit would not be maintainable, and gave liberty to Plaintiff to amend the plaint so that suit would be maintainable before District Court, Kottayam-Challenge thereagainst-Since the suit in this case was filed on 19.03. 2001, it would be adjudicated under the 1958 Act- The 1958 Act does not contain a provision similar to the provision contained in Section 62(2) of the 1957 Act- Parliament being aware of the provisions of the 1957 Act still did not incorporate same in the 1958 Act- Therefore, it could not be read into the 1958 Act by implication- High Court had correctly concluded that suit of the plaintiff was a composite one-Again,by permitting the plaintiff to amend the plaint so as that suit would be maintainable before District Court, Kottayam, no error was committed by High Court-High Court had passed the order in exercise of its discretionary powers taking into consideration the entire facts and circumstances of the case-The discretion exercised by High Court could not be said to be either erroneous or perverse- It had been exercised only to avoid multiplicity of litigation-Appeals dismissed (Paras 15 to 23)
       Facts of the Case :
        Suit was filed by plaintiff herein in the instant case at District Courts in Kottayam, Kerala against defendants, claiming relief under 1957 Act and “1958 Act”. Defendant filed application for rejection of plaint for want of territorial jurisdiction. Trial court dismissed said application .On revision thereagainst, High Court allowed civil revision and directed trial court to determine the issue of territorial jurisdiction afresh.Trial court held that it had jurisdiction to entertain the suit in view of Section 62(2) of the 1957 Act. On Petition thereagainst, High Court held that a composite suit would not be maintainable, and gave liberty to Plaintiff to amend the plaint so that suit would be maintainable before District Court, Kottayam.
        B .Present appeals have been filed against said order of High Court.
       Findings of the Court :
        A.The Supreme Court held that even the plaintiff was aware that the court at Kottayam would have no jurisdiction under the 1958 Act, but tried to camouflage the same by confusing it and mixing it up or intermingling it with the relief contained under the 1957 Act. From the averments made in the plaint, it is apparent that the plaintiff had filed a composite suit. Such a suit would not be maintainable unless the court has jurisdiction to entertain the suit in relation to the entire cause of action and theentire relief.
        B.Since the suit in this case was filed on 19.03. 2001, it would be adjudicated under the 1958 Act. The 1958 Act does not contain a provision similar to the provision contained in Section 62(2) of the 1957 Act.Parliament being aware of the provisions of the 1957 Act still did not incorporate same in the 1958 Act. Therefore, it could not be read into the 1958 Act by implication. High Court had correctly concluded that suit of theplaintiff was a composite one. Again,by permitting the plaintiff to amend the plaint so as that suit would be maintainable before District Court, Kottayam, no error was committed by High Court. High Court had passed the order in exercise of its discretionary powers taking into consideration the entire facts and circumstances of the case. The discretion exercised by High Court could not be said to be either erroneous or perverse. It had been exercised only to avoid multiplicity of litigation. Appeals were dismissed .
       Result : Appeals dismissed

JUDGMENT

Surinder Singh Nijjar, J.

1. Leave granted.

2. This judgment shall dispose of C.A.No.10745 of 2013 @ SLP (C) No.22280 of 2011 and C.A.No. 10746 of 2013 @ SLP (C) No.33453 of 2011. Both the appeals impugn the judgment of the High Court of Kerala at Ernakulamdated 15th March, 2011, rendered in Civil Revision Petition No.1417 of 2004.

3. Since these are cross appeals, the parties shall be referred to as plaintiff and defendant. The facts at the centre of this controversy are as follows: The Plaintiff is engaged in the business of manufacturing and marketing of footwear since 1975, under the registered trademark for which it also possesses the registered copyright. The Plaintiff is located in Kerala. The Defendant, which is located in Jalandhar, Punjab, also manufactures and markets its footwear under the registered trademark and copyright PRAGATI/PARAGATI with a device of lion.

4. On 19th March, 2001, the Plaintiff filed a suit being O.S. No. 2 of 2001 at District Courts in Kottayam, Kerala against the defendants, claiming relief under the Copyright Act, 1957 (hereinafter referred to as “1957 Act”) and the Trade and Merchandise Marks Act, 1958 (hereinafter referred to as the “1958 Act”). The suit is pending in the trial court. The defendant filed I.A. No. 322 of 2004, under order VII Rule XI CPC, with a prayer for rejection of plaint for want of territorial jurisdiction. The trial court dismissed the application on 22nd March, 2004, with the observations that the issue of jurisdiction will be decided at the final stage of the suit. The defendant filed CRP No.363 of 2004 in the High Court against the aforesaid order. The High Court by order dated 16th June, 2004, allowed the civil revision and directed the trial court to determine the issue of territorial jurisdiction afresh.

5. In view of the aforesaid directions issued by the High Court, the trial court treated the issue with regard to the jurisdiction as the preliminary issue. Upon consideration of the entire matter again the trial court in its order dated 6th October, 2004 held that it has the jurisdiction to entertain the suit in view of Section 62(2) of the 1957 Act. The petitioner challenged the aforesaid order in the High Court by filing C.R.P. No. 1417 of 2004. The High Court, upon consideration of the matter has, by the impugned order dated 15th March, 2011, held as under:-

“The court below held in the order impugned that the suit as such is maintainable before the District Court, Kottayam. That finding is not correct in view of the decisions of the Supreme Court referred to above. Accordingly, the order passed by the court below is set aside. The plaintiff is given liberty to amend the plaint, so that the suit will be maintainable before the District Court, Kottayam, in the light of the principles laid down by the Supreme Court in the aforesaid decisions. When an application is filed for amendment of the plaint, the court below shall consider the same on the merits, after affording an opportunity of being heard to both sides. The Civil Revision Petition is allowed as above.”

6. A perusal of the above shows that the High Court, having come to the correct conclusion that a composite suit would not be maintainable, has set aside the order passed by the trial court. Thereafter, the Plaintiff has been given liberty to amend the plaint so that the suit will be maintainable before the District Court, Kottayam. The plaintiff aggrieved by the aforesaid order has filed SLP (C) No.22280 of 2011 giving rise to C.A.No.10745 of 2013.

7. The defendant/petitioner in SLP (C) No. 33453 of 2011 has challenged the impugned order on the ground that having come to the conclusion that a composite suit under the 1957 Act and 1958 Act was not maintainable, the High Court erred in permitting the plaintiff to amend the plaint rather than rejecting the same on the ground of lack of jurisdiction.

8. We have heard the learned counsel for the parties.

9. It is submitted by th

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2013 Supreme(SC) 1092

Cases Referred (3)