A. Trade and Merchandise Marks Act, 1958 - Civil Procedure Code, 1908, Section 20 - Relief under Trade and Merchandise Act - Territorial Jurisdiction of court has to be considered with reference to Section 20 of Civil Procedure Code as there is no similar provision under the Trade and Merchandise Act.

[Para 8]

B. Civil Procedure Code, 1908, Section 20 - Plea of lack of territorial jurisdiction - Plea not raised in application for temporary injunction and appeal filed against the order therein - Held, it does not mean that defendants have waived the right to raise that contention in written statement.

[Para 13]

ORDER :

K.T. Sankaran, J.

The defendants in O.S. No. 2 of 2001, on the file of the court of the District Judge, Kottayam, challenge the order dated 6.10.2004 in I.A. No. 322 of 2004 in O.S. No. 2 of 2001, by which the court below held that it has got territorial jurisdiction to try the suit.

2. The suit was filed by the respondent claiming reliefs under the Copyright Act, 1957 and The Trade and Merchandise Marks Act, 1958. The plaintiff also sought for reliefs alleging that there was passing off the goods of the plaintiff as the goods of the defendants.

3. It is stated that an interim injunction was granted in favour of the plaintiff. The defendants challenged that order in C.M.A.No.52 of 2003 before the High Court. The C.M.A. was disposed of directing the trial court to dispose of the suit.

4. Thereafter, the defendants filed I.A. No. 322 of 2004 to try the question of territorial jurisdiction as a preliminary issue. The defendants raised a contention that the District Court, Kottayam has no territorial jurisdiction to try the suit. The court below dismissed the application by the order dated 22.3.2004. That order was challenged in C.R.P. No.363 of 2004. This Court allowed the revision. The trial court was directed to decide the issue of territorial jurisdiction afresh.

5. Thereafter, the trial court passed the order dated 6th October, 2004 holding that it has territorial jurisdiction to try the suit. The said order is challenged by the defendants in this revision. The court below held that in view of Section 62 of the Copyright Act, 1957 the suit is maintainable before the District Court, Kottayam.

6. Sri. R.D. Shenoy, the learned senior counsel appearing for the petitioners submitted that the order passed by the court below is liable to be set aside in view of the decisions of the Supreme Court in M/s. Dhodha House vs. S.K. Maingi (AIR 2006 Supreme Court 730) = (JT 2006(1) SC 123) and Dabur India Ltd. vs. K.R. Industries (AIR 2008 Supreme Court 3123) = 2008 (10) SCC 595. The learned senior counsel also referred to the decisions in Kurivalli Lingayya Setty vs. Sitharam Agarwala and another (AIR 1955 Madras 595), Laxmikumar Srinivas Das vs. Krishnaram Baldev Bank, Lashkar and another (AIR 1954 Madhya Bharat 156), M/s. Intas Pharmaceuticals Ltd. vs. Allergan Inc. (AIR 2007 Delhi 108) and Dharampal Premchand Ltd. vs. Golden Tobacco Products (AIR 2007 Delhi 266).

7. Sri. Narendra Kumar, the learned counsel appearing for the respondent submitted that the plea of lack of territorial jurisdiction is not available now to the defendants as they shall be deemed to have waived that contention. It is pointed out that when the application for temporary injunction and the appeal therefrom were being considered, the defendants did not raise the contention that the court has no territorial jurisdiction. A direction was issued by the High Court in C.M.A. No. 52 of 2003 to dispose of the suit expeditiously. Only at that juncture, I.A.No.322 of 2004 was filed praying for deciding the question of lack of territorial jurisdiction as a preliminary issue. The counsel relied on the decisions in Hira Lal Patni vs. Sri Kali Nath (AIR 1962 Supreme Court 199) and Bahrein Petroleum Co. Ltd. vs. P.J. Pappu and another (AIR 1966 Supreme Court 634) in support of this contention.

8. Sub Section 2 of Section 62 of the Copyright Act, 1957 reads thus :

"(2) For the pu

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