Shiva Jute Baling Ltd. v. Hindley & Co. Ltd.

Judgment

2 s.c.R. of nationalisation of text books. The learned counsel appearing in these cases have adopted in their entirety Rai Sahib Ram the arguments that have been advanced by Mr. Pathak Jaw4ya Kapur amt others in Petition No. 652 of 1954 and no fresh or additional argument has been put forward by any one of them. The SfrJJe of Punjab This beiqg the position the decision in Petition M11k;;;;;;a c..1. No 652 of 1954 will govern these petitions also and they will stand dismissed but we would make no order as to costs. SHIVA JUTE BALING LTD. HINDLEY & CO. LTD. [BIJAN KUMAR MuKHERJEA C.J. and SUDHI RANJAN DAS J.].

Appeal by Special Leave under Article 136 of the Constitution- Procedure to be followed on grant of such leave-Supreme Court Rules, rules 8, 9, 12 and 13 of Order Xlll--Circumstances warranting action against an Appellant for rescinding special leave--Civil Procedure Code, Order XLV, rule 8-"Admission" of appeal to Supreme Cow·t-Applicability to appeals under article 136 of Constitution-Extent of Rule 9, Order XIII, of Supreme Court Rules- Rules and Practice of High Collrts-Formal motion in High Court for "admission" of appeal when special le1we was granted under article 136-Whether necessary--Calcutta High Court (Original Side) Rules, rule 9 of Chapter 32-Scope of. By an order dated May 25, 1~54, the Supreme Court granted the petitioners in the case special leave to appeal against the judgment and order of the High Court at Caleutta. In accordance wi:h the order, the pt'titioners furnished the security amounts directed to be deposited within the time specified in the order.

The Registrar of the High Court did not iSS\le. any notice of admission of appeal to be served by the Appellant's Solicitor on the Respondents as envisaged in rule 9 of Order. XIII, S.C.R. Nor did the Appellant following the practice of the High Court, move that C.ourt for "admission" of the appeal until January U, 1955. The Respondents first mo\·ed the High Co4rt complail).ing of d~ault on the part of the appellants in due prosecution of the appeal and latter moved the Supreme Court for action under rule 13 df Order XIII of the Supreme Court Rules. The application in the High Court was therefore kept pending. Held: Af~er the grant of $pecial leave under article 136, the Registrar of the Supreme Court transmits, in accordance with the Shiva Jafe Baling [Jti. Hindle)' 11nd Co.UJ. [ 1955] provisions of rule 8 of Order Xlll of the Supreme CQurt Rules, a certified copy of the Supreme O>un's· order to the Court or tribunal appealed from.

Rule 9 of Order XIIl of the Supreme Court Rules enjoins upon rhe Court or tribunal appealed from to act, in the absence of any special directions in the order, iu accordance with the provisions contained in Order XL V of the Civil Proa:dure Code, so far as 'they are applicable. Accordingly the Coun or Tribunal to which the order is transmitted receives deposits on account•of security for the Respondents' costs, printing costs, and any other deposits if so ordered hy the Supreme Coun, and sets about preparing the record of the appeal for transmission to the Supreme Court.

Therefore, action under rule 13 of Order XIlI, S.C.R. for rescinding the order granting special leave cannot be initiated unless the Court or tribunal appealed from reports to the Supreme Court that the appellant has not been diligent in taking steps to enable that Court to carry out the directions, if any, contained in the order of the Supreme Court and to act in.accordance with the.provisions of Order XLV of the Civil Procedure Code so far. as applicable to appeals under Article 136 of the Constitution. In view of rule 9 of Order XIIl of the Suercme Court Rules, the o.pplication of Order XLV of the Code of Civil Procedure to appeals under Article 136 of the Constitution is restricted. The.

