R. Dayal, J.By this revision-petition, the petitioner. I.T.C. Ltd. a company registered under the Indian Companies Act, 1956, has challenged the order dated 27-5-1991 of Shri T. Dorjee, the learned District Judge, Sikkim, rejecting the petitioners application in Civil Suit No. 2 of 1991. under O. VII, R. 11 of the Code of Civil Procedure, for rejecting the plaint on the grounds that the plaint does not disclose any cause of action and the suit is barred by law.

2. Suit No. 2 of 1991 from which this revision has arisen was filed by respondents Nos. 1 to 4 on 7-3-1991. Respondent No. 5. Druk Investment Company Private Ltd.. is the first defendant and the petitioner-company (hereinafter referred as ITC) is the second defendant in the suit. The plaintiffs haw claimed the following substantive reliefs:

a) A declaration that the defendants are not entitled to use the said marks on any such cigarette or on the cigarette packets, whatsoever by themselves or by their dealers or servants. or agents.

b) A perpetual injunction restraining the defendants, their servants, agents, dealers, associates, or assigns from manufacturing, and or marketing, and or advertising and or dealing in cigarettes with the marks "W.D. & H.O. Wills" and or "Wills" in any manner whatsoever either by using any of the said marks on any cigarette or on the. packets or on the cartons of such cigarettes or by, advertising the same in any manner whatsoever.

c) (i) If necessary, a declaration that the purported registration of the mark "W.D. & H.O. Wills" and or "Wills" in favour of the defendant No. 2 is void and non est in the eye of law.

(ii) If necessary cancellation of the said registration of the Defendant No. 2 in respect of the mark "W.D. & H. O. Wills" referred to in paragraph 6(e) above.

3. On 21-1-1991. three other persons had files a similar suit (suit No. 1) tor a declaration and perpetual injunction in substantially the same terms in which these reliefs mentioned as (a) and (b) above have been claimed in the present suit, against the same defendants. The plaintiffs have alleged that from a publication in the Times of India dated 12-2-1991. they came to know about the pendency of that suit in the Court of the District Judge. Sikkim challenging the user of the mark "W.D. & H.O. Wills" and or "Wills" by ITC in respect of the cigarettes manufactured by it. On the basis that the user of the said mark has caused and is likely to cause deception and confusion, whereupon they got interested in the matter and contacted the plaintiffs and obtained copies of the pleadings of that suit and came to know that the plaintiffs had made the following allegations in that suit:

a) That the names "W.D. A H.O. Wills" and or "Wills" were the trade marks of Imperial Tobacco Company and British American Tobacco, the founders of the brand or trade marks "W.D. & H.O. Wills" and or "Wills" and these marks represent the original manufacturers of the brand name in United Kingdom. The aforesaid British companies do not have any manufacturing activities in India and do not have any connection with ITC:

b) ITC has been misleading the general members of the public by creating a false impression that the cigarettes manufactured and sold by it were made with the expertise of (he said foreign companies, or they were manufactured and sold in collaboration with the foreign companies with whom the brand names "W.D. & H.O. Wills" and or "Wills" are associated. The plaintiffs have further alleged that in that suit. ITC took the following pleas:

i) "W.D. & H.O. Wills" is a registered, trade mark of ITC and has been used by it since 1942 when it was know n as Imperial Tobacco Company of India Ltd.:

ii) ITC has the statutory right to use the aforesaid mark in respect of the cigarettes as the same is registered as a trade mark bearing No. 7669 issued by the Registrar of Trade Marks. Bombay;

iii) There is no foreign company in U.K.. known as "W.D. & H.O. Wills" and there is no company manufacturing and or selling cigarettes in U.K. by that mail:

iv) The allegation made by the plaintiffs that "W.D. & H. O. Wills" and or "Wills" were two foreigners who were the original founders of the "W.D. &. H.O. Wills" and or "Wills" in U.K. is entirely untrue;

Further allegations made by the plaintiffs are as under:

i) The marks "W.D. & H.O. Wills" and or Wills were very well known in the English market and have been known in India since before 1902 by which time the said marks had acquired a high reputation in the Indian market. The said reputation is still continuing throughout the world. People invariably associate these marks "W.D. & H.O. Wills" and/or "Wills" with quality which is associated with the widely known manufacturers of cigarettes, namely. Imperial Tobacco Ltd. Of Bristol and British American Tobacco Ltd. Of London:

ii) By the user of these marks, ITC has conveyed and is still conveying an impression in the minds of the average cigarette smoking public in India that ITC is associated with and or is a collaborator of the said foreign companies owning the aforesaid trade marks and as such its products are made using the same formula, know-how and expertise which is associated with the cigarettes manufactured by the aforesaid foreign companies;

iii) The use of the aforesaid marks by, ITC has confused and deceived and is likely to deceive and confuse the general public smoking cigarettes and this amounts to unfair trade practice and is also resulting in the passing off by ITC of its products as the products of the foreign companies and/or as having associated with them;

iv) The assertion of ITC that it is a registered proprietor of the trade mark "W.D. & H.O. Wills" is incorrect, misleading and false;

v) The registration of the mark "W.D. & H.O. Wills" bearing trade mark No. 7669 issued by the Registrar of Trade Marks in Bombay in respect of "manufactured tobacco" is void and is a nullity in the eyes of law and is liable to be cancelled on the following grounds:

A) The said registration is likely to cause and or has caused confusion and deception and as such the same was not registrable under S. 11 of the Trade and Merchandise Marks Act;

B) The said registration was originally obtained by fraud as at the time of registration

(a) ITC made or must have made the following false representations:

(i) there is no foreign company in U.K. owning the mark "W.D. & H.O. Wills" and/or "Wills" and there is no company manufacturing or selling cigarettes in U.K. by that name;

(ii) "W.D. & H.O. Wills" and/or "Wills" were not the original founders of "W.D. & H.O. Wills" and, or "Wills" brand name in U.K.;

(iii) Imperial Tobacco Company of India Ltd., has been marketing cigarettes with that mark exclusively and that mark has no foreign origin;

(b) ITC suppressed that the two foreign companies, enjoyed proprietary rights in respect of the said trade marks;

(C) The said registration was not at the commencement of the proceedings distinctive of the goods of the registered proprietor and was made in violation of S. 9 of the Trade and Merchandise Marks Act, 1958;

vi) The plaintiffs are not entitled to use the said marks in respect of their cigarettes and thereby cause confusion or deception in the minds of innocent smokers including the plaintiffs and the registration of the mark cannot grant ITC the protection against an action for passing off deceit or unfair trade practice;

vii) The plaintiffs for themselves and on behalf of the cigarette smoking public have a right to see that they are not deceived and confused and to prevent such deception or confusion they are entitled to a declaration that theC cannot use the aforesaid mark in respect of the cigarettes manufactured by it. Further, ITC has an obligation to all cigarette smoking public not to manufacture, market, advertise or deal in cigarettes with the aforesaid mark. There exists no standard for ascertaining the actual damage caused or likely to be caused by invasion of the right of the public and as such compensation in money would not afford adequate relief;

(viii) The plaintiffs have suffered incalculable loss and damage in Sikkim on account of the wrongful act of the defendants;

(ix) Since numerous, persons have the same or common interest in the suit, the plaintiffs have instituted this suit in a representative capacity for and on behalf of and for the benefit of all cigarette smoking public except the three persons who have filed Civil Suit No. 1 of 1991;

4. On 24-4-1991, ITC filed an application under O. VII. R. 11 of the Code of Civil Procedure, alleging therein that on a meaningful reading of the plaint, the allegations made are vexatious, merit-less and do not disclose a clear right to sue and only an illusion of a cause of action has been created. It is alleged that the mark "W.D. & H.O. Wills" and/or "Wills" is admittedly a trade mark of ITC and, therefore, the endorsement of that mark on its packets, cartons or cigarettes cannot be said to be a false representation made by ITC knowingly or without belief in its truth. It is further stated that no allegation has been made in the plaint that the plaintiffs have acted in reliance upon the aforesaid representation and suffered any damage for that reason. So, the allegations do not disclose the alleged cause of action of deceit and there is no averment on the basis of which the reliefs of declaration and injunction can be claimed by the plaintiffs. It is further stated that since the plaintiffs are aware of the true facts, there is no question of any deception, and, if at all, they are entitled to any relief, they can claim only damages for deception. Besides, there is no obligation on the part of ITC not to use the aforesaid mark. Further, it is said that reliefs of declaration and injunction arc barred under the provisions of the Trade and Merchandise Marks Act, 1958 and the Civil Court does not have the jurisdiction to cancel, rectify or prevent the use of the registered trade mark. Territorial jurisdiction of the Court in Sikkim is also challenged.

5. A reply was filed by the plaintiffs to this application. It is stated therein that on an application under Order VII, Rule 11, only the plaint can be looked at but ITC has introduced various other irrelevant matters. The various allegations made in the plaint have been repeated and it is asserted that the Court at Gangtok has the jurisdiction. It is denied that a decree for a declaration or injunction cannot be granted or that the suit is barred by law. It is stated that there is no express bar to the filing of such a suit or for claiming reliefs of declaration and injunction under the provisions of the Trade and Merchandise Marks Act, 1958 and there is also no implied bar for filing such a suit. Reference is made to S. 27(2) of the which provides that nothing in the shall be deemed to affect the rights of action against any person for passing off goods as the goods of another person or the remedies in respect thereof. It is stated that relief of temporary injunction or declaration cannot be granted by the authorities constituted under the. and such reliefs can be granted only in a Civil Suit. Further, it is averred that the registration was obtained by ITC by fraud and is, therefore, void ab initio and does not give any right or protection to ITC under the provisions of the said Act. It is also stated that ITC is not able to show any registration in respect of the mark "Wills" and. therefore, in any event, no protection can be claimed by ITC under the said Act in so far as the mark "Wills" is concerned. It may, however, be pointed out that during arguments, no such distinction was made and no argument was advanced that even if ITC is entitled to use the mark "W.D. & H.O. Wills", it is not entitled to use the mark "Wills". Arguments proceeded on the assumption that either ITC is entitled to use both the marks or none at all.

6. In the impugned judgment dated 27-5-1991, the learned District Judge formulated three points for determination. namely : (i) whether the plaint discloses any cause of action; (ii) whether the Civil Court has jurisdiction to try and entertain the suit; and (iii) whether the suit is barred under any law. On the third point regarding jurisdiction no decision was given and it was said that the question is a mixed question of law and fact. As regards cause of action, he did not give any decision about the alleged deceit and said that the suit is not for deceit alone, as it is also to prevent confusion. Regarding the cause of passing off, he has observed that S. 27(2) of the Trade and Merchandise Marks Act, 1958, permits the passing off action even against the registered proprietor of a trade mark. He did not even consider the argument advanced by ITC that a passing off action can be brought by only a person whose proprietary right has been injured or is threatened to be injured by an act of the defendant resulting in passing off his goods as the plaintiffs, and not by any member of the public who claims to be confused or deceived by the user of a mark by the defendant, and characterised it as extreme and wholly untenable. He has observed that under the common law and the law of Torts and also under the law of Trade Marks, it has been held that no one has the right to deceive or confuse the public and when the public is liable to be confused or deceived by a particular trade mark, then the right belongs to the public to file a suit for injunction to prevent the user of the mark which causes deception or confusion Father, he has said that the plaintiffs have alleged the registration in favour of ITC to be invalid in view of Ss. 32 and 35 of the. and since the allegations in the plaint have to be taken as true for the purpose of the application under O. VII. R. 11. CPC. the position would be that ITC has no valid registered trade mark and the contention that no suit for declaration or injunction can be filed against ITC because it has a registered trade mark. cannot be accepted as correct. It is further stated that the Honble Supreme Court has reiterated in S.P. Gupta Vs. President of India and Others, and D.S. Nakara and Others Vs. Union of India (UOI), "that whatever injury or harm is caused to the public then any member of the public have the right to institute an action for getting judicial redress". He has also said that the Court has received affidavits from various sections of the people from all over the country most of whom are smokers of "Wills" brand cigarettes expressing their intention to participate in 1 be proceedings in response to the notices published in the national papers under O. I, R. 8, CPC. and unless an opportunity is given to these smokers to participate in the proceedings, it will not be possible for the Court to ascertain the truth and decide the matter once and for all when such serious allegations have been made against ITC. On the question as to the bar of the suit by the provisions of the Trade and Merchandise Marks Act. 1958, he has said that before the enactment of the. there was a pre-existing common law right to claim injunction restraining the traders from deceiving and confusing the public and as this right was not created by the. because it existed prior to and independently of th Act. It cannot be said that the Civil Courts jurisdiction is impliedly barred. According to him. S. 56 of the is only an enabling provision. He has said that merely because the contains provision for cancellation or rectification of a trade mark, it does not mean that the Civil Court does not have the right to do so. In this connection ho has referred to Raja Jagdish Pratap Sahi Vs. State of Uttar Pradesh, and Manohar Lal Chopra Vs. Rai Bahadur Rao Raja Seth Hiralal, . and has slated that the Honble Supreme Court has held that merely because Order 39, Rr. 1 and 2. CPC. contain provisions for granting a temporary injunction, the right of a Civil Court to grant an injunction outside the said provision is not barred. He has also said that even if the Civil Court does not have the jurisdiction to cancel or rectify a trade mark, there can be no doubt that the Civil Court has the power to grant declaration or injunction as prayed for.

