# Vijay Kumar Khanna v. The IInd A.D.J., Kanpur Nagar and others

- **Citation:** High Court of Judicature at Allahabad #39565
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2000
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/vijay-kumar-khanna-v-the-iind-a-d-j-kanpur-nagar-and-others-39565
- **Pages:** 12

## Text

_Characters 0–39,892 of 46,440. This is a partial read: ask again with offset=39892 for what follows._

INDIAN LAW REPORTS ALLAHABAD SERIES [2000
38
annulling the marriage) or restitution of
conjugal rights or judicial separation or
dissolution of marriage. Clause (c) provides in
respect of a suit or proceeding between the
parties to a marriage with respect to the
property of the parties or of either of them.
The Family Court gets the jurisdiction to
entertain a suit for divorce or other matters
provided
under
Hindu
Marriage
Act.
Similarly it can entertain an application by a
party under Section 27 of the Hindu Marriage
Act in regard to any direction in respect of the
property.

7. Section 28 only gives a right to a party
to file an appeal against decrees and certain
orders passed under the Act. It is a substantive
right given to a party to submit an appeal but
it does not refer to a forum of appeal. The
forum of appeal, in absence of any other
provision, is to be determined by Bengal,
Agra and Assam Civil Courts Act, 1887. An
appeal from a decree or order of a
Subordinate Judge lies to the District Judge
under Section 21 of the Act and from a decree
or order of a District Judge or Additional
Judge to the High Court under Section 20 of
the said Act. Section 19 of 1984 Act provides
for filing an appeal from every judgment and
order not being interlocutory order of a
Family Court to the High Court both on facts
and law. Sub-section (1) of Section 19 reads
as under:-
"Save as provided in sub-section (2) and
notwithstanding anything contained in the
Code of Civil Procedure, 1908 (5 of 1908) or
in the Code of Criminal Procedure, 1973 (2 of
1974), or in any other law, an appeal shall lie
from every judgment or order, not being an
interlocutory order, of a Family Court to the
High Court both on facts and on law."

8. Substantive right of appeal is given
under Section 28 of Hindu Marriage Act but
the forum of appeal is determined under
Section 19 of 1984 Act in respect of such
matters which are decided by a Family Court.
A Division Bench of this Court in Smt. Sarla
Devi Vs. Balwant Singh, AIR 1969 Alld. 601,
held that a right of appeal is a substantive
right and is not mere matter of procedure. As
regards where the appeal will lie, it was held
that the words "under any law for the time
being in force" occurring in Section 28 of
1955 Act only mean that the appeal shall be
governed by the provisions contained in the
Act which deals with the forum of Civil
Appeals.

9. The words 'application, petition or
memorandum of appeal' under the Hindu
Marriage Act, 1955 must relate to a
substantive right of appeal under its Section
28 but when the matter is decided by the
Family Court exercising power under Section
7 of 1984 Act, the forum of appeal will be
determined under Section 19 of 1984 Act.
Under Article 21-A of Schedule II of Court
Fees Act as amended by U.P. Act No.44 of
1958 a fixed court fee of Rs.37.50 is payable
on a memorandum of appeal. The appellant
shall not be liable to pay advalorem court fee
on the basis of valuation contained in Section
7(1)(iv) of the Court Fees Act. The appellant
has affixed stamps of Rs.38/- on the memo of
appeal. The court fee paid by the appellant is
held sufficient.
Appeal Allowed.

25,*,1$/ -85,6',&7,21
25,*,1$/ -85,6',&7,21
&,9,/ 6,'(
&,9,/ 6,'(
'$7(' $//$+$%$'
'$7(' $//$+$%$'
%()25(
%()25(
7+( +21·%/( 68'+,5 1$5$,1 -
7+( +21·%/( 68'+,5 1$5$,1 -

&LYLO 0LVF :ULW 3HWLWLRQ 1R RI

6UL 9LMD\ .XPDU .KDQQD
«3HWLWLRQHU
9HUVXV
7KH ,,QG $GGLWLRQDO 'LVWULFW -XGJH .DQSXU
1DJDU DQG RWKHUV
«5HVSRQGHQWV

&RXQVHO IRU WKH 3HWLWLRQHU
6KUL 3UDEKD .DQWD 0LVKUD
&RXQVHO IRU WKH 5HVSRQGHQW
6&
1ALL] Vijay Kumar Khanna V. The IInd A.D.J., Kanpur Nagar and others 39
6KUL &KDQGUD 3UDNDVK

