Ramachandra Iyer, C.J.-

This is an appeal against the Judgment of Subrahmanyam, J., declining to entertain an application filed by the appellant for rectification of the Trade Marks Register by deleting the Registered Trade Mark Nos. B. 1108, B. 62078 and B. 62080 from the Register of Trade Marks. The appeal involves the determination of the question whether this Court has jurisdiction to entertain the application. The first respondent, a public Limited Company, does business in piecegoods, cotton and artificial silk. Its office is at Bombay. On 10th June, 1942, the first respondent applied to the Registrar of Trade Marks for registration of a design comprising the word “Chamundi.” The said Mark was registered in relation to the piecegoods of all kinds sold by the first respondent. Four months thereafter it made two further applications for registration of two further Marks containing the picture of Sri Chamundeeswari in respect of goods known as tissue piecegoods, bed-sheets, towels, etc. They were duly registered by the Registrar of Trade Marks under section 16 (1) of the Trade Marks Act, 1940. The appellant, a private Limited Company doing business in the manufacture and sale of handloom sarees at Kuttalam in Thanjavur District, applied on 30th December, 1949, to the Registrar of Trade Marks for registration of a label in relation to goods sold by him. That label also contained a distinctive design including therein a picture of Sri Chamundeeswari. The application met with opposition from the first respondent. The appellant thereupon filed an application to this Court under section 46 (2) of the Trade Marks Act for rectification of the Trade Marks Register in the manner stated above. The Trade Marks Act, 1940, was then in force. That enactment has been repealed since and the provisions thereof are re-enacted in the Trade and Merchandise Marks Act (XLIII of 1958). Under section 136 of the latter enactment the Indian Trade Marks Act, 1940, stands repealed. But sub-section (4) thereof states that notwithstanding such repeal, any legal proceeding pending in any Court at the commencement of Act (XLIII of 1958) may be continued in that Court as if the Act had not been passed. If therefore this Court had jurisdiction to entertain the appellant’s application for rectification under the Trade Marks Act, 1940, relief could be granted to him notwithstanding the provisions of the Trade and Merchandise Marks Act, 1958. Subrahmanyam, J., held that this Court would have no jurisdiction to entertain the application of the appellant under section 46 of the Trade Marks Act, 1940, as the subject-matter of the petition, namely, the removal of trademark registered on an application by a citizen of Bombay or Mysore had no relation to the State of Madras over which alone this Court would have jurisdiction. The appellant challenges the correctness of the decision in this appeal.

Section 37 (1) of the Trad Marks Act, 1940, provides that a registered trade-mark may be taken off the register in respect of any of the goods in respect of which it is registered on the application of any person aggrieved, to a High Court or to the Registrar. The grounds on which such a relief could be granted proceeds on the principle that the registered trade-mark was not properly registrable. Section 46 (1) states:

“On application in the prescribed manner by any person aggrieved to a High Court or to the Registrar, the Tribunal may make such order as it may think fit for cancelling or varying the registration of a trade-mark on the ground of any contravention of, or failure to observe a condition entered on the register in relation thereto.”

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(Sub-sections (2) to (5) omitted as unnecessary).

This section provides the machinery for the rectification of the Trade Marks Register at the instance of a person aggrieved, that is, a person other than the registered owner of the impugned trade-mark. Option is given to the person aggrieved to file the application either befo

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