7. Aggrieved. ITC has preferred this revision. Along with this revision were also posted for hearing one Civil Misc. Appeal No. 3 of 1991 which arose from the order of temporary injunction made by the learned District Judge and also Civil Revision No. 8 of 1991, which was filed by ITC against his order, rejecting its prayer for revocation of the leave granted under O. I, R. 8, C.P.C. Another revision (Revision No. 6/911 which arose from similar order under O. VII, R. 11, CPC, in Civil Suit No. 1/91 mentioned earlier and the two Civil Misc. Appeals (Nos. 1 / 91 and 2/91) which arose from the order of temporary injunction passed in that suit were also posted for hearing. At first, hearing of the present Revision was taken up along with the other Revision (i.e. No. 6/91). The revision was argued by Shri Ashok Desai, senior advocate on behalf of ITC and Dr. Shanker Ghosh, senior advocate on behalf of the plaintiffs, for a number of days with extraordinary thoroughness. After concluding arguments in this revision and, in fact. in continuation thereof, on 22-8-1991, Shri Desai urged the Court to postpone the hearing the Civil Misc. Appeal and the other Revision till the decision of the present revision, saying that he would like to go through the judgment of this revision before proceeding further, and if the revision was allowed, the hearing on the other appeals would be a futile exercise extending over a number of days. On the other hand, Dr. Ghosh opposed Shri Desai and pressed that the matter should be heard in continuation. However, after arguments were concluded in the revision, I came to the conclusion that the impugned order could not be sustained. Accordingly, I pronounced the order allowing the revision with reasons to follow. That order is reproduced at the end of the judgment. I now proceed to record my reasons for the order.

8. Shri Desai has urged the following points in support of the revision :

(A) Several paragraphs of the plaint containing material allegations have not been verified by the plaintiffs at all, and the plaintiffs did not apply for amendment in the plaint to supply the deficiency even after the defect about verification was pointed out several days before the conclusion of arguments in the Revision, and so the allegations which have not been verified, should be excluded from consideration;

(B) The plaintiffs have not made necessary averments in the plaint to disclose cause of action on any of the several counts on which reliefs are claimed by them, viz., deceit, causing confusion, passing off and unfair trade practice;

(C) No particulars have been given in the plaint to show that the registration of the trade mark was obtained by ITCs predecessor company by practising fraud and no case has been made out to show that the registration is vitiated by illegality or contravention of any provision of the;

(D) the is a complete Code providing for registration and its cancellation or variation. Registration is valid so long as it subsists. S. 28 of the Trade and Merchandise Marks Act, 1958 confers the exclusive right to use the registered trade mark on its registered proprietor and no declaration or injunction can be granted against this statutory right. The right of registration is not a common law right. It has been created by the and its validity can be challenged only in the manner provided in the;

(F) The impugned judgment is vitiated by illegality because it has all the look of an ipse dixit, without the quality of judicial persuasiveness. The judgment states that passing. off action is not barred against a registered proprietor of a trade mark, hut it does trot deal with the argument of ITC that passing off action is available only to a trader whose business or goodwill has suffered or is threatened to suffer by an act of the defendant who passes off his goods as plaintiffs. According to the learned counsel, the characterisation of ITCs contention as extreme and untenable is wholly unwarranted. The judgment does not deal with the other arguments of ITC as well and is not based on consideration of the relevant law placed before the learned District Judge and does not even consider the Supreme Court judgments which were admittedly cited before him. The judgment says that the plaintiffs have made allegations of serious nature against ITC but does not spell out how any allegations constitute any cause of action. According to the learned counsel, the judgment is based on no intelligible reasons; the so-called reasons being a mere pretence of reasons.

9. On the other hand. Dr. Ghosh has urged that the omission to verify a pleading is a mere irregularity which does not affect the existence of the paragraphs, not verified, and, therefore, the whole of the plaint, as it stands, has to be taken into consideration. His further submission is that S. 11 of the Trade and Merchandise Marks Act prohibits the registration of a mark the use of which would be likely to deceive or cause confusion and as such gives a statutory right to every person not to be deceived or confused. It is further submitted that the registration was obtained by the Imperial Tobacco Company of India Limited, the predecessor of ITC, by fraud and in contravention of the provisions of S. 11 of the Trade and Merchandise Marks Act and. further that the trade mark was not distinctive of the goods of ITC, as the mark belonged to the two foreign company and so the registration was invalid with the result that ITC is not entitled to the use of the mark. It is further submitted that the provision contained in the to seek rectification is an enabling one and does not bar the jurisdiction of the Civil Court to grant the reliefs of declaration and injunction prayed for by the plaintiffs. According to him, the judgment of the learned District Judge docs not suffer from any illegality.

10. As regards verification, the plaint is not verified at all in respect of paragraphs 7, 11 and 14 to 22. This defect was pointed out by Shri Desai the learned counsel for the petitioner on 14-8-1991. Arguments continued up to 22-8-1991. Shri Desai has urged that since no application for amendment was made to supply the deficiency in the verification clauses even after the deficiency had been pointed out by him, the paragraphs of the plaint not verified, should not be treated as part of the plaint. On the other hand. Dr. Ghosh has referred to three decisions in support of his contention that an omission to verify is a mere irregularity and a pleading which is not verified as required by Order VI. Rule 15. CPC, may be verified at any later stage of the suit. These decisions are All India Reporter Ltd. and Another Vs. Ramchandra Dhondo Datar, , Shib Deo Misra and Others Vs. Ram Prasad and Others, . Hari Ram Vs. Balak Ram, and they support the contention of Dr. Ghosh. Furthermore. S. 99 of the CPC says that no decree shall be reversed or substantially varied, nor shall any case be remanded, in appeal on account of any misjoinder or nonjoinder of parties or causes of action or any error, defect or irregularity in any proceedings in the suit, not affecting the merits of the case or the jurisdiction of the Court. Since the defect about verification does not affect the merit of the case nor the jurisdiction of the Court, I am of the view that lack of verification in respect of certain paragraphs of the plaint and the failure of the plaintiffs to move an application for amendment to cure the defect after the defect was pointed out by Shri Desai in this Court, is of no consequence, so far as this revision is concerned.

11. Order VII. Rule 11 mandates that the plaint shall be rejected in the four kinds of cases specified in Cls. (a) to (d) thereof. For the present case, only Cls. (a) and (d) are relevant. These are reproduced as under;

11. Rejection of plaint. The plaint shall be rejected in the following cases :

(a) where it does not disclose a cause action;

(b) and (c)

(d) where the suit appears from the statement in the plaint to be barred by any law;

12. As pointed out in Jagannath v. Smt. Chandrawati. AIR 1970 SC 309 (FB), there is a clear distinction between a case where the plaint itself does not disclose any cause of action and a case in which, after the parties have produced oral and documentary evidence, the Court, on consideration of the entire material on record, comes to the conclusion that there was no cause of action for the suit. In the latter case, obviously, the plaint cannot be rejected under O. VII, R. 11, C.P.C. The question whether the plaint does not disclose cause of action, has to be determined from the pleadings of the plaintiff alone. If the plaint is vague, the Court should clear the vagueness by examining the plaintiff under O. X. R. 2. C.P.C. As pointed out by the Privy Council in AIR 1949 78 (Privy Council) , the phrase "cause of action" has not been defined in any enactment, but the meaning of it has been judicially considered in various decisions. Cause of action means the whole bundle of material facts which are necessary for the plaintiff to prove, if traversed, in order to support his right to the judgment of the Court. Therefore, where the defendant claims that the plaint does not disclose cause of action, it is necessary for the Court to scrutinise the plaint in order to find whether the plaintiff has averred all the necessary allegations which, if traversed, are necessary to be proved by him to entitle him to relief. At the same time, the plaintiff pleads more than one cause of action and he is able to show that decree could be passed for the relief or a part of the relief claimed on any of the several causes of action, the plaint cannot be rejected. The plaint has to be rejected only where it does not disclose any cause of action whatsoever, and he is to be wholly non-suited. Further, the plaint should be read not in a formal manner but with a view to get at the substance of the matter. The Honble Supreme Court pointed out in T. Arivandandam Vs. T.V. Satyapal and Another, that the Court should exercise the power under Order VII, Rule 11. CPC" if on a meaningful - not formal Reading of the plaint it is manifestly vexatious, and meritless, in the sense of not disclosing a clear right to sue", taking care to see that the ground mentioned therein is fulfilled. And, if clever drafting has created the illusion of a cause of action, the Court should nip it in the bud at the first hearing by examining the party searchingly under Order X. CPC. A meaningful reading of the plaint means that the plaintiff merely by a camouflage cannot maintain a suit, if according to the substance of the allegations made in the plaint, no cause of action is disclosed. While dealing with the question of the bar of limitation in a suit, the Honble Supreme Court pointed out in L. Janakirama Iyer and Others Vs. P.M. Nilakanta Iyer and Others, in paragraph 12 that in construing the plaint, the Court "must have regard to all the relevant allegations made in the plaint and must look at the substance of the ma(sic) and not its form." The same principle would, obviously, apply while construing the plaint for the purpose of Order VII, Rule 11. Again, while construing the plaint of a particular case to see whether the civil court had the jurisdiction, the Supreme Court in Abdulla Bin Ali and Others Vs. Galappa and Others, , applied the same principle and construed the plaint to find the substance and not in a formal manner and observed in paragraph 6 that even though the plaintiffs in that case "had alleged that the defendant No. 2 was a tenant but on the denial of the tenancy and the title of the plaintiffs-appellants they filed a suit treating the defendant to be a trespasser and a suit against a trespasser would lie only in the civil Court and not in the revenue Court" and held that the civil Court had the jurisdiction. It is in the light of this legal position that the plaint has to be scrutinised to find whether the plaintiffs have pleaded all the material allegations which it was necessary for them to prove, if traversed, in order to entitle them to any of the reliefs claimed.

13. One of the causes of action on which the plaintiffs claim relief is deceit. In paragraph 16 of the plaint, the plaintiffs have alleged that in any event, the registration of a mark does not and cannot, in law grant ITC protection against the action for deceit etc. As per Halsburys Laws of England, fourth edition (volume 31), an action of deceit is maintainable at the suit of the representee for damages in respect of fraudulent misrepresentation and is founded in tort. In such an action, the burden is on the representee of alleging and proving the following matters;

(1) that the alleged representation consisted of something said, written or done which amounts in law to a representation: (2) that the defendant was the representor; (3) that the plaintiff was the representee; (4) that the representation was false; (5) inducement and materiality; (6) alteration of position; (7) fraud; and (8) damage.

14. The only damage which the law recognizes is actual and temporal injury, that is, some loss of money or moneys worth, or some tangible detriment capable of being quantified and assessed.

It does not include mental distress, unless accompanied by physical effects.

It is also necessary for the representee to establish a causal connection, as distinct from a relation of mere sequence and succession, between the damage and misrepresentation. The damage must be shown to have been a natural and direct result of the misrepresentation being believed and acted on or. where the representee is induced by fraudulent misrepresentation to believe a certain state of things to exist, of the representation being believed. Where this connection is not made out. then, even if he proves that he did in fact sustain the damage alleged by reason of his belief in the truth of the misrepresentation the representee will not succeed in the action; but, where it is made out, he will succeed.