Court or tribunal appealed from, no doubt, bas to carry out the directions contained in the order granting special leave, . and to receive the security for the Respondents' costs and other necessary deposits, bui once the security is furnished and the other deposits are made, the formality of "admission" envisaged by rule 8 of Order XLV of the Civil Procedure Code is nnnecessary, because in such cases the order granting special leave by itself operates as an admission of the appeal as soon as the conditions in the order relating to the furnishing of security or malcing of deposits are complied with. Appeals under Article 136 thus stand on a different foonng from appeals ·on grant of certificate by the High Court itself. In the latter case, the Hi~h Court has exclusive jurisdiction over the matter until it admits the appeal under rule 8 of Order XLV of the Civil Procedure Code.

Ruic 9 of ihe Chapter 32 of the Original Side Rules of the Calcutta High Court envisages "admission" of appeals to the Supreme Court whether by an older of the Supreme Court or under Order XL V of the Civil Procedure Code. And when an appeal arising from an order made by the Supreme c.oart under Article 136 of the Constitution, has been. so "admitted", the said rule enjoins upon the Rcgisttar to issue notice 11f such admission for service by the appel- !ant on the Respondents. In cases where special leave has been granted by the Supreme Coun, it is not necessary for the appellant to move the High Court appealed fiom for the formal admission of his appeal.

As the order granting special leave itself lays down the conditions to be fulfilled by the appellants, the admission will be regarded as final only when the directions are complied with and n, ·2 S.C.R. soon as this is Jone it would be the duty of the Registrar to issue a notice of rhe admission of the appeal for service upon the respondents. In default of the issue of such notice, the appellant cannot be hdu responsible for !aches in the prosecution of his appeal with regat·u to the steps required to be taken after the admission of his ~ppeal. CIVIL APPELLATF JURISDICTION: In the matter of !Petition for Special Leave to Appeal No. 230 of 1953. Rajinder Narain for the Respondents. N. C. Chatterjee (Sukumar Ghose with him) for the Appellants. 1955. April 5. The Order of the Court was delivered by MUKHERJEA C. J.-This is an application by the respondents in Special Leave Petition No. 230 of 1953, praying for . summons to the appellants to show cau~e why the special leave obtained by the latte1 should not be rescinded in accordance with the provision of Order XTTJ, rule 13 of the Supreme Court Rules.

The appeal is directed against a judgment of a Division Bench of the Calcutta High C::ourt affirming, on appeal, a decision of a single Judge sitting on the Original Side of that Court. The appellants, having been refused certificate by the High Court, presented before us an application under article 136 of the Ccmstitution and special leave to appeal was granted to them by an order of this Court dated the 25th Mav 1954. By that order the appellants were required to furnish security for costs amounting to Rs. 2,500 within six weeks and the enforcement of the award. which was the subject-matter of the appeal, was stayed on condition that the appellants deposited in Court a sum of Rs. 28,000 within f.our weeks from the date of the order.

On the 15th of June 1954 the Registrar of this Court transmitted to the OriJ?inal Side of the Calcutta High Court certified copies of the order granting soecial leave and also of the ~pecial leave netition with a request that these documents miglit he included in the orinted records of the case. It is nol disnutcrl that in -pursuance of the directions riven J~-.'.l srr 1ND'g2 ]95> Shiva Jute BoUnK:Ltd. Hindley and Co. Ltd. 195:J Shiva Jute Bali11g Ltd, Hi11dt,z: mid Co. td. Mukherjta C. J. [I 955] by this Court the appellants did deposit the amount required as security for costs and also the sum of Rs. ;28,000 within the time mentioned in the order. On the 29th November I 954 the respondents' Solicitors in Calcutta wrote a letter to the Registrar of the Original Side of the Calcutta High Court complaining of delay on the part of the appellants in prosecuting the appeal.

It was stated inter alia that although ,six months had elapsed since special leave was granted by this Court, the respondents were not served with notice of the admission of the appeal and no steps were taken by the appellants to get the records printed or transmitted to this Court. In reply to this letter the Registrar informed the respondents' Solicitors that according to the practice of the Calcutta High Court it was incumbent on the appellants to make a formal application to the Appellate Bench of the Court for declaring the appeal finally admitted, and this was to be done on notice to the other parties under Order XL V, rule 8 of the Civil Procedure Code and on filing in Court a copy of the order of the Supreme Court granting special leave to appeal as well as the application upon which such order was made. Unless and until an order was made by the High Court declaring the appeal to be admitted. no action could be taken by the office in the matter.

