# NATIONAL SEWING THREAD CO. LTD v. JAMES CHADvVICK & BROS. LTD

- **Citation:** [1953] 1 S.C.R. 1028
- **Court:** Supreme Court of India
- **Decided:** 1951-03-19
- **Bench:** Mehr Chand Maha.Jan, VIVIAN BosE, Jagannadha Das
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/national-sewing-thread-co-ltd-v-james-chadvvick-bros-ltd-93
- **Pages:** 21

## Headnote

Trade Marks Act, 1940, ss. 8, 76-Application for registration
of trade mark -Dismissal by Registrar -Appeal to High Co11rtJttdgment of Single Jnd.ge--TVhether appealable to Division BenchLettcrs Patent (Bombay), cl. 15--Government of India Act, 1915,
s. ZOS-Constit11tion of India, 1950, s. 226-Power of Registrar w
reject application if nirirk is likely to deceive ot cause confusionDecision in passina ofl action, whether conclitisivc.
Section 76(1) of the Trade Marks Act, 1940, provides that an
appeal shall lie from any decision of the Registrar under the Act
or the rules made thereunder, to the High Court having jurisdiction, but the Act did not make any provision with regard to the
procedure to be followed by the High Court in the appeal or
as to whether the order of bhe High Court was appealable:
Held, that the High Court had to exercise its appellate jurisdiction
under s. 76 of the Act in the same manner as it exercised its other

## Text

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•
1028
SUPREME COURT HEFORTS
[1953]
1953
c:liscretion of the courts below in re.(using to grant
,, d--L '·
relief against forfeiture .
..L\ ani ea
011.'m,an
Lodhi
The result, therefore, is that this appeal fails and is
v.
dismissed with costs.
NaNnadabai
an;d Others.
1953
Ma,y 7.
Appeal dismissed.
Agent for appellant: R. A. Govind.
Agent for respondents: Rajinder Narain.
NATIONAL SEWING THREAD CO. LTD.
v.
JAMES CHADvVICK & BROS. LTD.
(J. & P. COATS LTD., Assignee)
REGISTHAR OF THADE MAHKS-Intervener.
[MEHR CHAND MAHA.JAN, VIVIAN BosE and
JAGANNADHA DAS JJ.]
Trade Marks Act, 1940, ss. 8, 76-Application for registration
of trade mark -Dismissal by Registrar -Appeal to High Co11rtJttdgment of Single Jnd.ge--TVhether appealable to Division BenchLettcrs Patent (Bombay), cl. 15--Government of India Act, 1915,
s. ZOS-Constit11tion of India, 1950, s. 226-Power of Registrar w
reject application if nirirk is likely to deceive ot cause confusionDecision in passina ofl action, whether conclitisivc.
Section 76(1) of the Trade Marks Act, 1940, provides that an
appeal shall lie from any decision of the Registrar under the Act
or the rules made thereunder, to the High Court having jurisdiction, but the Act did not make any provision with regard to the
procedure to be followed by the High Court in the appeal or
as to whether the order of bhe High Court was appealable:
Held, that the High Court had to exercise its appellate jurisdiction
under s. 76 of the Act in the same manner as it exercised its other
appellate jurisdiction, and \vhen such jurisdiction was exercised by
a Single Judge, his judgment was appealable under cl. 15 of the
l~etters Patent.
National Televhone Co. v. Postmaster General ([l 913] A.C.
546), R. M.A. R. A. Adaikavva Chettiar v. Ra. Chandrasekham
Thevor (74 I.A. 264), Secretary of State v. Chellikani Ram'" Rao
(I.L.R. 39 Mad. 617) referred to.
The power conferred by s. 108 of the Government of
India Act, 1915, on tbe High Courts, of making rules for the
exercise of their jurisdiction by Single Judges or by Divisio~
Courts could be exercised not only in respect to such jurisdiction
,
s.c.R.
SUPREME COURT REPORTS
1029
as the High Court~ possessed when the Act of 1016 came into
1933
force but also in respect of jurisdictions conferred on the High
--
Court by subsequent legislation, e.g., s. 76 of the Trade :\larks Act . .Vational Sewing
Coder the rules of construction enunciated in s. 8 of the Thread Go. Ltd.
Genernl Clauses Act and s. 38 of the Interpretation Act, which
v.
.
are of general application, the reference to s. 108 of the Govern· Jrunes Chadwick
ment of India Act, 1915, in cl. 15 of the Letters Patent should, awl Bros. Ltd.
after the enactment of the Constitution of 1950, be read as reference to the corresponding provisions of art. 225 of the Constitution.
The ambit of the power conferred on the High Courts by
s. 108 of the Government of India Act, 1915, is not limited by
s. 106(1) of the said Act or by cl. 16 of the Letters Patent of the
Calcutta High Court.