15. According to Salmond and Heuston on the Law of Torts (nineteenth edition), the "Tort of deceit consists in the act of making a wilfully false statement with the intern that the plaintiff shall act in reliance on it, and with the result that he does so act and sutlers harm in consequence." According to this authority, there are join main elements in this tort: "(1) there must be a false representation of fact; (2) the representation must be made with knowledge of its falsity; (3) it must be made with the intention that it should be acted on by the plaintiff, or by a class of persons which includes the plaintiff, in the manner which resulted in damage to him; (4) it must be proved that the plaintiff has acted upon the false statement, and has sustained damage by so doing." It is further stated that a false statement is not actionable in deceit unless it is wilfully false. A reference has been made to the decision of the House of Lords in Dcrry v. Peek (1889) 14 App Cas 337. where "the directors of a tramway company which had authority to use steam power with the consent of the Board of Trade, believing, honestly but unreasonably, that his consent would be given as a matter of course, issued a prospectus in which it was staled that they had the right to use steam power without reference to any condition. In reliance on this statement the plaintiff took shares in the company. The promoters were held not liable in damages, on the ground that there was no proof that the error was fraudulent." This authority emphasises, that no action will lie lor a false statement unless the plaintiff did in fact rely and act upon it.

16. Thus, in an action of deceit, the plaintiff must allege the following facts :

1. The defendant made a false representation;

2. The defendant made it fraudulently, that is, knowing it to be false or not knowing it to be true;

3. The defendant made it with the intent that the plaintiff should act on it,

4. The plaintiff acted on it; and

5. The plaintiff by acting on it. Sustained damage.

Misrepresentation and fraud are the two essential ingredients of an action of deceit. Order VI. Rule 4 of the CPC says that in all cases in which the patty pleading relies on any misrepresentation, fraud, breach of trust, wilful default, or undue influence and m all other-cases in which particulars may he necessary, particulars (with dates and items if necessary ) shall be staled in the pleading. In the House of Lords decision in Dow Hager Lawrence v. Lord Norreys, (1890) 15

App C 210, Lord Watson referred to the observations of Earl Selborne in Wallingford v. Mutual Society (1880) 5 App Cas 685 (697):

General allegations, however strong may be the words in which they are stated, are insufficient to amount to an averment of fraud of which any Court ought to take notice; and further observed It is not a sufficient compliance with the rule to state facts and circumstances which merely imply that the defendant, or some one for whose action he is responsible, did commit a fraud of some kind. There must be a probable, if not necessary, connection between the fraud averred and the injurious consequences which the plaintiff attributes to it; and if that connection is not sufficiently apparent from the particulars stated, it cannot be supplied by general averments. Facts and circumstances must in that case he set forth, and in every genuine claim are capable of being stated leading to a reasonable inference that the fraud and the injuries complained of stood to each other in the relation of cause and effect.

The Honble Supreme Court observed in Bishundeo Narain and Another Vs. Seogeni Rai and Jagernath, :

25 Now if there is one rule which is better established than any other, it is that in cases of fraud, undue influence and coercion, the parties pleading it must set forth full particulars and the case can only be decided on the particulars as laid. There can be no departure from them in evidence. General allegations are insufficient even to amount to an averment of fraud of which any Ct. ought to take notice, however strong the language in which they arc couched may be, and the same applies to undue influence and coercion.

17. Coming to the plaint of the present case, as regards false and fraudulent representation, the allegation is that the mark "W. D. & H. O. Wills" and or "Wills" which was owned and registered by the two foreigners has been used by ITC on the various brands of cigarettes manufactured by it and this is suggestive of the fact that the cigarettes being sold in the packets carrying this mark are manufactured and sold by the foreign companies or in collaboration with them, with the expertise of the foreign companies. The alleged misrepresentation and fraud is by the use by ITC of the aforesaid brand name in respect of the cigarettes manufactured by it in the circumstances mentioned above. The plaintiffs of suit No. 1/91 have annexed a photostat copy of some of the packets of cigarettes manufactured by ITC as annexure "II" to their plaint. A bare perusal of the packets shows that they do not carry any misrepresentation of the kind alleged by them. Each of the packets contains an endorsement "Made in India" and either a legend "A Product of I.T.C. Ltd." or a legend "A Brand Owned by I.T.C. Ltd." Along with the brand name is written the letter "T" in a circle to indicate that it is the trade mark of ITC. The address of ITC Ltd., is given on each packet as "37, CHOWRINGHEE, CALCUTTA". In addition, the particular place of manufacture in India is also mentioned. It is evident that the allegation that the use of the brand name by ITC creates either an impression of the goods being of foreign origin or of being manufactured in collaboration with Foreign Companies or with the expertise of the foreign companies is inferential in nature and that inference is contradicted by the photostat copy of the packets annexed with the plaint, as the packets clearly indicate that the manufacture was done in India and the product is of ITC or the brand name is owned by ITC, which means that ITC indicated in clear terms that the product was not of foreign origin and the brand name has been used by it, being registered in its name. The plaintiffs have not disputed the actual fact of registration. There is no suggestion about any foreign collaboration from the packets.

18. Dr. Ghosh has urged that for the purpose of deciding the application under Order VII, Rule 11, CPC, the allegations made in the plaint have to be taken as correct, and, therefore, the allegations made in the plaint about the impression being created that the goods were of either foreign origin or were manufactured in the collaboration with a foreign company should be taken as correct. There can be no dispute as to the legal proposition urged by the learned counsel; but this legal position applies only to statements of facts. The allegation that the use of the brand name by ITC on the packets creates an impression of the product being of foreign origin or of being manufactured in collaboration with foreign companies or with the expertise of the foreign companies is not a mere statement of fact but is an inference from the facts stated on the packets. Inscriptions on the packets are the allegations of facts, which have to be taken as correct, but this is not so about the suggestions which arise therefrom. If the inference alleged in the plaint is not warranted from the packets, it is a clear case of clever drafting to create an illusion of a cause of action.

19. Dr. Ghosh has also argued that no photostat copy of any packets of the cigarettes manufactured by ITC has been annexed with the plaint of suit No, 2 of 1991 from which this revision has arisen, and the plaint of suit No. 1 of 1991 should not be looked into to know about the representation made by ITC. However, I am unable to agree with this contention for two reasons; one is that the plaintiffs of suit No. 2 have referred to certain portions of the plaint of suit No. 1 of 1991 in their plaint and when they have done so, they cannot be heard to say that the reading should be restricted to the portions referred by them; and the other is that to make the allegation of false and fraudulent representation it is essential to allege the representation made and without the representation shown to have been made on the packets, the plaintiffs cannot make an allegation of the misrepresentation averred by them. If the inscriptions on the packets are not read, then the whole basis of the alleged misrepresentation will be knocked off. This is of considerable significance in view of the requirement of law that the allegations of fraud and misrepresentation have to be made not in a vague fashion but with precision and necessary particulars. Therefore, there is no merit in the argument that the inscriptions on the packets cannot be looked into.

20. Furthermore in an action of deceit, one of the several ingredients which must be shown to be present is that the plaintiff must have acted on the representation and while so acting must have suffered harm in consequence, A mere attempt to deceive is not actionable. In the present case, the plaintiffs have not claimed any damages for any damage having been suffered by them. They profess to have filed the suit in order to prevent ITC from practising deceit in the name of public interest. It is clear that the plaintiffs are aware at least now of the true factual position that the product of ITC bearing the aforesaid brand name is neither of foreign origin nor is being manufactured with any foreign collabortion nor with foreign expertise. The same must also be true about those for whose alleged benefit, they have brought the suit, for the alleged beneficiaries cannot, obviously, be presumed to be in dark. That is apart from the fact that no suit in the nature of public interest litigation, except as provided for specifically in Section 91 and Order I, Rule 8, CPC, if the procedure prescribed there can be said, in any sense, to provide for litigation of that kind, is permissible. Where the allegations made in the plaint do not constitute cause of action, the mere allegation that they have purported to bring the suit in public interest, does not have the magic of making good the deficiency. When the plaintiffs and all others placed in their situation are aware of the true facts, there is absolutely no question of their acting on any misrepresentation and, in consequence, of being deceived. It is of essence in an action of deceit that the deceit must have been completed. No person can say that he should be saved from being deceived. There can be no greater guarantee against deceit to protect a person who knows that some other wants to deceive him by a fraudulent misrepresentation than his own decision not to act on the misrepresentation. When the law cannot compel a plaintiff to take such a decision, law will not compel the defendant to act on the allegation of such a plaintiff that the defendant is threatening to deceive him. So, in an action of deceit, reliefs of declaration and injunction are incongruous. Thus the plaint does not disclose any cause for an action of deceit.

21. Another cause on which the plaintiffs have grounded the reliefs claimed by them is passing off. Passing off means, passing off ones goods or business as the goods or business of another. Salmond and Heuston say that to "sell merchandise or carry on business under such a name, mark, description, or otherwise in such a manner as to mislead the public into believing that the merchandise or business is that of another person is a wrong actionable at the suit of that other person." "The law on this matter is designed to protect traders against that form of unfair competition which consists in acquiring for oneself, by means of false or misleading devices, the benefit of the reputation already achieved by rival traders." It is further stated that the true basis of the action is "that the passing off injures the right of property in the plaintiff, that right of property being his right to the goodwill of his business. In general, the violation of a right to property is actionable even though it is innocent and though no damage has been proved. At common law it was necessary to prove an actual fraudulent intention but a different view was taken in equity, and now it is generally accepted that it is not necessary in an action for passing off to prove an intent to deceive." In the High Court of Justice-Chancery Division ease in Derek McCulloch v. Lewis A. May (Produce Distributors) Ltd., (1947) 65 R.P.C. 58, observation was made at page 64 -

It is of the essence of an action for passing off to show, first, that there has been an invasion by the defendant of a proprietary right of the plaintiff, in respect of which the plaintiff is entitled to protection, and, secondly, that such invasion has resulted in damage or that it creates a real and tangible risk that damage will ensue."

22. Again in Erven Warnink B. V. v. J. Townend & Sons (Hull) Ltd., 1980 R.P.C. 31. which was the House of Lords decision. Lord Diplock identified at page 93, five characteristics which must he present in order to create a valid cause of act ion for passing off:

a misrepresentation (2) made by a trader in the course of trade, (3) to prospective customers of his or ultimate consumers of goods of services supplied by him, (4) which is calculated to injure the business or goodwill of another trader (in the sense that this is a reasonably forseeable consequence) and (5) which causes actual damage to a business or goodwill of the trader by whom the action is brought or (in a quia timet action) will probably do so.

In Ruston and Hornsby Ltd. Vs. The Zamindara Engineering Co., . the Hon"hle Supreme Court reiterated that the

Gist of passing off action is that A is not entitled to represent his goods as the goods of B hut it is not necessary for B to prove that A did this knowingly or with am intent to deceive. It is enough that the get-up of Bs goods has become distinctive of them and that there is a probability of confusion between them and the goods of A. no case of actual deception nor any actual damage need be proved.

Legal position is firmly established that passing off action is available to a trader for the protection of his proprietary right in his goodwill or business. This is not a remedy open to the consumers of goods or services to complain about confusion or likelihood of confusion by the use of a particular mark by a trader or manufacturer on his goods.

23. One essential distinction between an action of deceit and passing off is that whereas, in the former, deception is on the plaintiff who alleges that he has been deceived, in the latter case, the deception is not on the plaintiff but on some others. In the former action, the plaintiff claims compensation for the injury caused due to deception practised on him, but in the latter, the plaintiff seeks to protect his proprietary right in his goodwill or business, which is threatened by deception, or confusion or likelihood of deception or confusion on others. Since in the latter case, the purpose is the protection of the proprietary right in the goodwill or business of the plaintiff, actual deception is not an essential ingredient. Even the likelihood of deception or confusion is sufficient. So remedy of injunction is also available in the passing off action. But in an action of deceit, since completion of deception is essential, damages is the only remedy available, and the remedy of declaration or injunction is incongruous. So. in the present case, the plaintiffs have no cause for passing off action and their claim on this count is entirely misconceived.

