By the Court.—This appeal has been preferred by the defendant-appellant Sanjai Kumar alias Mallu against the order dated 10.9.2007 passed by Shri P.N. Tripathi, Civil Judge (Senior Division), Banda in Original Suit No. 215 of 2007 by which the ad-interim injunction application 6-Ga2 moved by the plaintiff-respondent has been allowed and the appellant has been restrained from manufacturing and selling ‘Deshi Gutkha’ in the packing similarly to the packing of the plaintiff.

2. We have heard Shri Pankaj Bhatia, learned Counsel for the appellant and Shri Ravi Kant, Senior Advocate, assisted by Shri Pankaj Shukla for the respondents.

3. It appears from the contents of the plaint that the plaintiff-respondent is dealing in Deshi Gutkha from 1999 in the name and style of ‘Sahu Bharat Deshi Gutkha’ in district Banda. The Gutkha is sold in the plastic packets. Originally the trade name of the industry of the plaintiff was M/s Sahu Industries, later on it became “Prayag Industries” and at present “Shri Ganesh Traders”. The defendant-appellant is also dealing in Gutkha. The defendant has prepared a design of the packing of Gutkha similar to the design of plaintiff-respondent causing infringement of the plaintiff’s trademark. Both the firms are not registered as admitted by the learned Counsels for the parties.

4. In this appeal before us the only point which has been agitated by the learned Counsel for the appellant is regarding jurisdiction. Admittedly, the suit has been filed under Section 134 of the Trade Marks Act, 1999 (hereinafter referred to as the ‘Act’). The learned Counsel for the appellant has contended that the suit could not be filed in any Court inferior to the Court of District Judge but the Suit was filed in the Court of Civil Judge (Senior Division) Banda, who had no jurisdiction to entertain it. As against this, the learned Counsels for the respondents has argued that the word ‘District Court’ having jurisdiction to try the suit appearing in the said section means the Court inferior to District Judge having jurisdiction and in such way on the basis of valuation the suit was filed in the Court of Civil Judge (Senior Division) Banda, who had jurisdiction to entertain it. He has also cited Sections 9 and 15 of the Civil Procedure Code (hereinafter called as ‘Code’) and have justified the institution for this suit before the Civil Judge (Senior Division) Banda according to the pecuniary jurisdiction. But we see no force in this contention because Section 9 of the Code says that the Court shall have jurisdiction to try all suits of a civil nature excepting suits of which their cognizance is either expressly or impliedly barred. Section 15 of the Code says that every suit shall be instituted in the Court of the lowest grade competent to try it. The provision of Section 15 are subject to the provision of Section 9, CPC and where there is a specific provision for institution of a suit in the particular Court except that nominated in the Act shall have jurisdiction to try the suit. For ready reference we would like to quote Section 134 of the Act as under :

"134. Suit for infringement, etc., to be instituted before District Court.—(1) No suit—

(a) for the infringement of a registered trade mark; or

(b) relating to any right in a registered trade mark; or

(c) for passing off arising out of the use by the defendant of any trade mark which is identical with or deceptively similar to the plaintiff’s trade mark, whether registered or unregistered,

(2) For the purpose of clause (a) and (b) of sub-section (1), a “District Court having jurisdiction” shall, notwithstanding anything contained in the Code of Civil Procedure, 1908 (5 of 1908) or any other law for the time being in force, include a District Court within the local limits of whose jurisdiction, at the time of the institution of the suit or other proceeding, the person institution the suit or proceeding, or, where there are more than one such persons any of them, actually and v