The advertisement of a trademark in the Trade Marks Journal is sufficient to confer jurisdiction on the Delhi High Court to try a suit for infringement of trademark and passing off, even if there has been no actual sale of the goods in Delhi.

( 1 ) THE respondents filed a suit against the defendants on the basis of a registered trade mark claiming a perpetual injunction, passing off and rendition of accounts, on the Original Side of this Court. The claim of the plaintiffs was that they had a registered trade mark javahar in respect of diesel oil engines. According to the plaintiffs, the defendants had applied for registration of the trade mark jawahar in respect of diesel oil engines for the States of U. P. , Punjab, Haryana, Bihar, Rajasthan and the Union Territories of Delhi and Chandigarh. This application No. 291514b was advertised in the Trade Mark Journal. The object of the suit was to injunct the defendants from using the trade-mark jawahar or a deceptively similar trade mark.

( 2 ) A preliminary issue was framed on the pleadings in the suit as follows:-

"has this Court jurisdiction to try the suit?"on this issue, evidence was examined on the basis of which it was held that there was no evidence that there had been any sale of these diesel oil engines in Delhi. Furthermore, the defendants claimed that they had not advertised in Delhi about their product. The Court held that the jurisdiction of the Court could not be invoked on the ground of an actual sale in Delhi, but held that there had been an advertisement in ajournal called parwez which is published in Ludhiana. The learned Single Judge held that these advertisements were not sufficient to confer jurisdiction on the Courts in Delhi. On the other hand, the Court observed that there had been an advertisement in the Trade Marks Journal published by the Registrar of Trade Marks at Delhi which conferred jurisdiction on the Courts at Delhi.

( 3 ) THE defendants have appealed against the decision of the learned Single Judge and a preliminary objection has been raised regarding the maintainability of the appeal. It was urged by learned counsel for the appellants that the appeal is maintainable in view of the decision of the Supreme Court in Shah Babuhl Khimji v. Jayaben D. Kania and another, A. 1. R. 1981, S. G. 1786, which has impliedly over-ruled the Full Bench decision of this Court regarding the scope of an appeal under the Letters Patent or Section 10 of the Delhi High Court Act applicable to this Court. It was also brought to our notice that the Full Bench decision had in a subsequent case been expressly over-ruled. We agree that this is the correct position.

( 4 ) HOWEVER, the judgment of the Supreme Court re-affirmed the View that prevailed earlier as per Ruldu Singh v. Sanwal Singh, I. L. R. (1922) 3, Lahore 188 decided by the Lahore High Court and the view expressed by White G. J" in Tuljaram v. Alagappa, 35, Madras 1, and other similar cases. There were two views possible regarding the scope of a Letters Patent appeal. In cases covered by Order 43, Rule 1 of the Code of Civil Procedure, an appeal would lie only in those cases which were covered by the rule and not in others even though there was a judgment within the meaning of Clause 10 or Clause 15 of the Letters Patent, as the case maybe. Or, even if the appeal was not maintainable because of Section 104 (2) of the Code, an appeal would lie under the Letters Patent. The wider view has been accepted by the Supreme Court.

( 5 ) IT hag been held by the Court that if there is a judgment eitheir final or interlocutory or preliminary which finally determines the question ai far as that Court is concerned, then an appeal will lie. This means that in the case of a decision on a preliminary issue, an appeal will lie under the Letters Patent or under the provisions of the Delhi High Court Act if the order complained against is a judgment within the meaning of that word occurring in the Letters Patent or in Section 10 of the Delhi High Court Act.

( 6 ) THE only question to be seen is whether the determination of the preliminary issue in this case is final as far as the Original Side of this Court is concerned.

( 7 ) IT can at onc