24. Dr. Ghosh has further urged that every person has the right not to be deceived or confused and this right has been violated by ITC by the use of the mark which is likely to deceive or confuse the public that the products bearing the mark arc the products of the foreign companies that own the mark. In this connection, he has referred to Section 11(1) of the Trade & Merchandise Marks Act. 1958, which prohibits the registration as trade mark of a mark the use of which would be likely to deceive or cause confusion. Reference is also been made to Section 12 (1) of the same Act which says that save as provided in sub-section (3). no trade mark shall be registered in respect of any goods or description of goods which is identical with or deceptively similar to a trade mark which is already registered in the name of a different proprietor in respect of the same goods or description of goods. Reference is also made to the commentary of Dr. Yenkatswaran in support of his contention where it is staled that section 11 exists not merely for the benefit of other traders hut for the benefit of the public at large. The interests of the public are of greater importance than the relative rights of the parties with the result that although the opponent might be estopped by his conduct from opposing registration vet in the public interest the tribunal must take cognizance of any fact that would render registration improper. In considering an objection u/s 12(1), the primary duty of the tribunal "is towards the public and the maintenance of the purity of the Register. When a case is sought to be made out that a particular trade mark is likely to deceive or cause confusion. the contest is not so much between the parties to the litigation as it is a contest between the party defending his right to a particular trade mark and the public, and the duty of the Court must always be to protect the public irrespective of what hardship or inconvenience it may cause to a particular party whose trade mark is likely to deceive or cause confusion. The object of maintaining a trade mark register is that the public should know whose goods they are buying and with whom particular goods are associated. It is therefore essential that the register should not contain trade marks which are identical or which so closely resemble each other that an unwary purchaser may he likely to be deceived. "It is further stated that the question being one of public interest, it is immaterial whether the owner of a registered mark docs not oppose the registration or that he consents to the new registration.. Reference has also been made by the learned Counsel to several authorities where deception or likelihood of confusion has been taken into consideration as a relevant factor for refusal of registration or in the proceedings for rectification of the register of trade marks maintained by the Registrar of trade marks. The argument though seems to he attractive, is devoid of merit. Sections 11 and 12 provide for certain considerations relevant for registration of a trade mark or in a proceeding concerning the rectification of the register of trade marks. The mere fact that they seek to serve sonic public interest, does not mean that they create in every person of the public a right to approach the Civil Court for their violation. The purpose of the Trade and Merchandise Marks Act is to protect the interest of the proprietors of the registered trade marks and. the rights and duties created in relation to the registration, though have to serve a public purpose, are in relation to the rights of the individual owners of the registered trade marks, and the public purpose contemplated therein has to be served in the manner prescribed for the enforcement of the provisions of the. They do not seek to create any right in a general sense. Confusion or likelihood of confusion does not by itself constitute a cause of action for a suit for declaration or injunction. If it were otherwise, the tort or deceit would be otiose, for, no one would like to prefer a cause calling for a higher burden of proof and promising an inferior remedy. Confusion is not a tort, unless it amounts to deceit. It is one of the several ingredients of a passing off action. When the relief of declaration or injunction is not available to a plaintiff on a cause of action of deceit, it would be wholly irrational to say that such a relief would be available on the allegation of confusion or likelihood of confusion, which may be occasioned even without the presence of the element of fraud, even of, misrepresentation which must be present in deceit. If a plaintiff is confused without a misrepresentation by the defendant, it is a sign of plaintiffs weakness and there is no reason why the defendant should suffer for the weakness of the plaintiff. However, the matter is different in a passing off action, but even there, the plaintiff does not have a cause for a declaration or injunction on the allegation of confusion about himself, he has a cause of action for the confusion caused or likely to be caused to others by an act of the defendant. There the remedy is not against confusion but because the defendant has no right to pass off his goods as the goods of the plaintiff and thus to cause loss to the proprietary right of the plaintiff. For enforcement of the special rights created by the under Sections 11 and 12, remedy has to be sought in the manner provided by the same Act. That is available at two stages: one, at the time of registration by opposing registration; and second, subsequently, in rectification proceedings.

25. Dr. Ghosh has referred to a few decisions in support of his contention that an act which is likely to cause confusion is a public wrong for the redressal of which a civil suit is maintainable. One is the McWhirter case reported in Attorney General v. Independent Broadcasting Authority, (1973) 1 All ER 689. This was an action for injunction against the Broadcasting Authority which was threatening to show a film which did not comply with, the statutory requirements and the showing of which would, therefore, be illegal. Lord Denning observed;

We live in an age when Parliament has placed statutory duties on Government departments and public authorities for the benefit of the public - but has provided no remedy of the breach of them. If a Government department or a public authorities transgress the law laid down by Parliament, or threatens to transgress it, can a member of the public come to the Court and draw the matter to its Attention.

I am of the opinion that, in the last resort, if the Attorney General refuses leave in a proper case or improperly or unreasonably delays in giving leave, or his machinery works too slowly, then a member of the public who has sufficient interest, can himself apply to the court itself.

Lord Denning held that McWhirter had sufficient interest to bring the action since he had a television set for which he had paid licence fee and his susceptibility would be offended like that of many others watching television if the film was shown in breach of the statutory requirements. In that case the duty which was sought to be enforced against the Broadcasting Authority was one which the Broadcasting Authority owed to the general public, regarding which no remedy had been provided. The corresponding right created was the right created in favour of the general public. The other case is Attorney-General v. Shrewsbury (Kingsland) Bridge Company decided by the Chancery Division on June 17, (1882) 21 Ch D 752. In that case, the defendant company had without any power (for their powers had come to an end) thought fit to do certain acts which undoubtedly tended in their nature to interfere with public rights, and so tended to injure the public. The question was whether, under such circumstances, the Attorney-General was justified in interfering, though there was no evidence of actual injury to the public. Fry, J. held that he was entitled to do so. The other case is the decision of the Queens Bench Division in the Attorney-General on the Relation of the Warwickshire County Council v. The London and North Western Railway Company decided in November 10, 1898, (1899) 1 QB 72. In that case, the railway company, under a particular statute, had the power to cross a level crossing at a speed not greater than four miles an horn, but they constantly drove their trains at a speed exceeding that limit. Upon an information, filed by the Attorney-General, it was held that as the information had been filed to enforce the express terms of an Act of Parliament, an injunction must be granted, although there was no evidence of any injury to the public. In all these cases, rights had been created in the general public without providing for any remedy. They do not lay down any general proposition of law that any violation of law creates a legal right in every member of the general public entitling him to bring an action by himself or through the Attorney-General. In the present case, rights have not been created in the general public, and whatever rights have been created have been taken care of by the provision of the remedies considered appropriate and adequate by the legislature, in the very statute that created the rights. So these decisions are of no relevance to support the contention of Dr. Ghosh.

26. The other cause of action on which the plaintiffs have relied upon is unfair trade practice. They have alleged that the action of the defendants constitute unfair trade practice and the registration of the aforesaid mark does not give protection to ITC against this cause of action. According to Dr. Ghosh, the use of the mark on the cigarettes manufactured and sold by ITC amounts to unfair trade practice within the meaning of Section 36A (l)(iv) and (v) of the Monopolies and Restrictive Trade Practices Act. 1969 inasmuch as the said mark creates an impression that the Wills brand cigarettes manufactured and sold by ITC have either the approval or the characteristics of the original foreign brand cigarettes and or that the said cigarettes are being manufactured and sold with the approval or affiliation of the foreign companies using the aforesaid foreign brand name which the defendants know or have reasons to believe is false to their knowledge. On the other hand Mr. Desai has contended that the allegations made in the plaint do not amount to unfair trade practice and further that the Civil Court does not have the jurisdiction to deal with a case of this kind.

27. The aforesaid Act empowers the Commission to enquire into any unfair trade practice and to make necessary orders in this regard. Rights and obligations relating to unfair trade practice have been created by the Monopolies & Restrictive Trade Practices (Amendment) Act, 1984 and, therefore, one who feels aggrieved has to pursue the remedy provided m the. with the result that the Civil Court docs not have the jurisdiction to deal with the matter brought before it by virtue of Section 36-A of the.

28. Mr. Desai has also urged that the suit is barred by the provisions of the Trade and Merchandise Marks Act, 1958. In the suit, as staled earlier, the plaintiffs have claimed inter alia a decree for a declaration that the defendants are not entitled to use the mark "W.D. & H.O. Wills" which is admittedly a registered trade mark in favour of ITC and also a perpetual injunction restraining the defendants from using that mark. It appears that the plaintiffs were conscious that they were not entitled to such a declaration and perpetual injunction in view of the mark being registered in the name of ITC. Therefore, they have also claimed a decree for declaration that the mark itself is void and non est and also for its cancellation. But it seems they themselves had doubt whether the Civil Court could allow such claims. This appeals to be the reason that they have made these claims with hesitation by indicating that these reliefs may be granted, only if necessary. Mr. Desai has urged that u/s 32 of the aforesaid Act, the original registration of a Trade Mark has, after the expiration of seven years from the date of such registration, to be taken to be v alid in all respects in all legal proceedings except as mentioned in that section. The Act is said to be a complete code providing for the registration of a Trade Mark and disposal of the objections before its registration as well as after the registration in rectification proceedings and provides a complete machinery for the adjudication of all questions as to the validity or otherwise of a mark with the result that the registration can be challenged only as per the provisions of the and not by a Civil Court. Thus, according to the learned Counsel, the reliefs of declaration and perpetual injunction regarding the use of the mark are barred by Section 28 and the reliefs of the declaration of the mark as void and its cancellation are barred because the which has created the machinery for registration has also provided the machinery for rectification of an incorrect entry in the register. Further, it is contended that the plaintiffs have claimed that fraud was practised on the Registrar in obtaining the registration of the Trade Mark and. therefore, the Registrar was a necessary party and for that reason also the reliefs of declaration and cancellation cannot be granted. On the other hand. Dr. Ghosh has urged that registration does not create a Trade Mark nor does it confer any right or title; nor affects the common law rights in any other manner; it merely records the fact that the person in whose name the registration stands is the proprietor of a common law right to the trade mark. The learned Counsel has further argued that Section 32 of the Trade and Merchandise Marks Act is declaratory about the substantive rights and if the infirmities referred to therein exist, then a declaration as to the invalidity of the mark should be from the very beginning and since no provision has been made in the for the gram of such a declaration, the Civil Court has the jurisdiction to grant a declaratory relief. Further, it is said that Section 35 of theprovides that in certain circumstances, the registration of a trade mark shall be deemed to have ceased on the date at which the use referred therein becomes well known and established and thus declares a substantive law as to when a trade mark shall be deemed to have ceased to have validity, but since such a declaration cannot be given u/s 56 of the in rectification proceedings, a decree for declaration can be granted by the Civil Court. It is, further, stated that in Dhulabhai and Others Vs. The State of Madhya Pradesh and Another, . the Honble Supreme Court held that even where a statute gives finality to the orders of the special tribunal, the jurisdiction of a Civil Court would not be haired, if the special tribunal provided for in the cannot give a relief which a Civil Court can normally give and since the relief claimed by the plaintiffs cannot be given by the tribunal u/s 56, the jurisdiction of the Civil Court is not excluded. Further, it is urged that the Civil Court can grant relief for temporary injunction which cannot be granted by the Tribunal under the. Dr. Ghosh has further argued that it appears from the decisions in (1882) 21 Ch D 752 and (1899) I QB 72 that if something illegal is being done then an injunction is readily granted. The further contention of the learned Counsel is that the Civil Court can grant damages which the Tribunal cannot grant. Thus, according to the learned Counsel, the Tribunal set up under the does not have the power to decide all questions about the rights and liabilities of the parties conferred by the. It is also said that the. provision for rectification in Section 56 is only an enabling provision which docs not compel a person to resort to the remedy provided therein. Further, the learned Counsel has argued that the provides for resort to rectification proceedings only in respect of one particular kind of suit, namely a suit for the infringement of the registered trade mark which means the one need not resort to rectification proceedings in a suit for passing off.

29. The object of the Trade and Merchandise Marks Act, 1958. as its preamble indicates, is to make provision for the registration and better protection of trade marks and for the prevention of the use of fraudulent marks on merchandise. Chapter II of the which consists of Sections 4 to 17, provides for the appointment of Registrar of the Trade Marks, the maintenance of the register of the Trade Marks and the conditions required to be fulfilled for registration. Section 9 says that a Trade Mark shall not be registered unless it contains or consists of at least one of the essential particulars mentioned therein. Section 11 says that a mark such as mentioned in any of the clauses thereof shall not be registered as a trade mark. Clause (a) thereof prohibits the registration of a mark, the use of which would be likely to deceive or cause confusion. Section 12 prohibits the registration of identical or deceptively similar trade marks and provides in clause (1) that save as provided in sub-section (3). no trade mark shall be registered in respect of any goods or description of goods which is identical with or deceptively similar to a trade mark which is already registered in the name of a different proprietor in respect of the same goods or description of goods. Chapter III provides the procedure for and duration of registration. Provision has been made for submission of an application for registration, withdrawal thereof, its advertisement, making of objection to the registration and disposal of the objections by the Registrar after considering the evidence and hearing the parties. Chapter IV deals with the effect of registration. Registration confers certain rights as stipulated in Section 28 in the following terms:

28. Rights conferred by registration.- (1) Subject to the other provisions of this Act, the registration of a trade mark in Part A or Part B of the register shall, if valid, give to the registered proprietor of the trade mark the exclusive right to the use of the trade mark in relation to the goods in respect of which the trade mark is registered and to obtain relief in respect of infringement of the trade mark in the manner provided by this Act.

