The High Court has jurisdiction to hear an application for rectification of a trade-mark under Section 46 of the Trade Marks Act, 1940, even in the absence of an application for execution brought by the petitioner.

Kapur, J.

1. This is an application, by Messrs. Watkins Mayor & Company, Jullindur, for rectification of the registration of a trade-mark under Section 46 of the Trade Marks Act, 1940.

2. An objection has been taken on behalf of the opposite party, Jessa Singh-Uttam Bingh of Bombay to the jurisdiction of this Court. The petitioners have alleged that they are the registered owners of the trade-mark Lion - Sher Marka since 1926 and that the opposite party by getting registered a trade-mark with the figure of Tiger or Panther have infringed their trade-mark-

3. The question of jurisdiction depends on the interpretation of Sections 46 and 72 of the Trade Marks Act. The petitioners have also made an application for amendment of their petition under Order VI, Rule 17, Civil Procedure Code. In this they allege that a permanent injunction was obtained by them in the Court of the District Judge, Jullundur, on the 21st March 1950 and they took out an execution of that decree on the 2lst August 1951 i.e., during the pendency of the application in this Court. By this application the applicants have tried to bring their case within Section 72 (a) of the Act which is as follows: "72. Where under this Act an applicant has the option of making an application either to a High Court or to the Registrar: --(a) if any suit or other proceedings concerning the trade mark in question is pending before a High Court or a District Court, the application shall be made to that High Court or, as the case may be, to the High Court within whose jurisdiction that District Court is situated."

4. Before I decide the question whether this Court would have jurisdiction if there had been no application for amendment, I think it necessary to decide whether the amedment should be allowed at this stage. Two objections have been taken to the application for amendment by Mr. Gosain --one that it has not been made bona fide, i.e.. the application for execution was made only for the purpose of giving jurisdiction to this Court, and, secondly, that an event which has happened after the application has been filed should not be allowed to be made a ground for amendment. With regard to the first question, I see no ground to hold that it is a mala fide application. If, as a matter of fact, one of the parties in a proceeding of this kind has obtained a decree, I cannot see why, in order to bring an application within the exclusive jurisdiction of this Court, he cannot take out execution for the purpose. It would not have made any difference if the petitioners had first taken out execution and then made the application, and it would be open to them now to withdraw this application with leave to bring a fresh one and then make the allegations which they now wish to make. The, question is one of costs which can always be taken into consideration.

5. In this connection another objection was taken by Mr. Gosain and that is that the pro ceedings under Section 72 (a) on the ground on which jurisdiction is sought to be exclusively con ferred must be proceedings concerning the trade mark in question. The decree which is sought to be executed has been placed on the record. It is a very comprehensive decree and it cannot be said that it is not concerning the trade-mark in question, and it is not necessary at this stage to give any final adjudication upon the point, but for the purpose of seeing whether this Court would have jurisdiction or not, the decree seems to be sufficiently wide.

6. Coming now to the question whether a subsequent event can be taken into consideration or not the question does not seem to be of any very great difficulty. It was held by the Federal Court in Lachmeswar Prasad V/s. Keshwar Lal, (1940) F C R 84 at p. 103, that subsequent events have to be taken into consideration. In England under Order XXVIII, Rule 1 of the Rules of the Supreme Court it has been held that a plaintiff would be allowed to amend by adding a claim for special damage when proof of s