83 8UEDQ %XLOGLQJV 5HJXODWLRQ RI OHWWLQJ
5HQW DQG (YLFWLRQ $FW
 6 D ± 3HWLWLRQHU SXUFKDVHG
KRXVH
LQ
TXHVWLRQ
ILOHG
DSSOLFDWLRQ
IRU
UHOHDVH $SSOLFDWLRQ DOORZHG E\ SUHVFULEHG
$XWKRULW\ RQ JURXQG RI ERQDILGH SHUVRQDO
QHHG
7HQDQW¶V
DSSHDO
DQG
ZULW
SHWLWLRQ
GLVPLVVHG7HQDQW¶V PRWKHU ILOHG LQMXQFWLRQ
VXLW FODLPLQJ WR EH FRWHQDQW 1R REMHFWLRQ
ZDV ILOHG
E\ KHU LQ UHOHDVH SURFHHGLQJV DV
FRWHQDQW ,QMXQFWLRQ
JUDQWHG HDUOLHU ZDV
YDFDWHG$SSHOODWH FRXUW DOORZLQJ WKH DSSHDO
JUDQWHG
LQMXQFWLRQ
WR
WHQDQW¶V
PRWKHU
UHVWUDLQLJ
KHU
HYLFWLRQ
IURP
GLVSXWHG
SUHPLVHV WLOO GHFLVLRQ RI VXLW 2UGHU TXDVKHG
+HOG
,Q FDVH KHU VRQ ZDV UHVLGLQJ DORJZLWK KHU
WKHLU LQWHUHVW ZDV FRPPRQ DQG WKHUH ZDV QR
MXVWLILFDWLRQ QRW WR FRPH IRUZDUG LQ WKH
SHWLWLR ILOHG E\ WKH SHWLWLRQHU XQGHU 6HFWLRQ
 D RI WKH $FW DJDLQVW KHU VRQ
&RQVLGHULQJ WKH HQWLUH IDFWV WKH SURFHHGLQJV
LQ WKH VXLW ILOHG E\ KHU LV DEXVH RI WKH
SURFHVV RI WKH &RXUW
2Q WKH IDFWV LQ WKH SUHVHQW FDVH DV LQGLFDWHG
LW LV FOHDU WKDW UHVSRQGHQWV QR DQG ZHUH
LQ FROOXVLRQ 5HVSRQGHQW QR LV FRQWHVWLQJ
WKH PDWWHU VLQFH WKH \HDU DQG PRUH
WKDQ \HDUV KDYH DOUHDG\ SDVVHG 3DUDV

&DVHV /DZ 5HIHUUHG
$,5 6&
 $5&

By the Court.

1. The petitioner seeks to quash the dated
16.7.1999
passed
by
respondent
No.1
whereby he has granted injunction order
restraining
the
petitioner
from
taking
possession of the property in dispute which
has been released in his favour. The
chequered history of the case is briefly stated
as under:-

2. The petitioner purchased house
No.118/211(2-6), Kausalpurj Kanpur Nagar.
One Sardar Ram Singh was alleged to be
tenant of the house. He got constructed his
own house No.8/7, Krishna Nagar ,Kanpur
City wherein he shifted his possession. His
son Ajeet Singh continued in possession and
the rent receipt was issued in his name. The
petitioner
gave
a notice on 20.1.1981
demanding arrears of rent. He failed to
comply with the notice. The petitioner filed a
notice on 20.1.1981 demanding arrears of
rent. He failed to comply with the notice. The
petitioner filled a suit No.262 of 1982 on
20.3.82. The suit was decreed exparte. Ajeet
Singh filed an application to set-aside the
decree. His application was allowed, and the
said suit is still pending.

3. The petitioner also filed an application
for release of the disputed house under
Section 21(1) (a) of the U.P. Act No. XIII of
1972 against Ajit Singh, the tenant on the
ground that it was bonafide needed by him.
Ajeet Singh contested the application. It was
denied that the need of the landlord-petitioner
was bonafide. The Prescribed Authority
allowed the application on 23.6.86 on the
finding that the disputed house was bonafide
required by the petitioner Ajeet Singh filed an
appeal against the said judgment. The appeal
was dismissed on 16.1.1987. He further filed
writ petition No.2572 of 1987. But no stay
order was passed by the court at the time of
filing of the writ petition.

4. As there was no stay order in the said
writ petition, mother of Ajeet Singh, namely
Trilochan Kaur, respondent No.2 filed suit
No.387 of 1987 against the petitioner for
injunction alleging herself to be sole tenant of
the disputed house. She filed an application
for interim injunction. The trial court granted
interim injunction. The petitioner filed a
application for vacating the injunction order
was vacated on 30.5.187. In the meantime,
writ petition No.2572 of 1987 was admitted.
and the court granted interim stay order
staying eviction of Ajeet Singh from the
disputed house. Thereafter Trilochan Kaur got
her suit No.387 of 1987 dismissed on
17.8.1987 and filed another suit No.1326 of
INDIAN LAW REPORTS ALLAHABAD SERIES [2000
40
1987 wherein se alleged that she was cotenant of the disputed house along with Ajeet
Singh and obtained a temporary injunction in
her second suit No.1326 of 1987. The
petitioner filed an application before the Trial
Court to vacate injunction order. The trial
court vacated injunction order on 12.4.99.
Trilochan Kaur filed Misc. Civil Appeal
No.147 of 1999 against the order dated
12.4.99. Respondent No.1 has allowed the
appeal vide impugned order dated 16.7.99 and
has
granted
injunction
restraining
the
petitioner from evicting her from the disputed
premises till the decision of the suit.