Indian Electric Works v. RIJ!listrar of Trade Marks (A.LR.
194 7 Cal. 49) overruled.
Secretary of State v. Jlask & Co. (67 I.A. 222) and the Gttrdwara Case (63 I.A. 180) distinguished.
The respondents, a company registered in England, manufactured sewing thread with the device of an Eagle with outspread
wings kno\vn as the "Eagle l\fark" as their trade mark, and since
1896 this thread was being sold in the Indian markets on an exLensi \'e scale.
The appellants, a company registered in India,
began in 1940 to sell sewing thread with the device of a bird
resembling an eagle with wings fully spread out with the words
"Eagle Brand" as their mark.
On the objection of the respondents the appellants subsequently changed the name to "Vulture
Brand" without changing the mark in other respects. The respondents instituted an action against the appellants for passing
off, but that was dismissed.
The appellants subsequently applied
for registration of their trade mark but their application was dismissed by the Registrar on the ground that the appellants' mark
so nearly resembled the respondents' mark as to be likely to
deceive the public and cause confusion.
This order was reversed
by a Single Judge of the High Court of Bombay but restored on
appeal by a Division Bench:
Held (i) that the judgment of the Division Bench upholding
the order of the Registrar rejecting the application, on the ground
that the mark was likely to deceive and cause confusion, was right;
(ii) that the considerations relevant in a passing off action are
somewhat different from those which are relevant in an application
for registration of a trade mark under the Trade Marks Act, and
the earlier judgment of the High Court in the action for passing
off \Vas not conclusive on the matter. ·
CIVIL APPELLATE JURISDICTION :
Civil Appeal
No. 135 of 19.52.
Appeal from the Judgment and Order dated the
19th March, 1951, of the High Court of Judicature at
'
l030
siJ:PREME coun:r REPORTS
[1953j
19;3
Bombay in Appeal No. 95 of 1950 aiising from the
. -
. Order dated the 28th August, 1950, of the said High
~~~'
0
':;/0
8'"/::i;9 Court exercising its Ordinary Original Civil J urisdicre v. o.
· tion in Civil Miscellaneous No. 2 of 1950.
James Oluuiwick
Bishan Narain (Sri Narain Andley with him) for
and Bros. Ltd. the appellants.
11:!. G. Setalvad, Attorney-General for Indi.a, and
G. K. Daphtary, Solicitor.General for India (J. B.
Dadachanji, with them) for the respondents.
Registrar of 'l'rade JYJarlcs in person.
1953. May 7.
The Judgment of the Court was
delivered by
MAHAJAN J.-This is an appeal on a certificate
under section lO!J( c ), Civil Procedure Code, from the
judgment of the High Court of Judicature at Bombay
reversing the judgment of Mr. Justice S. C. Shah in
Civil Miscellaneous No. 2 of 1950 and restoring the
order of the Registrar of 'l'ra.de Marks refusing to
register the appellants' trade mark.
'l'he two questions that were canvassed before us
and that fall for our determination are (1) whether the
judgment of Mr. Justice Shah was subjeut to appeal
under clause 15 of the Lettern Patent of the Bombay
High Court and (2) whether Mr. Justice Shah was
right in interfering w[th the discretion exercised by
tho Registrar in refusing registration of the appellants'
mark.
·
'l'he relevant facts shortly stnted are these. 'l'he
appellants are a limited liability compnny incorporated under the Indian Companies Act, 1913, having
their registered office at Chidambaram, South Arcot
District, in the Province of Mndras and carrying
on the business of manufacturing cotton sewing
thread. 'l'he respondents are also a limited liability
company registered under tlw English Companies
Act. They have their registered office at Eagley Mills,
Bolton, (England) where they manufacture sewing
thread.
One of the trade marks used by them on
such thread consists of the device of an Eagle with
I
S.C.R.
SUPREME COURT REPORTS
1031
outspread wings known as "Eagle Mark".
This mark
1953
was first advertised in the Calcutta Exchange Gazette N
. -;-s .
of 5th ,June, 1896.
Since then sewing thread bearing T~;:::; 00.
''J:i~~g
this mark is being regularly imported into and sold in
v.
the Indian markets on an extensive scale.
Jamea Chadwick
· Ronncl about the year 1940 the appellants started and Bros. Ltd,
selling cotton sewing thread under a mark consisting
Mahajan J.
of the device of a bird with wings folly spread out
perched on a cylinder of cotton
sewing thread,
with the words " Eagle Brand " and the name of the
appellant company printed on the mark.
The respondents objected to the mark, upon which the
appellants substituted the words "Vulture Br1tnd" in
the place of the words " Eagle Brand". Thereafter in
the year 1942 the appellants applied to the Registrar
of Trade Marks, Bombay, for registration of their
amended mark as a trade mark, in class 23, in respect
of cotton sewing thread claiming that the mark
had been in use by them since the year 1939.