(2) The exclusive right to the use of a trade mark given under sub-section (1) shall be subject to any conditions and limitations to which the registration is subject.

(3) Where two or more persons are registered proprietors of trade marks, which are identical with or nearly resemble each other, the exclusive right to the use of any of those trade marks shall not (except so far as their respective rights are subject to any conditions or limitations entered on the register) be deemed to have been acquired by any one of those persons as against any other of those persons merely by registration of the trade marks but each of those persons has otherwise the same rights as against other persons (not being registered users using by way of permitted use) as he would have if he were the sole registered proprietor.

Section 27 in clause (1) provides that no person shall be entitled to institute any proceeding to prevent, or to recover damages for, the infringement of an unregistered trade mark. Clause (2) says that nothing in this Act shall be deemed to affect rights of action against any person for passing off goods as the goods of another person or the remedies in respect thereof. Thus, Section 28 confers on the registered proprietor of a trade mark, the exclusive right to the use of the trade mark and Sec. 27 washes off the right of the proprietor of an unregistered trade mark for infringement of a trade mark which such proprietor had prior to the enactment of the first statute on the subject, i.e., The Trade Marks Act, 1940. The exclusive right to the use of the trade mark conferred upon the registered proprietor by Section 28 is subject to the other provisions of the and only if the registration is valid. This means that where provision has been made for the use of the registered trade mark by more than one proprietor or a provision has been made permitting the use of a trade mark by a prior user thereof, as in Sec. 33, the exclusive right to the use of the registered proprietor would be subject to such provision. As regards validity, Sec. 31(1) says that in all proceedings relating to a trade mark registered under the (including applications under S. 56), the original registration of the trade mark and of all subsequent assignments and transmissions of the trade mark shall be prima facie evidence of the validity thereof. The pre-sumption as to the validity of a registered trade mark provided in S. 31 becomes further strengthened by S. 32 where the registration has been for more than seven years.

Section 32 runs as under:

32. Registration to be conclusive as to validity after seven years.- Subject to the provisions of Sec. 35 and Sec. 46. in all legal proceedings relating to a trade mark registered in Part A of the register (including applications under S. 56). the original registration of the trade mark shall, after the expiration of seven years from the date of such registration, be taken to be valid in all respects unless it is proved -

(a) that the original registration was obtained by fraud; or

(b) that the trade mark was registered in contravention of the provisions of Sec. 11 or offends against the provisions of that section on the date of commencement of the proceedings; or

(c) that the trade mark was not. at the commencement of the proceedings, distinctive of the goods of the registered proprietor,

It is evident that the presumption under this section arises in all legal proceedings relating to a trade mark. It does not declare any substantive rights, as submitted by Dr. Ghosh.

30. Chapter V. consisting of Ss. 36 to 44. makes provision for assignment and transmission of a trade mark. Section 36 says that the person for the time being entered in the register as proprietor of a trade mark shall, subject to the provisions of the and to any rights appearing from the register to be vested in any other person have power to assign the trade mark and to give effectual receipts in consideration for such assignment. Section 37 says that notwithstanding anything in any law to the contrary, a registered trade mark shall, subject to the provisions of Chapter V, be assignable and transmissible, whether with or without the goodwill or business concerned and in respect either of all the goods in respect of which a trade mark is registered or of some only of those goods. Thus, Chapter V permits the assignment of a trade mark without the assignment of the goodwill. At common law. trade mark could not be assigned without the assignment of the goodwill or business. Chapter VI makes provision regarding the use of a trade mark and registered users. Chapter V[( makes provision for the rectification and correction of the register. Section 56 empowers the High Court or the Registrar to cancel or rectify the register. Clause (1) says that on application made in the prescribed manner to a High Court or to the Registrar by any person aggrieved, the Tribunal may make such order as it thinks fit for the cancelling or varying the registration of a trade mark on the ground of any contravention, or failure to observe a condition entered on the register in relation thereto. Clause (2) contemplates such an application by any person aggrieved by the absence or omission from the register of any entry, or by any entry made in the register without sufficient cause, or by any entry wrongly remaining on the register, or by any error or defect in any entry in the register and empowers the High Court or the Registrar to make such order for making, expunging or varying the entry as the Tribunal may think fit. The Tribunal which means the High Court or the Registrar has the power to decide any question that may be necessary or expedient to decide in connection with the rectification of the register. As per clause (4) the application has to be decided after giving an opportunity of being heard to the parties concerned. As per Sec. 2(l)(h) High Court means the High Court having jurisdiction under S. 3. Under S. 3, the High Court having jurisdiction under the means the High Court within the limits of whose appellate jurisdiction the office of the Trade Marks Registry referred to in each of the cases mentioned therein is situate. According to Sec. 2(1)(x) Tribunal means the Registrar or, as the case may be, the High Court before which the proceeding concerned is pending. Thus a proceeding for rectification cannot be brought before any High Court. The jurisdiction is confined only to that High Court within whose appellate jurisdiction the office of the Registrar is situated. Section 97 confers upon the Registrar all the powers of a Civil Court for the purposes of receiving evidence, administering oaths, enforcing the attendance of witnesses, compelling the discovery and production of documents and issuing commissions for the examination of witnesses, in all proceedings under the before the Registrar. Section 108 provides the procedure for application for rectification before a High Court. Under sub-section (2) of that section, even such application is to be heard by a single Judge of the High Court. Sub-sec. (3) provides for an appeal from the order made by a single Judge to a Bench of the High Court. As per sub-section (5), a certified copy of every order or judgment of the High Court has to be communicated to the Registrar and then the Registrar is to give effect to the order of the Court. Sub-section (2) of S. 109 provides for an appeal to the High Court from any order or decision of the Registrar under the or the rules made thereunder. Under sub-section (4), such an appeal is to be heard ordinarily by a single Judge of the High Court and where the appeal is so heard, a further appeal lies under sub-section (5) to a Bench of the High Court. Thus the confers on the Registrar ample powers to enable him to decide all questions that may arise in the rectification proceedings and to enable him to do so effectively, empowers him to administer oaths etc. The Act also makes adequate provisions for the hearing of the appeals by the High Court. In Sec. 105. the provides that 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 plaintiffs trade mark, whether registered or unregistered, shall be instituted in any court inferior to a District Court having jurisdiction to try the suit. Section 107(1) says that where in a suit for infringement of a registered trade mark the validity of the registration of the plaintiffs trade mark is questioned by the defendant or where in any such suit the defendant raises a defence under clause (d) of sub-section (1) of S. 30 and the plaintiff questions the validity of the registration of the defendants trade mark, the issue as to the validity of the registration of the trade mark concerned shall be determined only on an application for the rectification of the register, and notwithstanding anything contained in S. 46, sub-section (4) of S. 47 or S. 56, such application shall be made to the High Court and not to the Registrar. Section 87 makes similar provision for determination of the question as to the validity of registration arising in a criminal case under S. 78 or S. 79 of the. Section 112 gives statutory right to the Registrar to appear and be heard in any legal proceedings before a High Court in which the relief sought includes alteration or rectification of the register or in which any question relating to the practice of the Trade Marks Registry is raised.

31. I find it difficult to agree with the contention of Dr. Ghosh that S. 35 declares the substantive law as to the cessor of the validity of registration which entitles one in the circumstances mentioned in that section to a declaratory decree which can only be granted by a Civil Court. Section 35 runs as under :

35. Saving for words used as name or description of an article of substance. (l)The registration of a trade mark shall not be deemed to have become invalid by reason only of any use after the date of the registration of any word or words which the trade mark contains or of which it consists as the name or description of an article or substance :

Provided that, if it is proved either - -

(a) that there is. a well known and established use of the said word as the name or description of the article or substance by a person or persons carrying on a trade therein, not being used in relation to goods connected in the course of trade with the proprietor or a registered user of the trade mark or (in the case of a certification trade mark) goods certified by the proprietor; or

(b) that the article or substance was formerly manufactured under a patent, that a period of two years or more after the cesser of the patent has elapsed, and that the said work is the only practicable name or description of the article or substance; the provisions of sub-section (2) shall apply.

(2) Where the facts mentioned in clause (a) or clause (b) of the proviso to sub-section (1) are proved with respect to any words, then -

(a) for the purpose of any proceedings under

Section 56 -

(i) if the trade mark consists solely of such words, the registration of the trade mark, so far as regards registration in respect of the article or substance in question or of any goods of the same description, shall be deemed to be an entry wrongly remaining on the register;

(ii) if the trade mark contains such words and other matter, the Tribunal in deciding whether the trade mark shall remain on the register, so far as regards registration in respect of the article or substance in question and of any goods of the same description may, in case of a decision in favour of its remaining on the register, require as a condition thereof that the proprietor shall disclaim any exclusive right to the use in relation to that article or substance and any goods of the same description, or such words:

Provided that no disclaimer shall affect any rights of the proprietor of a trade mark except such as arise out of the registration of the trade mark in respect of which the disclaimer is made;

(b) for the purposes of any other legal proceeding relating to the trade mark,-

(i) if the trade mark consists solely of such words, all rights of the proprietor under this Act or any other law to the use of the trade mark in relation to the article or substance in question or to any goods of the same description; or

(ii) if the trade mark contains such words and other matter, all such rights of the proprietor to the use of such words, in such relation as aforesaid;

shall be deemed to have ceased on the date of which the use mentioned in clause (a) of the proviso to sub-section (1) first became well known and established, or at the expiration of the period of two years mentioned in CI. (b) of the said proviso.

32. On a perusal of S. 35, I find that it nowhere declares the cessor of validity of registration in any circumstances. On the contrary, sub-section (I) says that the registration shall not be deemed to have become invalid by reason only of any use after the date of the registration of any word or words which the trade mark contains or of which it consists as the name or description of an article or substance. As per sub-sec. (2)(a)(i) the registration of the trade mark shall in the circumstances mentioned therein be deemed to be an entry wrongly remaining on the register, for the purpose of any proceeding under S. 56. The provision that an entry shall be deemed to be a wrong entry in a particular type of proceeding means that there is no general declaration as to the invalidity of the entry. This becomes further clear from the provision of sub-section (2)(a)(ii) which provides that in the circumstances mentioned therein, the Tribunal may even allow the words mentioned in the proviso to sub-sec. (1) to remain on the register. Subsection (2)(b) states that for the purpose of any legal proceeding other than a proceeding under S. 56, relating to a trade mark, in the circumstances mentioned therein, the rights of the proprietor shall be deemed to have ceased as stated there. This provision also does not support the argument of the learned Counsel as to the declaration of any substantive right.

33. Nor do I see any force in the contention of Dr. Ghosh that the registration merely records the title of the proprietor in a trade mark. The Supreme Court observed in American Home Products Corporation Vs. Mac Laboratories Pvt. Ltd. and Another, :

36. When a person gets his trade mark registered, he acquires valuable rights by reason of such registration. Registration of his trade mark gives him the exclusive right to the use of the trade mark in connection with the goods in respect of which it is registered and if there is any invasion of this right by any other person using a mark which is the same or deceptively similar to his trade mark, he can protect his trade mark by an action for infringement in which he can obtain injunction, damages or an account of profits made by the other person. In such an action, the registration of a trade mark is prima facie evidence of its validity. After the expiry of seven years from the date of the registration a trade mark is to be valid in all respects except in the three cases set out in S. 32.

The proprietor of an unregistered trade mark whose mark is unauthorisedly used by another cannot, however, sue for the infringement of such trade mark. His only remedy lies in bringing a passing-off action, an inconvenient remedy as compared to an infringement action. In a passing-off action the plaintiff will have to prove that his mark has by user acquired such reputation as to become distinctive of the plaintiffs goods so that if it is used in relation to any goods of the kind dealt with by the plaintiff, it will be understood by the trade and public as meaning that the goods are the plaintiffs goods. In an infringement action, the plaintiff is not required to prove the reputation of his mark. Further, under S. 37 a registered mark is assignable and transmissible either with or without goodwill of the business concerned while under S. 38. an unregistered trade mark is not assignable or transmissible except in the three cases set out in S. 38(2).

34. The exclusive right to the use of the trade mark by the registered proprietor thereof is only subject to the provisions of the. Even a prior user cannot take away the right of the registered proprietor to use the said mark. Section 33 recognises the right of a prior user only to use a trade mark. Delhi High Court has observed in P.M. Diesels Private Limited Vs. Thukral Mechanical Works,

11. Section 33 undoubtedly recognises the right of a prior user of a trade mark. Because of the said provision the registered owner of the trade mark cannot restrain a prior user of the trade mark from using the said trade mark. Section 33 gives a right of user to the prior user of the trade mark, but it does not in any way take away the right of the registered proprietor from using the said trade mark. What the plaintiff wants by this application is that the registered owner of the trade mark should be restrained from enjoying its proprietary right in the said trade mark. Section 33 of thedoes not give any such right to the plaintiff. At best it would protect the right of the plaintiff to use the trade mark, if it can prose prior user, if the defendant wants to take any action against the plaintiff.