5. In the meantime, writ petition filed by
Ajeet Singh s/o Trilochan Kaur has been
dismissed on 27.1.99 by this Court.

6. Another limb of the relevent fact is
that the petitioner was staying in another
premises in house No.118/400 owned by one
Shri Ramesh Chand Bhatia. He filed an
application before the Rent Control and
Eviction Officer that the accommodation in
occupation of the petitioner be treated as
vacant and be released in his favour. His
application was allowed by the Rent Eviction
Officer. The petitioner preferred a revision
against this order which was dismissed. He
further filed a writ petition No.44516 of 1998
and it has been dismissed on 28.1.1999. The
petitioner was however, granted six months'
time to vacate the accommodation which was
owned by Ramesh Chad Bhatia.

7. Now the result is that the petitioner is
being
sought
to
be
evided
from
the
accommodation which is owned by Shri
Ramesh Chand and on the other hand he has
not obtained the possession of the house
which he got released under Section 21(1) a
of the U.P. Act No. XIII of 1972.

8. Trilochan Kaur has filed a suit No.387
of 1987 claiming herself to be sole tenant. She
withdraw the suit and filed another suit
No.1326 of 1987 alleging that she is co-tenant
alongwith her son. Her version was that her
husband Ram Singh remarried another lady in
the year 1965 and thereafter she continued to
occupy the house in question along with Ajeet
Singh .It has not been disclosed as to the
tenancy tid arise. Ram Singh the alleged
tenant is alleged to have constructed his own
house in Krishna Nagar. The accommodation
has been declared vacant. The Landlord
subsequently accepted Ajeet Singh as tenant.
He was paying rent. An application was filed
against him by the petitioner in the year 1983
under section 21(1)(a) of the Act. A written
statement was filed by Ajeet Singh and in that
written statement he never alleged that his
mother Trilochan Kaur is also one of the cotenant. The prescribed authority allowed the
application of the petitioner on 23.6.93.Ajeet
Singh filed an appeal against the said order.
The appeal was dismissed on 16.1.87 .He
further filed writ petition No.2572 of 1987
and the writ petition was dismissed on
27.1.99. Trilochan Kaur never filed an
application in this proceedings that she is cotenant and she should be impleaded as a party.

9. Even otherwise it she was a joint
tenant, her interest represented by her son. It
was never the case of Kaur that her son was
not residing in the disputed house in case her
son was residing alongwith her, their interest
was common and there was no justification
not to come forward in the petition field by
the petitioner under Section 21 (1) (a) of the
Act against her son.

10. Respondent no. 1 has taken the view
that there are certain rent receipts which are
alleged to have been issued by the petitioner
in the name of Trilochan Kaur. This fact is
denied by the petitioner. It is however, not
necessary to go into the question of fact as I
have found that the interest of Trilochan Kaur,
the respondent and her son Ajeet Singh was
common. Considering the entire facts, the
proceeding in the suit filed by her is abuse of
the process of the court.
1ALL] M/s A.K. Enterprises V. Sterling Machine Tolls and another 41
11. In H.C. Pandey v. G.C. Paul, AIR
1989 SC 1470, it was held that where the
tenant dies, his heirs succeed as joint tenants
and not as tenants in common. The incidence
of the tenancy would be the same as those
enjoyed by the original tenant. There will be
no division of the premises of the rent payable
thereof. In case the tenants were joint tenants
residing together and one of the tenants never
raised any objection to the proceeding under
section 21(1) (a) of U.P. Act No. 13 of 1972,
it will be deemed that the interests ware
jointly represented before the prescribed
authority. The application filed by the
landlord under section 21 (1) (a) of the Act on
the ground of bona fide need.
The tenant contested on the ground that it
is not bonafde need. He also pleaded his own
hardships. On the facts in the present case. as
indicated, it is clear that respondents No.2 and
3 were in collusion. Respondent No.3 is
contesting the matter since the year 1981 and
more than 18 years have already passed.

12. In Smt. Raj Kumari Kapoor v. Civil
Judge, Kanpur and others, 1986(2) ARC 469,
where the suits were filed seeking injunction
against the order passed by the suits were
filed seeking injunction against the order
passed by the Prescribed Authority, the Court
examining the facts, held that the proceedings
in the suit may amount to abuse of process of
Court and it can be quashed under Article 226
of the Constitution of India.

13.
Considering
the
facts
and
circumstances of the entire case, the writ
petition is allowed, and I quash the order
passed by the respondent No.1 dated 16.7.99.
The prescribed authority is to execute the
release order passed in favour of the petitioner
immediately and the senior Superintendent of
Police, Kanpur Nagar is directed to take the
possession of such premises from respondent
No.2 and 3 within one week from the date of
production of certified copy of this order and
hand-over its possession to the petitioner.
Petition Allowed.