Though on the objection of the respondents the
appellants had named the Eagle in their mark a
"Vulture" in every other respect the mark remained
unchanged.
The
respondents
to
redress
their
grievance started a passing off action in the Dist.rid,
Court of South Arcot against the appellants. That
action failed on the ground that the evidence offered
on their behalf was meagre and they failed in proving
that there was any probability of purchasers exercising
ordinary caution being deceived in buying the
defendants' goods under the impression that they were
the plaintiff's goods. The result was that the grievance
of the respondents remained unredressed.
As above stated, in 1942, the appellants made an
application to the Registrar of Trade Marks at
Bombay for the registration of their mark "Vulture
Brand" under the Trade Marks Act, 1940.
The
respondents gave notice of their opposition to that
application under section 15(2), Rule 30, of the Trade
Marks Act, 1940.
By his order dated 2nd September,
1949, the Registrar of Trade Marks allowed the respondents' opposition and rejected the application
'
1032
SUPREME COURT REPORTS
[1953]
1953
made by the appellants. He came to the conclusion
National-Sewing that the appellants' mark so nearly resembled ~he
Thread 0 0 • LUI. mark of the respondents as to be likely to deceive
v.
or cause confusion.
He further
held that to
James Chadwick describe the mark of the appellants as " Vulture
and Bros. Ltd. Brand " when the device was that of an eagle
Mahajan J.
was misleading and liable to cause confusion. The
appellants preferred an appeal against the order of
the Registrar to the High Court of Bombay as permitted by the provisions of section 76 of the Trade Marks
Act. Mr. Justice Shah allowed the appeal, set aside the
order of the Registrar and directed the Registrar to
register the mark of the appellants as a trade mark.
From the judgment of Mr. Justice Shah an appeal was
preferred by the respondents under clause 15 of the
Letters Patent of the Bombay High Court. The appeal
was allowed and the order of the Registrar was restored with costs throughout. Hence this appeal.
In our judgment both the questions canvassed in
this appeal admit of an easy answer in sp:te of a number of hurdles and difficulties suggested during the
arguments. It is not disputed that the decision of
Mr. Justice Shah does constitute a judgment within
the meaning of clause 15 of the Letters Patent. That
being so his judgment was subject to a.ppeal under
that clause, the material part of which relevant to this
enquiry is :-
"And We do further ordain that an appeal shall
lie to the said High Court of Judicature at Bombay
from the judgment of one Judge of the said High
Court or one Judge of any Division Court, pursuant to
section 108 of the Government of India Act."
It was said thaithe provisions of this clause could not
be attracted to an appeal preferred to the High Court
under section 7() of the Trade Marks Act and further
that the clause would have no application in a case,
where the judgment could not be said to have been
delivered pursuant to section 108 of the Government
of India Act, 1915.
Both these objections in our
opinion are not well-founded.
Section 76 ( 1) provides;
,
S.O.R.
SUPREME COURT REPORTS
1033
"Save as otherwise expressly provided in the Act
1953
an appeal shal!'lie, within the period prescribed by the N
•
1
.
C t 1 G
t f
d . .
f th R .
atrnna Sewing
en ra
ove~nmen , rom any ec1s10n o
e
eg1sThread 00. Ltd.
trar under this Act or the rules made thereunder to
v.
the High Court having the jurisdiction."
Jame• Chadwick
The Trade Marks Act does not provide or lay down and Bros. Ltd.
any procedure for the future conduct or career of that
Mahajan J,
appeal in the High Court, indeed section 77 of the
Act provides that the High Court can if it likes make
rules in the matter. Obviously after the appeal had
reached the High Court it has to be determined
according to the rules of practice and procedure of
that Court and in accordance with the provisions of
the charter under which that Court is constituted
and which confers on it power in respect to the
method and
manner of exercising that jurisdiction. The rule is well settled that when a statute
directs that an appeal shall lie to a Court already
established, then that appeal must be regulated by the
practice and procedure of that Court. This rule was
very succinctly stated by Viscount Haldane L.C. in
National Telephone Go., Ltd. v. Postmaster-General (1),
in these terms :-
"When a question is stated to be referred to an
established Court without more, it, in my opinion, imports that the ordinary incidents of the procedure of
that Court are to attach, and also t.hat any general
right of appeal from its decision likewise attaches."
The same view was expressed by their Lordships of
the Privy Council in R.M.A.R.A. Adaikappa Chettiar
v. Ra. Chandrasekhara Thevar ('), wherein it was
said:-
"Vi'here a legal right is in dispute and the ordinary
Courts of the country are seized of such dispute
the Courts are governed by the ordinary rules of procedure applicable thereto and an appeal lies if authorised by such rules, notwithstanding that the legal
right claimed arises under a special statute which does
not, in terms confer a right of appeal."