Thereupon on the I Ith of January I 955 an application was filed by the appellants praying that leave might be given to them to file the certified copy of the special leave petition and also that of the order passed upon it and that the appeal might be finally admitted. This application came up for hearing bef0re the learned Chief Justice and Lahiri, J. of the Calcutta High Court and on the 20th of January 1955 the learned Judges made the following order: "In this matter special _leave to appeal to the Supreme Court was )l:ranted by that Court on the 25th May 1954. On the 21st June following, the Appellant furnished the necessary security. It was then the dutv of the Appellant to take the nece3sary steos for the final admission of the aooeal in order that the nrcparation of the Paper Book might thereafter be undertaken.

Under the Rules and practice of this Cou!'t the step to be taken is that the Appellant to the Supreme Court should make an application for leave to file the certified copy of the petition for Special Leave and also a certified copy of the order granting Special Leave which have been filed along with the present application .................... . When the matter came up for hearing on the last occasion we enquired whether the Appellants had any explanation to give for the delay which had occurred. It was said that the certified copy of the application for Special Leave had been obtained only recently. It was however not explained why when an application for a certified copy of the order was made a similar application for a certified copy of the petition also could not be made.

In all the circumstances we consider it right that the disposal of the present application should stand over for a month in ord.er that the respondents may take such steps as they desire to take before the Supreme Court". The above facts and order of the High Court were communicated to the Registrar of this Court by Shri Rajinder Narain, Advocate for the respondents, by his letters dated the 17th and 31st of January 1955 and on the basis of the facts stated above, he requested that action should be initiated by the Registrar against the appellants for non-prosecution of the appeal. The Registrar told the learned Advocate that he had not received any report from the High Court regarding any ]aches on the part of the appellants and without any such report, it was not possible for him to take any action in the matter. The Advocate himself, it was said, was quite at liberty to make a formal application to the Court in such way as he considered proper.

The views thus expressed by the Registrar of this Court were communicated by him to the Registrar of the High Court, Originai Side, Calcutta. On the 4th March 1955 Shri Rajinder Narain filed a formal petition addressed to the Registr:;r allc~!ing inordinate delay on the part of the appclLrnts in filing in the High Court certified copies of Shiva Jllle Bal;,,, Lid. Hindky u11d Co. l.td. Nukherjea C. J. Shi-va Jute lln/i#J! Ltd. Hindley aud Co. Ltd. Muk!terjea C.J; Ll 955 lbc Special Leave petition and the order made by this <'iwrt thereupon and praying that summons might be issued to the appellants to show cause why the appeal should not be dismissed for non-prosecution. Before the Registrar could take any further steps in the matter, the application of the appellants for final admission of the appeal made in the High Court came up for further consideration before the Appellate Bench consisting of the Chief Justice and Mr. Justice Lahiri and on the 7th March, l 955 the learned Judges made an order directing, for the reasons given therein, adjournment of the application for admission of the :appeal before them, sine die pending orders which this Court might pass on the application of the respondents.

The application of the respondents which purports to have been made under Order XTIJ. rule 13 of the Supreme Court Rules was referred by the Registrar for orders to the Court and it has now come up for hearing before us. Shri Rajinder Narain appearing in support of the petition has contcndcd before us that the appellants wert; guilty of serious ]aches inas111ud1 as they did nol file in' the High Court, till 8 months after the special leave was granted, 1.:opics of the special leave petition as well as of the order passed Ul'Oll it; nor did they make an application to the Appellate flcnch for admission of the appeal without which no further step& could be taken in the matter of printing and transmission of the record. As the appellants could not give any satisfactory explanation for this inordinate delay on their part, the special leave, it is arguecl, should be rescinded. Mr. Chatterjee, who appeared for the appellants, has contended on the other hand that in a case like the one before us where the appeal has come up to this Court by special leave and not by a certificate granted by the High Court. there was no duty cast upon the appellants to make a formal application in the High Court for final admission of the appeal or to file therein certified copies of the special leave petition and the o.-der made thereupon.

