The jurisdiction of a court to entertain a suit for infringement of trade mark depends on the averments made in the plaint, and cannot be decided solely on the basis of the defendant's affidavit denying the sale of its products within the court's jurisdiction.

SHIVARAJ PATIL, J.

1. Heard Shri C. Saravanan, learned counsel for the appellant, and Shri K. Raghunathan, learned counsel for the respondent, in this appeal.

2. The plaintiff in the suit C.S. No. 44 of 1991 has filed this appeal challenging the order dated 15.4.1991 passed by the learned single Judge in Application No. 1539 of 1991 in the said suit. The appeal was admitted on 6.7.1992. There was delay of 292 days in filing the appeal. The appellant filed C.M.P. No. 3878 of 1992 seeking condonation of delay in filing the appeal. A Division Bench of this Court passed the following order on 6.7.1992 in the said C.M.P: —

“The delay is condoned, for the present, subject to objection, if, any, that can be taken on behalf of the respondent, at the time of hearing of the Appeal,”

3. When this appeal came up for hearing, on the previous occasion, the learned counsel for the respondent pointed out that the delay was condoned without hearing the respondent, and the respondent would like to file counter opposing the application filed for condonation of delay. In view of the said submission, this Court passed the order on 22.9.1997 granting time to the respondent to file counter. Accordingly, counter affidavit is now filed by the respondent opposing the condonation of delay of 292 days in filing the appeal.

4. We will consider, at the outset, as to whether the delay of 292 days caused in filing the appeal should be condoned.

5. The appellant in the affidavit filed in support of the C.M.P. No. 3878 of 1992 has explained the circumstances under which there was delay of 292 days in filing the appeal. The learned counsel for the appellant submitted that the order under appeal was passed on 15.4.1991, application for copy of the order was made in time, and the copy was made ready on 6.6.1991, since certain decisions relied on by the counsel for the appellant were not taken into consideration by the learned single Judge, the appellant filed a Review Application on 10.6.1991 which application was dismissed on 11.11.1991; it is thereafter the present appeal was filed; thus there was delay of 292 days in filing the appeal, but that delay was neither deliberate nor wanton, inasmuch as the appellant bona fide believed that there were good grounds for review of the order of the learned single Judge, particularly having regard to the question of law that arose for consideration relating to jurisdiction. Hence the review application was filed, and in case the delay is not condoned, the appellant would suffer great injury. On these grounds, and in view of the affidavit filed by the appellant in support of the C.M.P. No. 3878/92, the learned counsel for the appellant prayed for condoning the delay.

6. Shri Raghunathan, learned counsel for the respondent, on the basis of the counter affidavit filed, urged that mere filing of review application was not a ground to condone the delay nothing prevented the appellant from filing the appeal within the time even if it were to file a review application as well. According to him there was no bona fide on the part of the appellant, and hence the delay cannot be condoned.

7. Having regard to the facts and circumstances of the case, and taking note of the fact, in particular that the appellant applied for copy of the impugned order within time, and made application for review of the order under appeal before the learned single Judge within four days from the date of getting copy of the order and that the review sought for was one based on question of law; the review application was dismissed on 11.11.1991 and thereafter the present appeal was filed. It cannot be said that the appellant was either negligent or deliberately delayed in filing the appeal. We are also not able to see any obvious advantage to the appellant in delaying to file the appeal. Further, looking at the order under appeal and the legal question that arose for consideration, it cannot be said that there was no bona fide attempt on the part o