35. However, Dr. Ghosh has referred to Consolidated Foods Corporation Vs. Brandon and Company Private Ltd., , in support of his contention that the registration does not confer any right under the statute. That was a case concerning the disposal of opposition to an application for registration. In that connection, one of the points for consideration was when a person could be said to be the proprietor of a Trade Mark. It was observed at the end of paragraph 27 :

(27). Registration under the statute does not confer any new right to the mark claimed or any greater right than what already existed at common law and at equity without registration. It does, however, facilitate a remedy which may be enforced and obtained throughout the State and it established the record of facts affecting the right to the mark. Registration itself does not create a trade mark. The trade mark exists independently of the registration which merely affords further protection under the statute. Common law rights are left wholly unaffected. Priority in adoption and use of a trade mark is superior to priority in registration.

It would not be correct to say that registration does not create any new right nor would it be correct to say that registration never creates a trade mark. At common law, before a person could acquire a proprietary right in a Trade Mark, use of that mark for some time was essential. However, under S. 18 of the Trade and Merchandise Marks Act, 1958, an application for registration of a trade mark can be made even by a person who proposes to use it. The decision of the Supreme Court referred to above makes it clear that registration creates valuable rights. Therefore, to this extent, with respect, this decision may not be treated as laying good law.

36. Right to registration is not a pre-existing right. It is a statutory creation and the same statute that has created this valuable right, has also provided a very extensive machinery for the correction of any error in registration. Provision has been made for determination, in a rectification proceeding, of all questions which it may be necessary or expedient to decide. Extensive powers have been conferred on the Registrar to enable him to exercise his powers by S. 97. regarding receiving of evidence, administering oaths etc. Adequate provision has also been made for appeals. Legislative intent has been indicated that the questions as to validity should not be decided by a Civil Court or a Criminal Court by providing that even in proceedings which are pending before a Civil Court or a Criminal Court, such questions should be decided only in a rectification proceeding under S. 56. Section 107 provides that where in a suit for infringement of a registered trade mark, a question as to validity arises, such a question "shall be determined only on an application for the rectification of the register". The use of the word only emphasises that for rectification of the register no other proceeding is permissible and in such a case the application for rectification has to be made to the High Court and not the Registrar. Under S. 111 the civil proceedings have to be stayed to allow the question to be decided in the rectification proceedings. Where no such application is made for rectification within the time allowed by the court, the suit has to proceed as if the challenge to the validity has been abandoned. This further emphasises that the question as to validity of an entry in the register is contemplated by the to be decided only in rectification proceedings. Dr. Ghosh has, however, urged that since S. 105 contemplates three types of proceedings whereas S. 107 contemplates the decision as to validity of registration only in a suit for infringement of a registered trade mark, an inference follows that where a question arises as to validity in other kinds of proceedings, the determination of such a question would not be barred. However, I do not see any merit in this contention. The fact that reference in S. 107 has been made only of a suit for infringement of a registered trade mark implies that the legislature contemplated that, so far as civil proceedings are concerned, such a question can arise only in a suit for infringement. As pointed out by the Honble Supreme Court in Ruston and Hornsby Ltd. Vs. The Zamindara Engineering Co., , "the action for infringement is a statutory right. It is dependent upon the validity of the registration". It was further pointed out that in an infringement action the issue is as follows "Is the defendant using a mark which is the same as or which is a colourable imitation of the plaintiffs registered trade mark". In a passing off action the issue is stated to be: "Is the defendant selling goods so marked as to be designed or calculated to lead purchasers to believe that they are the plaintiffs goods" Similarly, in a criminal proceeding where the offence charged under S. 78 or 79 is in relation to a registered trade mark and the accused pleads the registration of the trade mark to be invalid and if the Magistrate is satisfied that such a defect is prima facie tenable, he is required by S. 87 to adjourn the proceedings for three months to enable the accused to file an application before the High Court for rectification of the register and if so filed such an application, further proceedings in the prosecution have to remain stayed till the disposal of the application for rectification and of the appeal, if any, therefrom; but if no such application is made by the accused the Magistrate is to proceed with the case, as if the registration were valid. Thus even in a criminal case, where the invalidity of a trade mark has been contemplated as a possible defence, the legislature has provided for the determination of such a question only in a rectification proceeding. It is inconceivable that even when the legislature has provided for the determination of the issue as to the validity of registration only in rectification proceedings where such an issue is to be one of the issues in a Civil or Criminal Court and until such issue is decided, the main case is to remain stayed, the legislature would have intended the Civil Court to be an alternative forum for determination of such issue in a suit for a declaration or injunction. Furthermore, under S. 112, in any legal proceedings before the High Court in which the relief sought includes alteration or rectification of the register or in which any question relating to the practice of trade marks registry is raised, the Registrar has the right to appear and be heard. This is in recognition of the fact that the question as to the validity of an entry in the register is not only adjudicatory in character, so far as the register is concerned, but also administrative. The provision takes into account the possible chaos in the administrative functioning of the Registrar, if the question as to alteration or rectification of the register or any question relating to the practice of the trade mark registry is decided without giving an opportunity of being heard to the Registrar. In the absence of the Registrar, the possibility of divergent views on the same point of law cannot be ruled out and, if it so happens, the functioning of the Office of the Registrar may be adversely affected. The reason that only one High Court has been conferred upon the jurisdiction in respect of the territorial jurisdiction of a particular Registrar should be three-fold : one, to avoid the inconvenience to the Registrar in attending a court far away from his headquarters; secondly, to avoid the possibility of a conflict of decisions which may arise by the same point being decided by different courts; and, thirdly, the need for assurance that the register of trade marks reflects at all times, the true position, which it may not be possible to do, if such a question may be raised in a suit for declaration or injunction in any one or more of the hundreds of the districts in the country, without hearing the Registrar. All this indicates the legislative intendment that the question as to the validity of any entry is to be decided only in rectification proceedings.

37. Thus, the remedy provided in S. 56 for cancellation or rectification of a wrong entry is an adequate remedy which a Civil Court would ordinarily give in such a case. The argument of Dr. Ghosh that a decree for a declaration would be more appropriate because such a decree may declare an entry to be invalid from the very day on which the entry was made does not have merit. An adequate remedy does not mean the exact remedy which a plaintiff may seek to claim. In the present case, there seems to be no valid reason why the plaintiffs should need a declaration from the date of the registration, i.e., from retrospective effect. The exclusive right of user conferred by S. 28 upon the proprietor of a registered trade mark cannot possibly be obliterated retrospectively. If it has been exercised in the past that is an accomplished fact. Rectification itself means the declaration and something more, that is. the consequential relief in the physical act of correction in the register. If a plaintiff needs declaration without the consequence of correction, it only means that circumvention of law must be the reason. No plaintiff can be allowed to frustrate the legislative scheme by clever drafting. Rectification is the normal remedy for correction of an entry. Further, the Supreme Court has declared in The Premier Automobiles Ltd. Vs. Kamlekar Shantaram Wadke of Bombay and Others, , the law in clear terms that where the statute permits only a particular type of relief, even if that relief is made subject to certain conditions, which it may not even be possible for the plaintiff to lull ill the prescribed relief subject to the prescribed conditions before the prescribed forum, is to be deemed to have been intended by the legislature This authority will be discussed in mote details in the later part of this judgment. The fact that there is no provision for granting a temporary injunction by the Registrar or the Tribunal in rectification proceedings is also of no consequence because if the legislature intended that temporary injunction should not be granted in such type of cases, the adequate remedy does not become inadequate. The real question is as to the intendment of the legislature and the clear intent of the legislature, as it appears on a close examination of the legislative scheme is that all questions relating to the validity of an entry should be decided in rectification proceedings under S. 56. It needs be emphasised that as regards provision of a remedy, the statute has made a distinction between the right that flows from registration and the right against wrong registration or an incorrect entry. For the enforcement of the former, remedy of civil suit before the Civil Court, not inferior to a District Court has been envisaged, but for the latter, the statute has prescribed a special forum and a special type of proceeding, which may only be resorted to.

38. In this connection, reference may be made to a few decisions of the Supreme Court. The question as to the exclusion of the jurisdiction of the Civil Court was considered by the Constitution Bench in Dhulabhai and Others Vs. The State of Madhya Pradesh and Another, . In that judgment the observations of Willcs, J. in Wolverhampton New Waterworks Co. v. Hawkesford, (1859) 6 CB (NS) 336, were extracted with approval as under:

One is where there was a liability existing at common law, and that liability is affirmed by a statute which gives a special and peculiar form of remedy different from the remedy which existed at common law; there, unless the statute contains words which expressly or by necessary implications exclude the common law remedy the party suing has his election to pursue either that or the statutory remedy. The second class of case is. where the statute gives the right to sue merely, but provides no particular form of remedy; there, the party can only proceed by action at common law. But there is a third class, viz., where a liability not existing at common law is created by a statute which at the same time gives a special and particular remedy for enforcing it. The remedy provided by the statute must be followed and it is not competent to the party to pursue the course applicable to cases of the second class.

Seven principles, were laid down in that case and the second of them which is relevant for the present case is as under:

(2) Where there is an express bar of the jurisdiction of the court, an examination of the schemes of the particular Act to find the adequacy or the sufficiency of the remedies provided may be relevant but is not decisive to sustain the jurisdiction of the Civil Court.

Where there is no express exclusion the examination of the remedies and the scheme of the particular Act to find out the intendment becomes necessary and the result of the inquiry may be decisive. In the latter case it is necessary to sec if the statute creates a special right or a liability and provides for the determination of the right or liability and further lays down that all questions about the said right and liability shall be determined by the tribunals so constituted, and whether remedies normally associated with actions in civil courts are prescribed by the said statute or not.

The other decision is The Premier Automobiles Ltd. Vs. Kamlekar Shantaram Wadke of Bombay and Others, . This case answers several points argued by Dr. Ghosh. In view of its importance for the present case, this authority needs to be examined in details. In that case, if the appellant company were three groups of workmen, first those who were members of the Sabha Union to which belonged respondents Nos. I and 2 who instituted the suit, second those who were members of the Association Union which was recognised by the company after derecognition of Sabha Union and the third group being workmen who were members of neither union. An incentive scheme was introduced and agreements entered into between the company and the Sabha Union the last being on December 31,1966. After the Association Union was recognised, the strength of the employees was increased upsetting the incentive scheme. The arrangement arrived at between the Association Union and the company was disliked by the Sabha Union. A definite settlement was arrived between the Sabha Union and the company on January 9, 1971, The Sabha Union fell aggrieved by the new agreement under the incentive scheme. So two members of the Sabha Union instituted their plaint in the City Civil Court at Bombay seeking permission of the Court to institute a suit in a representative capacity under Order 1, Rule 8. C.P.C. representing all the three groups of workmen. The plaintiffs chiefly based their claim on the memorandum of settlement dated December 31, 1966 which on being acted upon had become a condition of service not only of the members of the Sabha Union but also of others who were not its members. Their assertion was that the other settlement arrived at between the company and the Association Union under S. 18(1) of the Industrial Disputes Act. 1947 was not binding on those workmen who were not its members. They attacked the second agreement as having been arrived at without following the mandatory requirement of S. 9A of the the first relief claimed in the suit was that the settlement dated January 9, 1971 was not binding on the plaintiffs and other concerned daily-rated and monthly-rated workmen who were not members of the Association Union. The second relief was to ask for a decree of permanent injunction to restrain the appellant from enforcing or implementing the terms of the impugned settlement dated January 9, 1971. The appellant company and the other defendant-respondents contested the suit and asserted that all the workmen had impliedly accepted and acted upon the new settlement. They challenged the jurisdiction of the civil court to entertain the suit in relation to the dispute which was an industrial dispute and further asserted that in any view of the matter no decree for permanent injunction could be made. It was held that the object of the Industrial Disputes Act, 1947 is to make provision for the investigation and settlement of industrial disputes, which means adjudication of such disputes also. The Act envisages collective bargaining, contracts between union representing the workmen and the management, a matter which is outside the realm of the common law or the Indian law of contract. Under the different kinds of authorities having very varied and extensive powers in the matter of settlement and adjudication of industrial disputes have been constituted, and the powers of the authorities deciding industrial disputes under the were extensive. Paragraph 9 reads as under :

9. It would thus be seen that through the intervention of the appropriate government, of course not directly, a very extensive machinery has been provided for settlement and adjudication of industrial disputes. But since an individual aggrieved cannot approach the Tribunal or the Labour Court directly for the redress of his grievance without the intervention of the government, it is legitimate to take the view that the remedy provided under the is not such as to completely oust the jurisdiction of the civil court for trial of industrial disputes. If the dispute is not an industrial dispute within the meaning of S. 2(k) or within the meaning of S. 2A of the, it is obvious that there is no provision for adjudication of such disputes under the. Civil Courts will be the proper forum. But where the industrial dispute is for the purpose of enforcing any tight, obligation or liability under the general law or the common law and not a right, obligation or liability created under the. then alternative forums are there giving an election to the suitor to choose his remedy of either moving the machinery under the or to approach the civil court, his plain that he cant have both. He has to choose the one or the other. But we shall presently show that the civil court will have no jurisdiction to try and adjudicate upon an industrial dispute if it concerned enforcement of certain right or liability created only under the. In that event civil court will have no jurisdiction even to grant a decree of injunction to prevent the threatened injury on account of the alleged breach of contract if the contract is one which is recognized by and enforceable under the alone.