5(9,6,21$/ -85,6',&7,21
5(9,6,21$/ -85,6',&7,21
&,9,/ 6,'(
&,9,/ 6,'(
'$7(' $//$+$%$'
'$7(' $//$+$%$' QG
QG 1RYHPEHU
1RYHPEHU
%()25(
%()25(
7+( +21·%/( ,048''86,-
7+( +21·%/( ,048''86,-

$GGLWLRQDO 'LVWULFW -XGJH $JUD LQ VXLW 1R RI

&LYLO 5HYLVLRQ 1R RI

06 $. (QWHUSULVHV
$SSOLFDQW'HIHQGDQW
9HUVXV
6WHUOLQJ
0DFKLQHV
7ROOV $JUD
DQG
DQRWKHU
2SS3DUWLHV3ODLQWLIIV

&RXQVHO IRU 5HYLVLRQLVW
0U 5. -DLQ
0U 0DGKR -DLQ
&RXQVHO IRU 5HVSRQGHQWV
0U53 *RHO
0U0DQLVK *RHO

7UDGH DQG 0HUFKDQGLHV 0DUN $FW 6
VXLW
IRU
LQIULQJHPHQW
RI
5HJLVWHUHG
7UDGH
0DUNGHFLGHG
E\
WKH
$GGLWLRQDO
'LVWULFW -XGJHZKHWKHU WKH RUGHU SDVVHG E\
WKH
$GGLWLRQDO
'LVWULFW
-XGJH
LV
ZLWKRXW
MXULVGLFWLRQ" +HOGμ
+HOG+HQFH
LI
WKH
'LVWULFW
-XGJH
KDV
DVVLJQHG DQ\ ZRUN WR WKHP RU WR DQ\ RI WKH
$GGLWLRQDO 'LVWULFW -XGJH WKH VDPH VKDOO EH
GHHPHG WR KDYH EHHQ GLVFKDUJHG DV LI WKH
VDPH KDV EHHQ GLVFKDUJHG E\ WKH 'LVWULFW
-XGJH
7KHUH LV QR UHVWULFWLRQ WR WU\ WKH VXLW E\ DQ\
RWKHU FRXUW RI HTXDO VWDWXV DV SURYLGHG LQ
VHFWLRQRI WKH %HQJDO $JUD DQG $VVDP
FLYLO FRXUW $FW ,Q YLHZ RI WKLV LW FDQQRW EH
VDLG WKDW WKH $GGLWLRQDO 'LVWULFW -XGJH KDV QR
MXULVGLFWLRQ WR WU\ WKH VXLW %HVLGHV WKLV WR P\
PLQG HYHQ LI WKH GLVWULFW -XGJH WDNHV DLG IURP
WKH $GGLWLRQDO 'LVWULFW -XGJH IRU WKH SXUSRVH
RI LQVWLWXWLRQ RI D VXLW WKH VDPH LV OLDEOH WR EH
LQVWLWXWHG
LQ
WKH
3ULQFLSDO
FLYLO
FRXUW
RI
RULJLQDO MXULVGLFWLRQ DV WKH $GGLWLRQDO 'LVWULFW
-XGJH LV SDUW DQG SDUFHO RI WKH 'LVWULFW
-XGJH SDUD DQG
&DVH ODZ GLVFXVVHG
$,5 .HUOD
$,5 0DG
 $:&
$,5 $OOG
INDIAN LAW REPORTS ALLAHABAD SERIES [2000
42
$,5 0DG
$,5 $VVDP
$,5 $3

$,5 &DO ,

By the Court

1. Under Section 105 of the trade &
Merchandise
Marks
Act,1958(hereinafter
referred to as 'Act'). It has been provided that
no suit for infringement of a registered trade
mark, or relating to any right in a registered
trade mark, or for passing off arising out of
the use by the defendant of any trade mark
which is identical with or deceptively similar
to
the
plaintiffs'
trade
mark
whether
registered or unregistered, shall be instituted
in any Court inferior to a District Court
having jurisdiction to try the suit.

2. In this revision, a short question is
involved as to whether the court of Additional
District Judge can try and decide the suit
instituted in the Court of District Judge and
later in transferred to it for trial and decision
and whether the court to a District Court. The
"District Court" has been defined in clause (e)
if sub- section(1) of section 2 of the Act.
According to which, "district court" has the
meaning assigned to it in the Code of Civil
Procedure 1908.

3. I have heard Sri. R.K. Jain, learned
Senior Advocate assited by Sri Madho Jain
for
the
revisionist
applicant
and
Sri
R.P.Goel,learned Senior Advocate assisted by
Sri Manish Goel for the opposite parties at
quite length.

