The jurisdiction of the civil court in the matter of cancellation of registration of a trade mark has been impliedly taken away under Sections 46 and 47 of the Trade and Merchandise Marks Act, 1958.

( 1 ) THIS application under Section 115 of the Code of Civil Procedure has been directed against an order dated 26-5-1996 recorded by learned Civil Judge Senior Division, Gorakhpur, in Original Suit No. 208 of 1995 whereby he had rejected the application made by, the defendant-revisionists under Order VII, Rule 11, C. P. C. The plaintiffs had filed a suit against the I. T. C. for reliefs that they may be restrained from selling a particular brand of cigarette. The defendants took up a preliminary objection on two counts. It was stated that the plaint did not disclose any cause of action and that the suit was barred under Section 56 of the Trade and Merchandise Marks Act, 1958. On these two pleas the defendants moved a prayer for rejection of the plaint under Order VII, Rule 11 C. P. C. This prayer was dismissed which had given rise to the present revision application.

( 2 ) THERE, are however, certain other complications which must be stated before the matter is taken up for decision. After the filling of the suit, the plaintiffs (Present O. P. S.) filed an application for an ad-interim injunction which was allowed and the defendants straight away came up in a writ petition before the High Court. At this level the parties came to of a settlement and some consent order was passed. Upon that consent order the injunction order was vacated and hearing of the suit was directed to be taken up. The plaintiffs, thereafter amended their plaint and the defendants raised the plea of rejection of the plaint. The plaintiffs objected the entertainment of that prayer on the ground that it was beyond the consent order. A clarification was sought before the High Court from the Honble Judge who had recorded the consent order. In his clarification, the Honble Judge directed that the application under Order VII, Rule 11, C. P. C. may be confined to the amended plaint. The matter was heard before the Court below and the impugned order was passed. In addition to the merits of the case. the parties, also placed before me conflicting arguments as to what would be the meaning of the words amended plaint for considering the application under Order VII, Rule 11, C. P. C. Before this Court a true interpretation of Section 115, C. P. C. was also raised and the relevant provisions of the Trade and Merchandise Marks Act, were also analysed by the learned counsels.

( 3 ) THE allegations in the suit and the further developments as hinted above may now be stated. The suit was filed by Sri Rakesh Behari Srivastava and two others against the I. T. C. Limited, a compay within the meaning of the Companies Act, on assertion that the three plaintiffs were smokers and they had purchased and smoked cigarettes under the brand names "w. D. and H. C. Wills and "wills" manufactured and sold by the defendants. The plaintiffs used to purchase loose cigarette sticks and had never any opportunity of purchasing a whole packet, and accordingly had no chance to go through the printings on the packets. It was stated that the plaintiffs purchased and smoked the above brands of cigarettes under the impression that they were of a high quality being manufactured under the license of a British Company carrying the same brand names or these cigarettes were manufactured as per standard fixed by the aforesaid foreign company or under its supervision. It was alleged that the cigarettes manufactured by the foreign company, were having a different, formula than these manufactured in India by the defendants. The plaintiffs were not the sole purchasers and smokers of the aforesaid brands. There were other people also who purchased and smoked these brands under an impression that the same were manufactured by or under the supervision of the British Company. The plaintiffs have thus been affected by the wrongful act on the part of the, defendants company and they craved to file a suit on behalf of the general body of the smokers, It was alleged that the defendants had never i