Thus it was pointed out that the civil court does not have the jurisdiction to try and adjudicate upon a dispute, if it concerns the enforcement of certain right or liability created only under a statute. In the present case, the rights conferred by registration constituted the liability on others who might feel aggrieved from such rights and, therefore, the ratio of this authority supports the view that the civil court docs not have the jurisdiction to decide any question as to the validity of the registration. Further, it is significant to note that under the Industrial Disputes Act, an aggrieved individual cannot approach the Tribunal or the Civil Court directly for the redress of his grievances without the intervention of the government and, therefore, it was contended that the remedy provided under the was a misnomer, being no remedy in the eye of law, and even if the civil court had no jurisdiction to entertain a suit for enforcement of a right created under that Act, Courts in India could make an order or decree for injunction to prevent the threatened injury on breach of the right. These contentions were rejected by the Court with the following observations:

14. But surely for the enforcement of a right or an obligation under the the remedy provided uno fiatu in it is the exclusive remedy. The legislature in its wisdom did not think it fit and proper to provide a very easy and smooth remedy for enforcement of the rights and obligations created under the. Persons wishing the enjoyment of such rights and wanting its enforcement must rest content to secure the remedy provided by the. The possibility that the Government may not ultimately refer an industrial dispute under S. 10 on the ground of expediency is not a relevant consideration in this regard.

Again it was observed :

15. There are no different systems of civil courts for enforcement of different kinds of rights. In the instant ease taking cognizance of a suit in relation to an industrial dispute for the enforcement of any kind of right is not expressly haired. But if it relates to the enforcement of a right created under the, as stated above, by necessary intendment, the jurisdiction of the Civil Courts is barred. That being so, in India, it is barred for all purposes, except in regard to matters which will be alluded to hereinafter. It will bear repetition to say that the jurisdiction of the Civil Court in India is limited to cases in which there is a right at law, that is to say. a right to he pursued in such Court.

39. Thus the fact that the special tribunals created under the enactment does not have the power to grant the relief of declaration or permanent or temporary injunction or damages is of no relevance. It is further clear that where a dispute relates to the enforcement of a right created by an enactment and that enactment also provides for an adequate remedy for its enforcement and further lays down that all questions about the said right shall be determined by the tribunals so constituted, the jurisdiction of the civil court would be barred.

This is again emphasised by the Supreme Court in Raja Ram Kumar Bhargava (Dead) by Lrs. Vs. Union of India (UOI),

9. Generally speaking, the broad guiding considerations are that wherever a right, not pre-existing in common-law, is created by a statute and that statute itself provided a machinery for the enforcement of the right, both the right and the remedy having been created uno flatu and a finality is intended to the result of the statutory proceedings, then, even in the absence of an exclusionary provision the civil courts jurisdiction is impliedly barred. If, however, a right pre-existing in common law is recognised by the statute and a new statutory remedy for its enforcement provided, without expressly excluding the civil courts jurisdiction, then both the common law and the statutory remedies might become concurrent remedies leaving open an element of election to the persons of inherence.

40. Dr. Ghosh has. however, referred to Raja Jagdish Pratap Sahi Vs. State of Uttar Pradesh, , in support of his contention that the civil courts jurisdiction is not barred. In that case, the State of Uttar Pradesh filed a suit against the appellant for the recovery of a sum of money on account of two instalments due from him under the U.P. Agricultural income tax Act. The appellant was assessed to Agricultural income tax in a particular sum of money and was directed to pay the same in four instalments. The first instalment was recovered from him with penalty. Notice to pay the second and third instalments was served. This amount was not paid and eventually the State of U.P. filed a suit for the amount not recovered. The appellant pleaded that the only remedy open to the State was that permitted under S. 32(2) of the, and that no regular suit was maintainable. The said provision provided for the recovery of the amount so assessed, as if it were an arrear of land revenue. It was held that after an assessment is made upon the assessee quantifying the tax due from him and a demand for the payment thereof is issued within the period specified therein, it creates a debt payable by the assessee in favour of the State. Further, it was said that it is well established that once a debt is created, the State has the right to recover it by any of the modes open to it under the general law, unless as a matter of policy only a specific mode to the exclusion of any other is prescribed by the law. Further, it was stated that no such prohibition was enacted in S. 32 of the. It was held that on principle as well as on the consistent view of the High Courts, it is beyond doubt that where a taxing statute provides for a summary mode of recovery and is not exhaustive, it will be open to the State to have recourse to any other mode open to it under the general law. Thus the jurisdiction of the Civil Court was upheld. However, this was so because after the demand, the amount was held to be a debt for which no exclusion of the Civil Courts jurisdiction could be implied and as such the right to be enforced in the civil court was such as not created under the special statute. Thus, this decision does not support the contention of Dr. Ghosh.

41. The view that the validity of a registered trade mark can be challenged only in rectification proceedings gets further support from the judgment in P.M. Diesels Private Limited Vs. Thukral Mechanical Works, (Para 13):

Reading the two provisions together, namely, S. 28(1) and S. 31(1), the implication would be that as long as a trade mark stands registered in the name of a proprietor, the said registration shall be deemed to be valid and the registered proprietor would have an exclusive right to use the said trade mark. If the registration is cancelled by an action being taken u/S. 56 of the Trade and Merchandise Marks Act, then the protection and right afforded under S. 28(1) read with S. 31(1) would no longer be available, but till the Register of Trade Mark is corrected and the name of a person holding a trade mark is deleted, that person who is shown as the proprietor of the. registered trade mark would continue to have all the rights and privileges which are conferred by the on the registered owner of the trade mark.

Similar observation was made by the Madras High Court in Aravind Laboratories Vs. V.A. Samy Chemical Works, , after referring to Ss. 28, 31 and 32 of the in the following terms:

22. Considering the above provisions of the Trade and Merchandise Marks Act, 1958, we have to take it that the registration in favour of the plaintiff which is more than 7 years old is valid unless the defendant takes steps for rectification on the ground of fraud....

42. The result is that, so far as the reliefs of declaration and cancellation of the trade mark are concerned, the jurisdiction of the civil court is barred by S. 56 of the Trade and Merchandise Marks, Act 1958. As to the reliefs of the declaration about the use of the trade mark and the perpetual injunction, the civil courts jurisdiction is barred by S. 28 of that Act.

43. Now is for consideration the argument advanced by Mr. Desai that the judgment of the learned District Judge is vitiated by illegality since it does not consider the relevant law and the arguments advanced on behalf of ITC, refers to various authorities as laying down law which was not laid down by them and is based on no intelligible reasons, the so called reasons being a mere pretence of reasons, and is. therefore, no judgment in the eye of law.

44. As observed by the Honble Supreme Court in Smt. Swaran Lata Ghosh Vs. H.K. Banerjee and Others, , "Trial of a civil dispute in Court is intended to achieve, according to law and the procedure of the Court, a judicial determination between the contesting parties of the matter in controversy", and "adjudication by a reasoned judgment of the dispute upon a finding on the facts in controversy and application of the law to the facts found, are essential attributes of a judicial trial. In a judicial trial the Judge not only must reach a conclusion which he regards as just, but, unless otherwise permitted, by the practice of the Court or by law, he must record the ultimate mental process leading from the dispute to its solution. A judicial determination of a disputed claim where substantial questions of law or fact arise is satisfactorily reached, only if it be supported by the most cogent reasons that suggest themselves to the Judge; a mere order deciding the matter in dispute not supported by reasons is no judgment at all. Recording of reasons in support of a decision of a disputed claim serves more purposes than one. It is intended to ensure that the decision is not the result of whim or fancy, but of a judicial approach to the matter in contest : it is also intended to ensure adjudication of the matter according to law and the procedure established by law. A party to the dispute is ordinarily entitled to know the grounds on which the Court has decided against him, and more so, when the judgment is subject to appeal" or revision. The appellate or a revision Court "will then have adequate material on which it may determine whether the facts are properly ascertained, the law has been correctly applied and the resultant decision is just."

45. Mr. Desai went through a major portion of the impugned judgment making scathing comments to make his point. After a careful consideration of the entire matter I find myself with no choice except to agree with him. As regards the cause of action of deceit, the learned District Judge has referred to the arguments advanced by both the parties. He has referred to the fact that reliance was placed on behalf of ITC on Halsbury (4th Edition) vol. 31 para 1091 at page 64, Ramaswamy Iyers Law of Torts (8th Edition) page 2131, Salmond and Heusion on the law of Torts (19th Edition) at page 434. But none of these authorities have been considered in the impugned judgment and no decision has been given as to whether the plaint discloses cause of action of deceit. This, he has done by observing that the suit is not for deceit alone as the plaintiffs claim injunction to prevent the confusion by the user of the marks complained of. As mentioned earlier, one of the causes of action pleaded by the plaintiffs is deceit and the reason given in the judgment for not giving any decision on that point is not at all intelligible as the reason given is in reality no reason.

46. As regards the cause of action of passing off, it is staled that such an action is permissible in view of S. 27(2) of the Trade and Merchandise Marks Act, 1958 even against a registered proprietor of a trade mark. Note is made of the argument advanced by ITC that it is only the proprietor of a trade mark whose goodwill or business suffers or is threatened to suffer by an act of the defendant in passing off his goods as the goods of the plaintiff, that can file such a suit. Undoubtedly, the argument is substantial and has found favour with this Court; but according to the learned Judge, it did not have the merit even of being considered. It was rejected by being characterised as an extreme contention wholly untenable in law. The question for consideration before the learned District Judge was not whether such an action is available against the registered proprietor of a trade mark, because, admittedly, it was available, but whether such an action falling in the realm of private law was available to persons who merely claim to be confused and have no proprietary interest in the business or goodwill of the two foreign companies that allegedly own the trade mark in question. To label a contention as extreme and untenable" is certainly not to furnish a reason; and rejection of a vital argument without any reason certainly vitiates the judgment.

47. The judgment further states;

33. Under the common law and the Law of Torts and also under the law of Trade Marks it has been held that no one has a right to deceive or confuse the public. When the public is liable to be confused or deceived by a particular Trade Mark then obviously the right belongs to the public to file a suit for injunction in order to prevent the user of the Mark which causes confusion or deception. In a number of cases, such as, in AIR 1957 Bom 702 and also in cases referred to in Narayanans book on Trade Mark Page 235, 296 and 409 and in Venkateswarans book on Trade Marks page 629, the Courts have consistently held the interest of the public is paramount in considering whether the use of the Mark should be permitted or not. In F. Hoffmann-la Roche and Co. Ltd. Vs. Geoffrey Manner and Co. Pvt. Ltd., it is held that the unwary customers or member of the public should be protected from being confused or deceived, and in AIR 1980 Del 125 [LQ/DelHC/1979/206] at pp. 129-30, the court held that the unwary customers should be protected, If he is not so protected then it would amount to unfair trading.