4. The brief facts of the case are that the
opposite parties instituted a Suit for relief of
prohibitory
injunction
restraining
the
defendants and its agents from manufacturing,
selling, offering for sale, advertising or
indirectly dealing in diesel Engines, Pumpssets and generating sets under the Trade Mark
"Bharat" or "Bharat Marchal". The suit was
instituted in the Court of District Judge, Agra
and was registered as suit No.2 of 1995 (M/S
Sterling Machine Tools-Plaintiff no.1,Shivas
Industries-plaintiff no.2 Vs. A.K. Enterprises
defendant). The notice was issued by the
District Judge, Agra and the defendantrevisionist
filed
written
statement.
The
District Judge then transferred the suit to the
Court of 2nd Additional District Judge, Agra.
Thereafter, the plaintiff filed replication and
argument were heard. The matter was fixed
for delivery of judgement on 26th May,1998,
but the Court of 2nd Additional District Judge
was lying vacant from June,1998 as such, the
plaintiffs
moved
an
application
for
transferring the case from that Court.
Thereafter, the District Judge transferred the
case to the Court of 12th Addl. District Judge,
Agra and then the matter was fixed for rehearing. On 28th May,1998, the revisionist, for
the first time, moved application (53-Ga) to
the effect that the Court of 12th Addl. District
Judge has no jurisdiction to try the Suit which
was heard and rejected by the said order dated
23.1.1999. Being aggrieved by the said order,
the revisionist has preferred the present
revision under section 115 C.P.C.

5. In the Code of Civil Procedure, 1908,
the word "district" has been defined as under
:-
"district" means the local limits of the
jurisdiction of a principal Civil Court of
original jurisdiction (hereinafter called a
"District
Court"),and
includes
civil
Jurisdiction of a High Court."

6. The contention of Sri R.K. Jain is that
Additional
District Judge cannot be a
principal Civil Court of original jurisdiction
and there can be only one Principal Civil
Court of original jurisdiction. It is not possible
to say although the Additional district Judge is
not "Principal" Civil Court of original
jurisdiction", still the suit under section 105 of
the Act can be instituted in the Court of
Additional
District
Judge.
His,
further
contention is that the power to transfer of a
suit or appeal or other proceedings under
section 24 CPC cannot be invoked to transfer
1ALL] M/s A.K. Enterprises V. Sterling Machine Tolls and another 43
a suit under section 105 of the Act from the
Court of Principal Civil Court of original
jurisdiction to the Court of District Judge
unless there is a provision empowering the
District Judge to do so. The object behind
under section 105 of the Act is that suit should
not only be not instituted in any court inferior
to District Court. He has further argued that
the words "having jurisdiction to try the suit"
in section 105 of the Act denote that the suit
should not only be instituted in the district
court, but should also be tried by it. Hence,
the
Additional
District
Judge
has
no
jurisdiction to try and decide the suit in
question which has been filed under section
105 of the Act. In support of his contention,
he has cited some case laws. In AIR 1986
Kerala 12 K.I. George and another Vs. C.
Cheriyan & others it has held that the
Munsif's Court had no jurisdiction to try the
suit and in view of S.62 of the same. In AIR
1967 Mad.121 The Daily Calendar Supplying
Bureau, Sivakasi Vs. The United Concern, a
division bench has held that it will not be
proper to resort to the definition given in S.3
of General Clauses Act,1897 of the term
"District Judge", may well happen that in
certain cases, a District Judge may not be
equivalent to the Presiding Officer of a
District Court. The Civil Procedure Code, to
which reference is made in the definition
Cause in some of the other enactment's like
Guardians and Wards Act and the Indian
Patents and Designs Act already referred to in
section 2(4) gives the definition of 'District'
and it was held that the term of section 62,
specially
sub-section(2)
imply
that
the
definitions of District and District Court in
the Civil Procedure Code will apply for the
purpose of determining the jurisdiction under
the Copyright Act. We hold that the High
Court has jurisdiction to try the Suit. In this
connection, decision reported in 1998(3)
AWC2244(I.T.I. Naini Vs. District Judge
Allahabad)has also been cited by Sri R.K. Jain
which is respect of Arbitration Act, and it was
held therein that the Additional District Judge
is shorn of jurisdiction to entertain and
application under Section 34 of the Act and
the District Judge cannot by invoking the
provisions contained in section 8(2) of the
Bengal, Agra and Assam Civil Courts Act,
1887,transfer the application for its disposal to
the Court of an Additional District Judge may
have
the
jurisdiction
to
entertain
an
application under section 34 of the Arbitration
and Conciliation Act, which is transferred to
his court by the District Judge under Section
(2)of the Bengal, Agra and Assam Act,1887,
provided that the transfer of the application by
the District Judge to the Court of an
Additional District Judge is not inhibited by
the former Act. It was held in para.12 therein
that an application for setting aside an award
under section 34 of the Act is as much an
application "with respect to an arbitration
agreement" as it is for "setting aside the
arbitration award" and it is a matter of
statutory compulsion that such application is
made to the principal civil court of original
jurisdiction in a district or the High Court in
exercise
of
its
ordinary
original
civil
jurisdiction having jurisdiction to decide the
questions forming the subject matter of a suit
and it is again a matter of statutory mandate
that the Court to which the application is
made alone shall have jurisdiction over the
arbitral
proceedings
and
all
subsequent
applications arising out of that agreement, and
the Court and no other expect the appellate
court being in seisin over the matter. The
power to transfer assign the application to any
other Court, otherwise having jurisdiction to
decide the question forming the subject-matter
of arbitration, had it been the subject-matter
of a suit, has been impliedly taken away by
section 42 of the Act which is couched in a
language fraught with overriding effect. I am
conscious of the fact that the view I am
taking, may result in adding burden to the
district Judge but the plain or unambiguous
words of the statute i.e. words which are
reasonably susceptible to only one meaning
will have to be given effect' irrespective of
consequences (see Nelson Motis Vs. U.O.I.
AIR 1992 SC.1981).
INDIAN LAW REPORTS ALLAHABAD SERIES [2000
44