(1) (1913] A.C. 546.
(z) (1947) 74 I,A. 264,
J.J4
'
1034
SUPREME COURT REPORTS
[1953]
1953
Again in Secretary of State for India. v. Chellikani
N t . -,-s . Rama Rao ('), when dealing with the case under the
n iona
ewing Madr
F
A
h . J
d h'
J
d
Tlmad co. Ltd.
· as
orest
ct t elf
,or s tps o iserve
as
v.
follows:-
James Chadwick
"It was contended on behalf of the appellant that
all further proceedings in Courts in India or by way of
appeal were incompetent, these being excluded by the
terms of the statute just quoted. In their Lordships'
and Bros. Ltd.
1\.fahajan .J.
opinion this objection is not well-founded. Their view
is that when proceedings of this character reach the
District Court, that Court is appealed to as one of the
ordinary Courts of the country, with regard to whose
procedure, orders, and decrees the ordinary rules of the
Civil Procedure Code apply."
Though the facts of the cases laying down the above
rule were not exactly similar to the facts of the present
case, the principle enunciated therein is one of general
application and has an apposite application to the
facts and circumstances of the present case. Section 76
of the Trade Marks Act confers a right of appeal to the
High Court and says nothing more about it. That
being so, the High Court being seized as such of the
appellate jurisdiction conferred by section 76 it has to
exercise that jurisdiction in the same manner as it
exercises its other appellate jurisdiction and when such
jurisdiction is exercised by a single Judge, his iudgment becomes subject to appeal under clause 15 of the
Letters Patent there being nothing to the contrary in
the Trade Marks Act.
The objection that Mr. Justice Shah's judgment
having been delivered on an appeal under section 76
of the Trade Marks Act could not be said to have been
delivered pursuant to section 108 of the Government of
India Act is also without force and seems to have been
based on a very narrow and limited construction of
that section and on an erroneous view of its true intent
and purpose. Section 108 of the Government of India
Act, 1915, provides :-
" Each High Court may by it~ own rules provide as
it thinks fit for the exercise, by one or more ~fudges, or
by division courts constituted by two or more Judges
\1) (1916) l.L.R. 39 Mad. 617.
,
S.C.R.
SUPREME COURT REPORTS
1035
of the High Court, of the original and appellate juris1953
diction vested in the Court."
,
.
,
National Sewing
'Ihe scct10n is an enablmg enactment and confers Thread oa. Ltd.
power on the High Courts of making rules for the
v.
exercise of their jurisdiction by single Judges or byJames Chadwick
division courts. The power conferred by the secand Bros. Ltd.
tion is not circumscribed in any manner whatever
Maha.fan J.
and the nature of the power is such that it had
to be conferred by the use of words of the widest
amplitude. There could be no particular purpose or
object while conferring the power in limiting it qua
the jurisdiction already possessed by the High Court,
when in the other provisions of the Government of
India Act it was contemplated that the existing jurisdiction was subject to the legislative power of the
Governor-General and the jurisdiction conferred on
the High Court was liable to be enlarged, modified and
curtailed by the Legislature from time to time.
It is thus difficult to accept the argument that
the power vested in the High Court under subsection ( 1) of section 108 was a limited one, and
could only be exercised in respect to such jurisdiction as the High Court possessed on the date
when the Act of 1915 came into force.
The words
of the sub-section "vested in the court" cannot
be read as meaning "now vested in the court". It is
a well-known rule of construction that when a power
is conferred by a statute that power may be exercised
from time to time when occasion arises unless a contrary intention appears. This rule has been given
statutory recognition in section 32 of the Interpretation Act.
The purpose of the reference to section
108 in clause 15 of the Letters Patent was to incorporate that power in the charter of the Court itself,
and not to make it moribund at that stage and make
it rigid and inflexible. We are therefore of the opinion
that section 108 of the Government of India Act, 1915,
conferred power on the High Court which tlmt Court
could exercise from time to time with reference to its
jurisdiction whether existing at the coming into force
of the Government of India Act, 1915, or whether conferred on it by any subsequent legislation.
'
l036
SUPREME COURT REPORTS
[1953]
1953
It was argued that simultaneously with the repeal
~. . -l
8
. of section 108 of the Government of India Act, 1915,
"' ationa
ewing
d
f th
t f "t
. .
.
t'
223
Thread co. Ltd. an
o
e enactmen o I s prov1s10ns m sec 10n
v.
of the Government of India Act of 1935 and later on
James Chadwick in article 225 of the Constitution of India, there had
and Bros. Ltd.