His argument is that under Order XXXH. n•le 9 of the Ori.l!inal Side Rules of the (\1k11tt;1 lligh Court. ;1 Supreme Court appeal must be deemed to have been admitted by the very order of this Court granting Shiva Jute special leave and as soon ~s the appellants have car- Dalii~ Ltd. ried out the directions of the Supreme Court regarding Hindley and furnishing of security or making of other deposits as co. Ltd. the case may be, it is incumbent upon the Registrar lluklleriea c. 1. to issue a notice of the admission of the appeal for service upon the respondents. Such notice indeed has got to be served by the appellants' attorney; but as no notice was at all issued by the Registrar in the present case as is contemplated by rule 9 of Order XXXII of the Original Side Rules of the Calcutta High Court, no blame could attach to the appellants for not taking further steps in the matter. The contention of Mr. Chatterjee appears to u,s to be wellfounded and as it seems to us that doubts have arisen at times regarding the precise procedure to be followed in cases where an appeal comes to this Court by special leave granted under article 136 of' the Constitution, it is necessary to examine the provisions bearing upon it as arc contained in the Rules of the Supreme Court or of the High Court concerned read along with the relevant provisions of the Ci"Vlil Pro- :cedurc Code.

Ordinarily when a High Court grants a certificate giving leave to a party to appeal to this Court, it is that Court which retains full control and juris<liction over the subsequent proceedings relating to the prosecution of the appeal till the appeal is finally admitted. It is for the High Court to see that its directions are carried out regarding the furnishing of security <1>r the making of deposit and when these conditions are ful- ·filled, it has then to declare the appeal finally admitted undet Order XLV, rule !S of the Civil Procedure Code. The jurisdiction of the Supreme Court begins after the appeal is finally admitted. When however the appeal comes to this Court on the strength of a special leave granted by it, the position is different. In such cases the order of the Supreme Court granting special leave by itself operates as an admission of the appeal as soon as the conditions in the ord~r relating to fur- Shi11t1 Jute Buliug Ltd. Hindley and co. ltd. l\fukllcrjca C. J.~• [1955) nishing of security or making of a deposit arc complied with.

T'hat this is the true position will be clear from the procedurg1l provisions contained in the Rules of the Supreme Court as well as of the Original Side of the Calcutta High Court. Order XIII, rule 8 of the Supreme Court Rules lays down: "After the grant of special leave to appeal by the Court, the Registrar shall transmit a certified copy of the order to the court or tribunal appeaied from"' Rule 9 then says: "On receipt of the said order, the court or tribunal appealed from shall, in the absence of any special directions in the order, act in accordance with the provisions contained in Order XL V of the Code, so far as applicable".

It is to be noted here that although this rule does refer tc· the provisions of the Order XL V of the Civil Procedure Code, these provisions l(Lre to be followed only so far as they are applicable. lt is surely the duty of the High Court to sec that security is furnished or a deposit is made in accordance with the directions of the Supreme _Court and these directions are to be found in the order of the Supreme Court .which the Registrar is bound to transmit to the High Court under Order Xlll, rule 8 of our Rules. We do not think it is necessary for the appeliants to Ille afresh a copy of the Supreme Court order or the petition upon which it was made in order that they may form part of the record of the Supreme Court appeal.

They would come in the record as soon as they arc transmitted by the Registrar in accordance with the rnlc of our Court mentioned above and would have to he included in the Paper Book when it is printed, The Registrar of the High Court undoubtedly took thes<: orders as part of the record without the appellants' filing them afresh, for he accepted the security and deposit of other moneys from the appellants on th~ basis of these orders.