7. Sri R.P. Goel, learned senior counsel
for the opposite parties contended that subsection(e) of section-2 of the Act made it clear
that the provisions of Code of civil Procedure
is applicable to the Act. He has further argued
that Section 110 of the Act provides for rule
making powers of the High Court. The High
Court has made Rules in this regard which are
given in Chapter-35-A of the Allahabad High
Court Rules. Rule-11 of these Rules provide
for application of Civil Procedure Code to the
Act. In Civil Procedure Code, the word
"district court" has not been defined. Thus, in
order to construe the definition as given in
section 2(e) of the Act, reference is made to
the meaning of the word 'district' and the
meaning of the word 'court' as have been
used in the Civil Procedure Code. He has
further submitted that inferior in grade
implies that against an order passed by
inferior court, the remedy will lie before the
court of superior jurisdiction and as the orders
passed by Additional District Judge cannot be
challenged before the District Judge in appeal,
revision or reference etc. it cannot be said that
the Court of Additional District Judge is
inferior to the court of District judge. The next
higher forum against the orders of Additional
District Judge will be the High Court for the
reason that Section 3 of Code of Civil
Procedure provides that the district Court will
be subordinate to the High Court, hence the
Additional District Judge cannot be termed
separately to the District Judge in exercise of
the jurisdiction in judicial side. He has placed
reliance on the following cases, details of
which are given as under :-
1. AIR 1986 Alld.234 Smt.Shankuntal Devi
Vs. Amir Hasan.
In this case, it has been held that whenever
any matter is transferred to the Addl. District
Judges, then the Addl. District Judges are
exercising the same powers as of the District
Judges.
2. In AIR 1988 (M) 24 M/S Badrilal Jodhraj
& Sons Vs. Girdharilal and another, it has
been held that there is no subordination
between the additional district Judges and
district Judges so as to empower the District
Judge to exercise the revisional powers under
section 115 C.P.C. in respect of the order
passed by the court of Additional District
Judge.
3. In AIR 1959 (M) 188 Gauri Shanker Vs.
Firm Dulichand Laxmi Narayan, it has been
held that Additional District Judge but the
court of an Additional District Judge cannot in
terms of Section 3 of the Civil Procedure
Code be said to be subordinate to the District
Court itself as it is in no sense a civil Court of
a grade inferior to that of a District Court. The
Court of Civil Judge would certainly be such
inferior court.
4. In AIR 1954(Assam) 161 G.C.Bezbarua
Vs. State of Assam, it has been held that the
word "District Judge" in section 7(3) (b) of
the Industrial Disputes Act includes an
Additional District Judge and it would be,
therefore,
unreasonable
to
exclude
an
Additional District Judge from that category
of the District Judge who for all practical
purposes
discharges
the
same
judicial
functions as the District Judge.

5. In AIR 1962(AP) 127, The Western India
Match Co.Ltd.Vs. Haji Abbas Hussain Mullah
Ehsan Ali, it has been held that City Civil
Court whose Presiding Officer is Additional
Chief Judge is not Court inferior to the City
Civil Court whose presiding Officer is the
Chief Judge. It follows that Section 73 of the
Trade Marks Act does not bar the trial of the
suit by the lower court and that the lower
court has jurisdiction to try it.
6. In AIR 1961(Calcutta)-1,Nripendra Nath
Bagchi Vs. chief Secy. Govt. of Bengal, it has
been held that the expression 'District Judge'
includes inter-alia an Additional District
Judge in Article 236 of the Constitution.
Before proceeding further, it would be
necessary to peruse the relevant provisions of
the Act which are quoted below:
SECTION 2(1) (e):
"district Court" has the meaning assigned to it
in Code of Civil Procedure,1908.
1ALL] M/s A.K. Enterprises V. Sterling Machine Tolls and another 45
SECTION 105: Suit for infringement, etc. to
be instituted before District Court-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; shall be instituted in any court
inferior to a District Court having jurisdiction
to try the suit."
Likewise, the provisions of code of Civil
Procedure are also liable to be persued which
are quoted herein below:
SECTION 2(4) C.P.C.
"district" means the local limits of the
jurisdiction of a principal Civil court of
original jurisdiction (hereinafter called a
"District Court") and includes the local limits
of the original Civil jurisdiction of a High
Court."
Provisions of Section 8 of Bengal, Agra &
Assam Civil Courts Act are also relevant
which are as under :-
SECTION 8 (1):Additional Judges:
"Where the business pending before any
District Judges requires the aid of Additional
Judges for its speedy disposal, the State
Government may, having consulted the High
Court appoint such Additional Judges as may
be requisite.
(2) Additional Judges so appointed shall
discharge any of the functions of a District
Judge which the District Judge may assign to
them, and, in the discharge of those functions,
they shall exercise the same powers as the
District Judge."