Mahajan J.
not been any corresponding amendment of clause 15
of the Letters Patent and the reference to section 108
in clause 15 of the Letters Patent could not therefore
be taken as relating to these provisions, and, that
being so, the High Court had no power to make rules
in 1940 when the 'I'rade Marks Act was enacted under
the repealed section and the decision of Mr. Justice
Shah therefore could not be said to have been given
pursuant to section 108. This objection also in our
opinion is not well-founded as it overlooks the fact
that the power that was conferred on the High Court
by section 108 still subsists, and it has not been
affected in any manner whatever either by the Government of India Act, 1935, or by the new Constitution.
On the other hand it has been kept alive and
reaffirmed with great vigour by these statutes.
The High Courts
~till enjoy the same unfettered
power as they enjoyed under section 108 of the
Government of India Act, 1915, of making rnles and
providing whether an appeal has tu be heard by one
Judge or more Judges or by Division Courts consisting
of two or more Judges of the High Court. It is immaterial by what label or nomenclature that power
is described in the different statutes or in the Letters
Patent. The power is there and continues to be there
and can be exercised in the same manner as it could be
exercised when it was originally conferred. As a matter
of history the power was not conferred for the first
time by section 108 of the Government of India Act,
1915. It had already been conferred by section 13 of
the Indian High Courts Act of 1861. We are further of
the opinion that the High Court was right in the view
that reference in clause 15 to section 108 should be
read as a reference to the corresponding provisions of
the 1935 Act and the Constitution. The canon of construction of statutes enunciated in section 38 of the
'
I
.
S.C.R.
SUPREME COURT REPORTS
1037
Interpretation ·Act and reiterated with some modifica1963
tions in section 8 of the General Clauses Act is one of
general application where statutes or Acts have to be N;,~ion~ 0
8"~ng
construed and there is no reasonable ground for holdrea v.
0
•
td.
ing that that rule of construction should not be applied James Chadwick
in construing the charters of the different High Courts. and Bros. Ltd.
These charters were granted under statutory powers
and are subject to the legislative power of the Indian
Mahajan J.
LPgislature. Assuming however, but not conceding,
that strictly speaking the provisions of the Interpretation Act and the General Clauses Act do not for any
reason apply, we see no justification for holding that
the principles of construction enunciated in those provisions have no application for
construing these
charters. For the reasons given above we hold that
the High Court was perfectly justified in overruling
the preliminary objection and in holding that an
appeal was competent
from
the
judgment of
Mr. Justice Shah under clause 15 of the Letters
Patent.
Reliance was placed by the appellants in tho High
Court and before us on the decision of the High Court
of Judicature of Calcutta in Indian Electric Works v.
Registra.r of Trade 2ll arks( 1) wherein a contrary view
was expressed.
After a full consideration of the very elaborate
and exhaustive judgment delivered in that case
by both the learned Judges of the Bench that heard
the appeal and with great respect we think that
that case was wrongly decided and the decision is
based on too narrow ancl restricted a construction of
section 108 of tho Government of India Act, 1915, and
that in that decision full effect has not been given to
the true intent and purpose of clause 44 of the Letters
Patent.
Both tho learned Judges there took the view that
the authority given by. section 108(1) of the 1915
statute to make rules for the exorcise by one or more
Judges of the Court's appellate jurisdiction was limited
to the jurisdiction then vested in the Court by section
(1) A.LR. 1947 Cal. 49·
'
1038
SUPREME COURT REPORTS
[l953J
1953
106 (1) of the Act and by clause 16 of the Letters
N
. - 1- 8·
. Patent. It was held that such rules thus could not
ationa
ewing
1
. . ·1· t'
f'
d b
A
l
f
TMead co. Ltd: re ate to Jlmsc lC 10n con erre
y an ct passec a ter
v.
the commencement of the 1915 statute nor to an apJaines Chadwick peal heard by the Court pursuant to such an Act, since
and Bros. Ltd. the jurisdiction to hear such appeal having been conferred by the particular Act could not be said to have
Mahaja1~ J.
been conferred upon, or vested in, the Court by section
106(1) and by clause lG of the Letters Patent. This argument suffers from a two-fold defect.
In the first place
it does not take into consideration the other provisions
of the Government of India Act, 1915, particularly the
provision contained in sections 65 and 72.
By section
65(1) of the Government of India Act, 1915, the Governor-General in Legislative Council was given power to
make laws for all persons, for all courts, and for all
places and things, within British India.
By section
72 he was also given power for promulgating ordinances
in cases of emergency. By the Charter Act of 1915
therefore the High Court possessed all the jurisdiction
that it had at the commencement of the Act and could
also exercise all such jurisdiction that would be conferred upon it from time to time by the Legislative
power conferred by that Act. Reference to the provisions of section !) of the Indian High Courts Act of
1861 which section 106 (1) of the Government of Inditi
Act, 1915, replaced makes this proposition quite clear.