If there was any failure on the part of the appellants to furnish the security or to m~ke the deposit in the way indicated in the order r.1' the Supreme Court. it would have been the dutv nf the Registrar of the High Comt to intim;,fe these facts to the Registrar of the Supreme C0urt and the latter thereuoon could take steps for revoking the special leave-· as is contemplated by Order XllI, rule 12 of our Rules. ln our opinion, it is also not necessary for the apoellants to make a formal application for admission of the appeal in cases where spci.:i<tl leave has been granted by the Supreme Court; and thi~ appears clear from the provisions of Order XXXIL rule 9 of the Original Side Rules of the Calc1itta High Court which runs as follows: "9.

On the admission of an appeal to the Supreme Court whether by the order of this Court under Order XLV, rule 8 of the Code, or by an order of the Supreme Court giving the appellant Special Leave to Appeal, but subject in the latter case to the carrying out of the directions of the Supreme Court as to the security and the deposit of the amount reqt!ired by rule 5, notice of such admission shall be issued by the Registrar for service on the respondent on the record, whether he shalt have appeared on the hearing of the application for a certificate under Order XLV. rule 3 of the Code, or not.

Such notice shall be ,served by the attorney for the appellant and an A Jtidavit of due service thereof shall be filed by such attorney immediately after such service"_ Toe opening words of this rule plainly indicate that there could be admission of ,appeal either by order of the High Court under Order XLV, tule 8 of the Civil Procedure Code or by the order of the Supreme Court 1tself giving special leave to appeal. (As the order :granting special leave itself lays down the conditions to he fulfilled bv the aooellar1ts. the admission will be re_garded as finaJ only when the directions are complied \v1th and as soon as this is done it would be the dutv of the Registrar to issue a notice of the admission o-f the appeal for service upon ~he respondents). This r:otice i~ to be served by the attorney for the appellants and an affidavit of due service shall be filed bv hini immediately after the service is effected. Tn the present case the Registrar.

Original Side of th,~ Cakutta High Court should have issued a notice of !955 Shim .lute Baling Ltd. Hindlev and C11. itd. ¥,ukherjea C. .!. Shh•a Jute Baling ltd. Hindley and Co. Lrd. Mukherjea C. J. April 15 [ 1955] the admission of the appeal to be served upon the respondents as soon as the security for costs and other deposits of money were made by the appellants. This was not done as the procedure to be followed was not correctly appreciated. It is· true that the appellants remained idle for a considerable oeriod of time even after they furnished security ancf did not take any steps towards printing of the record. But as there was an initial irregularity in the matter of issuing a notice under Order XXXIJ, rule 9 of the Original Side Rules of the Calcutta High Court, we are unable to hold that the appellants were guilty of any !aches for which the special leave deserves to be rescinded. The resnlt is that the application of the respondents is dismissed.

The Registrar, Original Side of the Calcutta High Court, will now issue a notice under Order XXXrI. rule 9 of the Original Side Rules and prompt steps should be taken by the appellants towards nrinting and transmission of the record to this Court. We make no order as to costs of this application. THE REGISTRAR OF TRADE MARKS ASHOK CHANDRA RAKHIT LTD. [ s. R. DAS, BHAGWATI and SINHA JJ.] The Trade Marks Act 1940 (Act V of 1940), s. 13--Meanin}? and scope of-Registration subiect to disclaimer-S. 76-Appeal to the High Court-When can the Hiflh Court interfere-Registrar, discretion of-Proper approach in such a case. The exercise of the power conferred on the Registrar by s. 13 of the Trade Marks Act is alwavs a matter of discretion to be exercised, not capriciously or arbitrarilv but, according to sound principles laid down for the exercise of all judicial discretion. The existence of the two jurisdictional facts referred to in clauses (a) and lb) of s.

13 and the finding that the trade mark contains pans or matters to the: exclusive use of which the proorietor is not entitled does not condude the matter and it must further be cmblished that some good !?l'OUnd exists for the imposition of n disclaimer and the tribunal will exercise the discretionary power for good cause shown.