8. Now first of all, the provisions of
section 105 of the Act are to be considered
which provide that no suit shall be instituted
in any Court inferior to a district Court having
jurisdiction to try the suit. Here we are
concerned with the institution of suit and the
district court having jurisdiction to try the
suit. In plain and natural meaning in respect of
the institution to try the suit and in a district
court having jurisdiction to try the suit would
be that the suit is liable to be instituted in the
district court having jurisdiction to try the
suit. Meaning thereby that in case, suit is
liable to be instituted within the territorial
jurisdiction of a district court due to court due
to cause of action etc., the same cannot be
instituted in any other district court of
different territorial jurisdiction which has no
jurisdiction to try suit due to the reason that
the cause of action has not arisen within the
territorial jurisdiction of that court and the
words "having jurisdiction to try the suit"
make it clear that no other district court than
the district court under whose territorial
jurisdiction the cause of action for instituting
the suit has arisen in accordance with law.
Now coming to the "district court" we have to
consider the definition of the 'district' given
in sub-section (4) of section 2 CPC according
to which "district" means the local limits of
the jurisdiction of a principal Civil Court of
original jurisdiction (hereinafter called a
"District Court"), and includes the local limits
of the ordinary original civil jurisdiction of a
High Court. The local limit of jurisdiction of
principal civil court of original jurisdiction
have been assigned and no separate or
independent and the post of Additional Judges
have been created under Bengal, Agra &
Assam Civil Court Acts for speedy disposal
of the cases by the district court with the aid
of the additional Judges. The intention of the
legislature to create the post of additional
Judges according to the requirement in the
district is for the speedy disposal of the cases
by the District Judge with the aid of the
Additional Judges. In view of this, it can be
said that the District Judge decides cases with
the aid of Additional Judges, they discharge
all functions as additional Judges in discharge
of the functions of all District Judges. Hence,
the Additional district Judge is part and parcel
of the District Judge and is covered within the
definition of 'district Court. Had there been a
separate identity or conferment's of limits of
territorial
jurisdiction
separately
to
the
INDIAN LAW REPORTS ALLAHABAD SERIES [2000
46
Additional District Judges with over all
control over all the Additional District Judge
with the territorial jurisdiction conferred to
them, by the District Judge conferring upon
them total territorial jurisdiction of all the
Additional Judges, it could have been said
that the Principal Civil Judge of original is the
District Judge and under his control with the
small territorial jurisdiction, the Addl. District
Judge cannot be termed as Principal Civil
Court of original jurisdiction. For example,
the
provisions
regarding
Executive
Magistrates as provided in the Criminal
Procedure Code, the State Government has
been conferred powers to appoint in every
district and in every metropolitan area, as
many as persons as it thinks fit to be
Executive Magistrate and shall appoint one of
them to be the District Magistrate and the
District Magistrate has been empowered to
define the local limits of the areas within
which the Executive Magistrate exercises all
powers which may be invested under the
Code of Criminal Procedure and for all
purposes those Executive Magistrates shall be
subordinate to the District Magistrate but they
have been conferred jurisdiction over their
respective areas which they exercise and the
District Magistrate has also to exercise the
same powers within his district which an
Executive magistrate exercises within his sub
division. In that case, it cannot be said that an
Executive Magistrate to whom a particular
areas has been assigned to exercise the
jurisdiction and powers of an Executive
Magistrate independently, is part and parcel of
the District Magistrate or is not inferior to the
District
Magistrate.
In
the
matter
of
Additional District Judges, the jurisdiction is
exercised by them without any limitation of
area and he can exercise jurisdiction over the
whole area of the district court. Hence, in
view of the provisions of sub-section (2) of
Section-8 of Bengal, Agra & Assam Civil
Court, Acts, an order passed by the Additional
District Judge, for all purposes shall be
deemed to have been passed by the District
Court. The Additional District Judge is part
and parcel of the district court and for all
purposes, it is district court within the
meaning of section 2(1) (e) of the Act.