In express terms section 9 made the jurisdiction of tlie
High Courts subject to the legislative powers of the
Governor-General in Legislative Council. Section lOG
only conferred on the High Court " jurisdiction and
power to make rules for regulating the practice of the
court, as were vested in them by Letters Patent, and
subject to the provisions of any such Letters Patent, all
such jurisdiction, powers and authority as were vested
in those comts at the commencement of the Act. "
The words "subject to the legislative powers of the
Governor-General" used in section 9 of the Charter Act
of 1861 were omitted from the section, because of the
wide power conferred on the Governor-General by section 65 of the Government of India Act, 1915. The
'
S.C.R.
SUPREME COURT REPORTS
1039
jurisdiction couferred on the High Courts from the very
1993
inception was all the time liable to and subject to N t. -l-" 'ng
.
,
,
,
,
a iona
oewi
alterat10n by appropnate leg1slat10n. It 1s therefore Thread co. Ltd.
not right to say that section 108 (1) of the Governv.
ment of India Act, 1915, empowered the High Courts to James Chadwick
make rules only concerning the jurisdiction that those and Rroa. Ltd.
courts exercised when that Act was passed ; on the
Mahajan J.
other hand power was also conferred on them to make
rules in respect of all jurisdiction then enjoyed or with
which they may be vested hereafter.
Clause 16 of the Letters Patent on which reliance was
placed by the learned Judges of the Calcutta Court is
in these terms :-
" The High Court shall be a Court of appeal from the
civil Courts of Bengal and from all other Courts subject
to its superintendence and shall exercise appellate
jurisdiction in such cases as are subject to appeal to the
said High Court by virtue of any laws or regulations
now in force."
This clause is also subject to the legislative power
of the appropriate Legislature as provided in clause 44
of the Letters Patent. This clause is in these terms:
"The provisions of the Letters Patent are subject to
the legislative powers of the Governor-General in
Legislative Council."
That being so the last words of the clause "now
in force " on which emphasis was placed in the
Calcutta judgment lose all their importance, and
do not materially affect the point. The true intent
and purpose of clause 44 of the Letters Patent
was to supplement the provisions of clause 16 and
other clauses of the Letters Patent. By force of this
clause appellate jurisdiction conferred by fresh legislation on the High Courts stands included within the
appellate jurisdiction of the court conferred by the
Letters Patent. A reference to clause 1.5 of the Letters
Patent of 1861, which clause 16 replaced, fully supports this view. This clause included a provision to
the following effect :-
" or shall become subject to appeal to the said
High Court by virtue of such laws and regulations
'
1040
SUPREME COURT REPORTS
[1953]
1953
relating to Civil Procedure as shall be hereafter made
N .
1 8
· by the Governor in Council,"
·
J.: attona
ewing
Thread c •. Ltd. in addition to the words" laws or regulations now in
v.
force".
The words above cited were omitted from
J:':i'8,~~-"1~:~k clause 16 of the late~ charter,~nd only th? worrls "laws
or regulations now m force
were rctamcd, because
Mahajan J.
these words were incorporated in the Letters Patent and
were made of general application as governing all the
provisions thereof by a separate clause.
The Judges
who gave the Calcutta decision on the other hand inferred from this change that the appellate jurisdiction
of the High Court as specified in clause 16 was confined only to the jurisdiction to hear appeals from the
the civil Courts mentioned in that clause and appeals
under Acts passed and regulations in force up to the
year 1865. In our opinion the learned Judges were
in error in thinking that the appellate jurisdiction
possessed by the High Court under the Letters Patent
of 1865 was narrower than the jurisdiction it possessed
under clause 15 of the Letters Patent of 1861. Whatever jurisdiction had been conferred on the High Court
bv clause 15 of the Letters Patent of 1861 was incorporated in the Letters Patent of 1865 (as amended)
and in the same measure and to the same extent by
the provisions of clauses 16 and 44 of that charter.
vVe are further of the opinion that the Calcutta decision is also erroneous when it expresses the view that
the range and ambit of the power conferred on the High
Court by section 108 of the Government of India Act
of 1915 was limited by the provision of section 106 (1)
of the Act or by the provisions of clause 16 of the
Letters Patent. There is no justification for placing
such a construction on the plain and unambiguous
words of that section. Section 108 is an enactment by
itself and is unrestricted in its scope, and covers a
much wider field than is covered by section 106 of the
Government of India Act. The only association it has
with section 106 is that in sequence it follows that section. It confers a power on the High Court to make
rules in respect not only of the jurisdiction that it
I
s.c.R.
SUPREME COURT REPORTS
1041
enjoyed in 1915 but it also conferred power on it to
1953
make rules in respect of jurisdiction which may here- N
. -
.
f
b
"
d
. b
ational Sewing
a ter e con1erre on it y the enactments enacted by Thread 00. Ltd:
the Governor-General in Legislative Council.
v.
On the line of thought adopted in the Calcutta deci-James Chadwick
sion the learned Judges were forced to the conclusion and Bros. Ltd.
which seems somewhat strange that the jurisdiction
Maha.janJ.
conferred by the Letters Patent on the Calcutta High
Court is much more limited and restricted than has
been conferred on some of the new High Courts in India
by their Letters Patent. Illustratively, Clause 11 of
the Letters Patent of Patna High Court issued in
1916 provides as follows:-
"And We do further ordain that the High Court of
Judicature at Patna shall be a Court of Appeal from
· the Civil Courts of the Province of Bihar and Orissa
and from all other Courts subject to its superintendence, and shall exercise appellate jurisdiction in such
cases as were, immediately before the date of the publication of these presents, subject to appeal to the High
Court of Judicature at Fort \Villiam in Bengal by
virtue of any law then in force, or as may after that date
be declared subject to appeal to the High Court of Judicutiire at Patna by any law made by competent legislative
authority for India ".
The Letters Patent of the Lahore High Court, the
High Court of Rangoon and the Letters Patent of th@
Nagpur High Court also contain identical clauses. It
is clear from these clauses that in respect of cases subject to appeal to these High Courts the civil appellate
jurisdiction is flexible and elastic. Mr. Justice Das in
the Calcutta decision under discussion took the view
that omission of the words underlined in clause 11
from
clause 16
of the Letters Patent of the
Calcutta High
Court
made the civil
appellate
jurisdiction
of that court under clause 16 as
rigidly fixed, and that it could be exercised only over
courts and only in respect of cases mentioned therein.
When the attention of the learned Judge was drawn
to the provisions of clause 44 of the Letters Patent he
135
'
1042
SUPREME COURT REPORTS
[1953]
1963
was constrained to say that inflexibility had to a
N 1• -;:s . great extent been modified by preserving the powers
;h~= 0/~;;a of Indian Legislative authority in section 9 of the
v.
High Courts Act, by the amended clause 44 of the
James Oha:lwick Letters Patent and by section 223 of the 1935 Act.
and Bro ... Ltd. The learned Judge however felt that there was still a
difference of a vital character between the Letters
MahajanJ. Patent of the Calcutta High Court and of the newly
constituted High Courts inasmuch as cases subsequently declared by any Indian enactment to be subject
to appeal to the Calcutta High Court could not strict.
ly speaking come within its appellate jurisdiction
under clause 16 although the High Court exercised
appellate jurisdiction over these.
VvT e have not been
able to appreciate this distinction and it seems to us
it is based on some misapprehension as to the true
intendment of clause 44 of the Letters Patent. The
purpose and intent of clause 44 of the Letters Patent
was to declare that in addition to the jurisdiction
eonferred by clause 16 it would also exercise the
appellate jurisdiction which from time to time would
be conferred on it. by subsequent enactments. It is
inconceivable that larger appellate jurisdiction and
greater powers in the matter of making rules would
have been conferred upon the newly constituted High
Courts than upon the High Court of Calcutta. The
words "pursuant to section 108 of the Government of
India Act 1915" occurring in clause 15 of the Letters
Patent do not in any way restrict the scope of the
right of appeal conferred by that clause to appeals
that come to the High Court under its appellate jurisdiction under clause 16 of the Letters Patent only.
On the other hand we think that these rules have
application to all appellate jurisdiction exercised by
that court whether existing or conferred upon it by
subsequent legislation.
The learned Judges in the Calcutta case negatived
the applicability of the principle enunciated in 1913
Appeal Cases 546 and applied by the Privy Council
in several cases to the matter before them, on the
following reasoning set out by Mr. Justice Das : -
'
•
S.C.R.
SUPREME COURT REPQR,TS
1043
"The incidents and powers attached to the Registrar
1963
as a tribunal fall far short of those which were attached ,. . -l
"
.
h
'b
1 .
h G d
(1)
d
1 . h ""t"'na uewing
to t e tn una !Il t e ·ur wara case
an to w uc
Thread co. Ltd.
Sir George Rankin particularly and pointedly referred.
v.
Having regard to the plain language of clm18e 16, and Jumea Ohmlwick
in the absence therein of like words which appear and Bros. Ltd.
in the concluding portions of the corresponding
Mahaja-n J.
clauses of the Letters Patent of the other High Courts,
to which I have already referred and which make
their appellate jurisdiction flexible and elastic it is
impossible to hold that section 76 of the Trade
Marks Act has merely extended the appellate jurisdiction of this Court under clause lG by the addition of
a new subject-matter of appeal so as to attract the
general principle enunciated in 1913 Appeal Cases 546
......... The truth is that the Trade Marks Act has
created new rights, e.g., a right to get a trade mark
registered and has given certain new advantages consequent upon such registration. It has created new
Tribunals for its own purposes and it has conferred lt
new appellate jurisdiction on this Court. It has
authorised this Court to make rules regulating the
conduct and procedure of the proceedings under the
Act before it. This Court has framed separate set of
rules accordingly. This very fact makes it impossible
to attract the ordinary rules of procedure regarding
appeals in this Court and indicates that an appeal
under section 76 of the Act involves the exercise of
a new appellate jurisdiction regulated by new rules".