9. The intention of the legislation to
restrict the institution of suit in a district court
and not in any court inferior to a district court
is that the district court may not hear the
appeals over the overs/judgements passed by
the inferior court. Hence, the purpose of
making such restriction by the legislature
would not certainly be defeated if the suit is
tried by Additional District Judge appointed
by the State Govt. after having consulted the
High Court for the aid of District Judge for
speedy disposal of the cases pending the
District Judge. Further, it is a matter of
consideration that the word" any court inferior
to a district court used in section 105 of the
Act is meant the court inferior to district court
in the administrative matters or inferior to a
district court in respect of the exercise of
judicial powers. To my mind, the restriction
imposed under restriction imposed under
section 105 of the Act regarding institution of
suit in the inferior court restriction imposed in
section 105 of the Act regarding institution of
suit in inferior Court to district court can notes
in respect if judicial exercise and not on
administrative side. This section has no
concern with the administrative affairs nor
with the management of the courts. It has only
concern with the judicial exercise of the
powers.

10. The case law referred to in the instant
case by Sri R..K.Jain, learned counsel for
revisionist- applicant are also liable to be
considered
in
the
light
of
the
above
discussion. The case of Smt. Shakuntala Devi
(supra) referred by Sri R.K.Jain lays down
that the District Judge under his power under
section 24 C.P.C. can transfer any application
moved before him to the court of Additional
District Judge for disposal and the Additional
District Judge rejected the application for
transfer of suit by observing that the
applicant/plaintiff could move an application
1ALL] M/s A.K. Enterprises V. Sterling Machine Tolls and another 47
in the court concerned (trial court) for
withdrawl of the suit with permission to file
the same in the court of competent jurisdiction
and the order was not without jurisdiction and
the order was not without jurisdiction . This
case has no relevance with the matter in
question. The other case of K.I. George
(supra) in which, it has been held that the
Munsif's Court had no jurisdiction to try the
suit and view of section 62 of the Copyright
Act, 1957, the district Court had only
jurisdiction to try the same, has also no in the
matter in hand as in that case, the suit was
instituted in the Court of Munsif and it was
held that the Munsif had no jurisdiction and
the district court had only jurisdiction to try
the suit, but it was a matter of consideration
before that court that the Additional District
Judge comes within the 'district court' or not.
In the matter of The Daily calendar
Supplying Bureau (supra) it has been held that
when the High Court exercises its original
civil jurisdiction over the City Court, it can be
deemed to be a district court, hence, this case
law has also no relevance in the matter in
hand. In the matter of I.T.I. Ltd. (supra), it
has been held that the court of Additional
District Judge is shorn of jurisdiction to
entertain an application under section 34 of
the Arbitration Act and the District Judge
cannot invoke the provisions of section 8(2)
of the Bengal, Agra & Assam Civil Courts
Act,1887, transfer the application for its
disposal to the Court of an Additional District
Judge, but the provisions of section 42 if the
Arbitration Act are not parameteria to section
105 of the Trade & Merchandise Marks
Act,1958. The provisions of section 42 of the
Arbitration Conciliation Act,1996 are quoted
herein below : " 42 Jurisdiction :-
Notwithstanding
anything
contained
elsewhere in this part or in any other law for
the time being in force, where with respect to
an arbitration agreement any application
under this part has been made in a Court , that
Court alone shall have jurisdiction over the
arbitral
proceedings
and
all
subsequent
applications arising out of that agreement and
the arbitral proceedings shall be made in that
Court and in no other court."

11. A perusal of the above provisions
show that the word "alone" has been used
therein, meaning thereby that no other court
expect with respect to Arbitration Agreement,
any application under that part has been made,
shall have jurisdiction over the arbitral
proceedings. The word "Court" has been
defined in section 2(e) of the Arbitration and
Conciliation Act,1996. According to which,
the "court" means the principal civil Court of
original jurisdiction in a district, and includes
the High Court in exercise of its ordinary
original civil jurisdiction, having jurisdiction
to decide the question forming the subjectmatter of a suit but does not include any civil
court of a grade inferior to such principal
civil Court of any court of small Causes. The
word"alone" does not find place in section
105 of the Act.

12. Hence it cannot be said that the
provisions of Section 42 of the Arbitration
and Consiliation Act, 1996 are paramateria to
the provision of Section 105 of the Act. In my
view the court which has jurisdiction to try a
suit to be tried by principal Civil Court of
original jurisdiction. Learned counsel for the
respondents Sri R.P. Goel has submitted that
the provisions of Civil Procedure Code are
applicable in the proceedings held under the
Act. He has referred Section 110 of the Act in
which power of High Court to make rule
consistent with these Act as to the conduct
and procedure of all proceedings under the
Act, before it has been conferred. In Chapter35-a of the Allahabad High Court Rules, 1952
the rules under the Trade and Merchendise
Marks Act have been framed. In Rule 11 of
the application of Code of Civil Procedure
and Rules and Forms of the Courts have been
provided, which is reproduced below :
"Application of the Code of Civil
Procedure and Rules and Forms of the Court-
Matters not provided for in the foregoing
Rules shall be governed by the provisions of
INDIAN LAW REPORTS ALLAHABAD SERIES [2000
48
the Code of Civil Procedure 1908, and the
Rules of the Court, shall apply mutatis
Mutandis to all proceedings under the
Act.Provided that it shall not be necessary for
the Court to frame issues."

13.