This reasoning in our opinion is faulty on a number
of grounds.
The first error lies in the assumption
that the Gmdwara Act did not create new rights and
did not create new appellate jurisdiction in the High
Court which it did not possess before. The Uurdwara
Act created peculiar rights in religious bodies and
negatived the civil rights of large bodies of JVIahants
.and other persons. Such rights were unknown before
in civil law. The High Court as an established court
of record was constituted a court of appeal from the
decisions of the Gurdwara Tribunal. The principle
enunciated in 1913 Appeal Cases 546 was applied by
(I) 63 I.A. 180.
•
1044
SUPREME COURT REPORTS
[1953]
1953
Sir George Rankin to appeals heard by the High Court
. . --
. under its newly created appellate juristliction, and we
l'iatwnal Sewing
k
"th
t ·
· ·
t
Th ad 0
Ltd spea
w1
great respec , m our opm10n, very correc -
re
v.
0
·
· ly. We have not been able to appreciate the special
James Chadwick peculiarities of the rights created by the Trade Marks
and Bros. Ltd. Act which place the appellate jurisdiction conferred
on the High Court by section 76 on a ddferent level
Mahajan J. from the jurisdiction created by the special provisions of the Gurdwara Act.· The rights created by the
Trade Marks Act are civil rights for the protection of
persons carrying on trade under marks which have
acquired reputation.
The statute
creates
the
Registrar a tribunal for safeguarding these rights and
for giving effoct to the rights created by the Act, and
the High Court as such without more hP~s been given
appellate juriodiction over the decisions of this tribunal. It is not easy to understand on wha.t grounds it
can be said that the High Court while exercising this
appellate jurisdiction has to exercise it in a manner
different from its other appellate jurisdiction. It
seems to us that this is merely an addition of a new
subject matter of appeal to the appellate jurisdiction
already exercised by the High Court.
The second error lies in the assumption that the
appellate jurisdiction exercised by the High Court of
Calcutta is much more limited than that possessed by
the other High Courts. The matter has been discussed at length in an earlier part of this judgment.
We have also not been able to appreciate the
emphasis laid to negative the applicability of clause 15
of the Letters Patent by reference to the provisions of
section 77 of the Act.
The provisions of that section are merely enabling provisions and, as already
pointed out, it is open to the High Court to make use
of them or not as it likes.
There is nothing in the
provisions of that section which debars the High
Court from hearing appeals under section 76 of ths
Trade Marks Act according to the rules under which
all other appeals are heard, or from framing rules for
the exercise of that jurisdiction under section 108 of
the Government of India Act, 1915, for hearing those
,
•
s.c.R.
SUPREME COURT REPORTS
1045
appeals by single judges or by division benches.
1953
Even if section 77 had not been enacted it could not
---
b
'd th
h
·H· h C
t
Id h
h
National Sewing
e . sat
at t e
1g
our wou
t en
ave no Threa.d Oo. Ltd.
power to make rules for the hearmg of appeals under
v.
section 76. There are a number of legislative enactments Jamea Chadwick
which have conferred appellate jurisdiction on the and Bros. Ltd.
High Court without more and the High Court exercises
appellate jurisdiction conferred by these enactments
Mahajan J.
by framing its own rules under the ·powers it already
possesses under its different charters and under the
various statutes which have conferred power on it.
It was suggested that the reasoning of the High
Court is supported by the rule laid down in Secretary
of State v. Jt!ask and Co.(1). In our opinion that rule has
neither any relevancy in this case nor is it in any
manner in conflict with the rule laid down in 1913
Appeal Uases 546 or in the later Privy Council decisions above referred to. There, by section 188 of the
Sea Customs Act the jurisdiction of the civil courts
was excluded, and an order made by the Collector on
an appeal from an order of the Assistant Collector
was made final.
A suit was filed to challenge the
order of the Collector on the ground that the fimility
declared by section 188 was no bar to such a suit in
a civil court. That contention was negatived on the
ground that when a liability not existing in common
law is created by a stajj!tte which at the same time
gives a special and particular remedy for enforcing it,
with respect to that class it has always been held that
the party must adopt the form of remedy given by
the statute. The Trade Marks Act has not created
any special forum for the hearing of an appeal as had
been ereated by the Sea Customs Act. On the other
hand, the Trade Marks Act has conferred appellate
I
jurisdiction on an established court of law.