In F. Hoffmann-la Roche and Co. Ltd. Vs. Geoffrey Manner and Co. Pvt. Ltd., , the matter came before the Honble Supreme Court from rectification proceedings and in that connection provisions of Ss. 11 and 12(1) inter alia were for consideration. In Dyer Meakin Breweries v. Scotch Whisky Assocn., AIR 1980 Del 125 [LQ/DelHC/1979/206] , proceedings had arisen as a result of the dismissal of the opposition to the application for registration of a trade mark. It is a complete mis-statment in the judgment of the learned Trial Court that in F. Hoffmann-la Roche and Co. Ltd. Vs. Geoffrey Manner and Co. Pvt. Ltd., , it was held that unwary customers or members of the public should be protected from being confused or deceived and in AIR 1980 Del 125 [LQ/DelHC/1979/206] at pp. 129-30 the Court held that the unwary customers should be protected. There was no occasion in these cases for the Court to consider whether any member of the public could bring a sun for injunction against confusion or deception, and no such question was considered in either of these cases. In AIR 1957 Bom 296 and so there is no page bearing No. 702; the name of the case is not mentioned in the impugned judgment. The statement in the judgment that the Courts have consistently held the interest of the public as paramount in considering whether the use of the mark should be permitted or not so as to imply that a suit of the kind, such as the present, is maintainable is again an incorrect statement. The question as to whether a particular mark which is sought to be registered or which has already been registered has caused or is likely to cause deception or confusion is relevant for a proceeding prescribed in the. Again, the statement that under the common law and the law of Torts and also under the law of trade marks it has been held that no one has the right to deceive or confuse the public with the implication that the suit for a declaration or injunction is permissible, is again a mis-statement. It is surprising that notwithstanding such a view is said to have been held, no authorities holding such a view have been cited. Once it is found that there is a gross mis-statement about the legal position, the structure erected thereon in the expression that "when the public is liable to be deceived or confused by a particular trade mark then the right belongs to the public to file a suit for injunction to prevent the user of the mark which causes deception or confusion" automatically collapses, there being no basis for such a statement. No authority has been quoted to support such a view: Thus, all these observations have the characteristics of an ipse dixit and the reasons given in the judgment only support the argument of Mr. Desai, that the reasons are, in fact, no reasons, they being a mere pretence of reasons. Paragraph 34 of the judgment, states as under:

34. In AIR 1981 SC 344 [LQ/SC/1980/458] , S.P. Gupta Vs. President of India and Others, and D.S. Nakara and Others Vs. Union of India (UOI), the Honble Supreme Court have reiterated that whatever injury or harm is caused to the public then any member of the public have the right to institute an action for judicial redress.

Again in para 35, it is stated that "in D.S. Nakara and Others Vs. Union of India (UOI), , the Honble Supreme Court has reiterated the principle that any member of the public can maintain an action for judicial redress of injury caused to the public". However, in my view these judgments do not lay down the law as stated in the impugned judgment. These decisions deal with the question as to locus standi of the petitioners in a writ petition. While exercising writ jurisdiction discretion of the Supreme Court or the High Court as to procedure is not fettered by any procedural rules. But as observed in Ram Bahadur Rai Vs. The State of Bihar and Others, in para 15" the jurisdiction of the Civil Court in India is limited to cases in which there is a right at law, that is to say, a right to be pursued in such Court." The procedure which the Civil Court has to follow is prescribed in the Code of Civil Procedure. The Code also prescribes the procedure which has to be followed in cases where numerous persons have common interest. In S.P. Gupta Vs. President of India and Others, , it was pointed out that the traditional rule in regard to locus standi is that judicial redress is available only to a person who has suffered a legal injury by reason of violation of his legal right or legally protected interest by the impugned action of the State or a public authority or any other person or who is likely to suffer a legal injury by reason of threatened violation of his legal right or legally protected interest by any such action. The basis of entitlement to judicial redress is personal injury to property, body, mind or reputation arising from violation, actual or threatened, of the legal right or legally protected interest of the person seeking such redress. It was further observed that the rule in regard to locus standi postulates a right-duty pattern which is commonly to be found in private law litigation. It was clarified that though this rule is narrow and rigid, yet the Courts have over the years evolved a few exceptions to it. Then in paragraph 15 of the judgment three such exceptions have been discussed. But neither of them has any application to the present case. Then a mention is made about another exception in para 17, where it is stated that it may now be taken as well established that where a legal wrong or a legal injury is caused to a person or to a determinate class of persons by reason of violation of any constitutional or legal right or any burden is imposed in contravention of any constitutional or legal provision or without authority of law or any such legal wrong or legal injury or legal burden is threatened and such person or determinate class of persons is by reason of poverty, helplessness or disability or socially or economically disadvantaged position unable to approach the Court for relief, any member of the public can maintain an application for an appropriate direction, order or writ in the High Court under Art. 226 and in case of breach of any fundamental right of such person or determinate class of persons, in the Supreme Court under Art. 32 seeking judicial redress for the legal wrong or injury caused to such person or determinate class of persons. In such a case, it was pointed out, the Court will not insist on a regular writ petition to he filed by the public spirited individual espousing their cause and seeking relief for them. It was emphasised that an individual who moves the Court for judicial redress in cases of this kind must be acting bona fide with a view to vindicating the cause of justice and if he is acting for personal gain or private profit or out of political motivation or other oblique consideration, the Court should not allow itself to be activised at the instance of such person and must reject his application at the threshold. After dealing with the question of locus standi in the cases where there is a specific legal injury either to the applicant or to some other person or persons for whose benefit the action is brought arising from violation of some constitutional or legal right or legally protected interest, it was pointed out in para 18, that there may be cases where the State or a public authority may act in violation of a constitutional or statutory obligation or fail to carry out such obligation, resulting in injury to public interest or what may conveniently be termed as public injury as distinguished from private injury. Then it was pointed out that the view has, therefore, been taken by the Courts in many decisions that whenever there is a public wrong or public injury caused by an act or omission of the State or a public authority which is contrary to the Constitution or the law. any member of the public acting bona fide and having sufficient interest can maintain an action for redressal of such public wrong or public injury. Further, it was pointed out in para 23 that it is also necessary for the court to bear in mind that there is a vital distinction between locus standi and justiciability and it is not every default on the part of the State or a public authority that is justiciable. Thereafter, note has been taken in para 24 of the cases which may arise where there is undoubtedly public injury by the act or omission of the State or a public authority hut such act or omission also causes a specific legal injury to an individual or to a specific class or group of individuals. It was held that in such cases, a member of the public having sufficient interest can certainly maintain an action challenging the legality of such act or omission, but if the person or specific class or group of persons who are primarily injured as a result of such act or omission, do not wish to claim any relief and accept such act or omission willingly and without protest, the member of the public who complains of a secondary public injury cannot maintain the action, for the effect of entertaining the action at the instance of such member of the public would be to foist a relief on the person or specific class or group of persons primarily injured, which they do not want.

48. Thus for several reasons the statement in the impugned judgment as to the law having being laid down in S. P. Guptascase(AIR 1985 SC 149) is misleading.

(i) The injury for which any member of the public can maintain an action should be public injury resulting from violation of a constitutional or statutory obligation or from a failure to carry out such obligation. There is a vital distinction between locus standi and justiciability and it is not every default on the part of the State or public authority that is justiciable. In the present case, there is no violation of a constitutional or statutory obligation which calls for decision. As pointed out earlier, violation of Ss. 11 and 12 of the Trade and Merchandise Marks Act is relevant for the question as to whether or not a particular mark is registrable and these sections do not confer any right in general against confusion.

(ii) Public interest litigation is contemplated in the exercise of writ jurisdiction under Art. 32 or 226 and not in a suit.

(iii) Public interest litigation is contemplated against the State or a public authority. Here the claim is made against a company which is neither State nor a public authority.

(iv) It has been emphasised that in such cases only a person having sufficient interest has to be accorded standing. To say that it was held that any member of the public has the right to institute and action is incorrect.

(v) It has been clearly laid down that in cases where there is undoubtedly public injury by an act or omission of the State or a public authority and such act or omission also causes a specific legal injury to an individual or to a specific class or group of individuals and that person or specific class or group of persons who are primarily injured as a result of such act or omission do not wish to claim any relief and accept such act or omission willingly or without protest, a member of the public who complains of a secondary public injury cannot maintain the action. In the present case even assuming that any public injury has been caused, the specific legal injury has been also caused to the two foreign companies whose goodwill or business has been, or is likely to be, injured and who thus would be the persons that would be primarily injured, and since these companies have not been impleaded, certainly no legal proceeding can be instituted by any member of the public.

49. This authority thus, instead, of laying down the law as stated by the learned District Judge in support of the case of the plaintiffs, lays down the law to the contrary with the result that such a suit could not be brought by any member of the public.

50. In Fertilizer Corpn. Kamagar Union v. Union of India, AIR 1981 SC 344 [LQ/SC/1980/458] , the petitioners challenged the legality of the sale of certain plants and equipment of the Sindri Fertilizer Factory. Petitioner No. 1 who was the union of the workers of the factory challenged along with some others, the sale on several grounds including the one that the sale had jeopardised the employment of 11000 odd workers. In paragraph 23 of the judgment, on the question of locus standi, it was pointed out that if public property is dissipated, it would require a strong argument to convince the Court that representative segments of the public or at least a section of the public which is directly interested and affected would have no right to complain of the infraction of public duties and obligations. Again, in paragraph 47, it was observed that a worker who had brought an action had an interest in the industry, In paragraph 48, it was stated that if a citizen is no more than a wayfarer or officious intervener without any interest or concern beyond what belongs to any one of the 660 million people of this country, the door of the court will not be ajar for him. But, if he belongs to an organisation which has special interest in the subject matter, if he has some concern deeper than that of a busybody, he cannot be told off at the gates, although whether the issue raised by him is justiciable may still remain to be considered. A perusal of this authority also shows that it is not any person of the public, but a person having substantial interest in the subject matter, that can bring an action. This authority also does not lay down the law, as stated in the impugned judgment.

51. In D.S. Nakara and Others Vs. Union of India (UOI), , the third petitioner was a society registered under the Societies Registration Act, 1860, formed to ventilate the legitimate public problems and consistent with its objective, it was espousing the cause of the pensioners all over the country. The locus standi of that petitioner was upheld relying on the majority decision in S.P. Gupta Vs. President of India and Others, that any member of the public having sufficient interest can maintain an action for judicial redress for public injury arising from breach of public duty or from violation of some provision of the Constitution or the law and seek enforcement of such public duty and observance of such constitutional or legal provision. This authority, thus also does not lay down that any member of the public can maintain an action for judicial redress of injury caused to the public.

52. There is nothing in these authorities to support the case of plaintiffs as regards the justiciability of the action brought by them. Smokers of cigarettes have no sufficient interest to challenge the use of the trade mark belonging to foreign companies, or its validity. Further, when the foreign companies who can permit the user of their trade mark or can assign the same to any one, do not want to claim any relief against the alleged user of their mark, no relief can be foisted on them. This is apart from other considerations which have already been discussed to show that the concept of what is known as public interest, litigation is not applicable to a civil suit and that too against a private person not being State or a public authority.

53. In para 43 of the impugned judgment, the learned District Judge has stated that S. 56 of the Trade and Merchandise Marks Act, is only an enabling provision and it does not bar the right of instituting civil suit and that is clear from the principles laid down in various cases, such as, Veruareddi Ramaraghava Reddy and Others Vs. Konduru Seshu Reddy and Others, and Supreme General Films Exchange Ltd. Vs. His Highness Maharaja Sir Brijnath Singhji Deo of Maihar and Others, . He has said that in both these cases, the Honble Supreme Court negatived the contention that if the conditions laid down in the Specific Relief Act were not fulfilled, then no declaration could be granted and held that the provisions of the Specific Relief Act were only enabling so that declaration could also be obtained outside the provisions of the said Act by filing a civil suit in civil court. Reliance on these authorities to hold the provision of S. 56 as enabling is entirely misplaced. In Veruareddi Ramaraghava Reddy and Others Vs. Konduru Seshu Reddy and Others, it was held that S. 42 of the Specific Relief Act, 1877 is not exhaustive of the cases in which a declaratory decree may be made and the Courts have power to grant such a decree independently of the requirements of this section. It was observed that the worshipper of a Hindu temple is entitled, in certain circumstances, to bring a suit for declaration that the alienation of the temple properties by the de jure Shebait is invalid and not binding upon the temple. If a Shebait has improperly alienated trust property a suit can be brought by any person interested for a declaration that such alienation is not binding upon the deity. It was held that a suit by the plaintiff-worshipper for a declaration that the compromise decree is not binding on the deity is maintainable as tailing outside the purview of S.42. Again in Supreme General Films Exchange Ltd. Vs. His Highness Maharaja Sir Brijnath Singhji Deo of Maihar and Others, , the Supreme Court held that S. 42 does not exhaust every kind of declaratory relief or circumscribe the jurisdiction of Courts to give declarations of right in appropriate cases falling outside S. 42. It was stated that the circumstances in which a declaratory decree under S.42 should be awarded is a matter of discretion depending upon the facts of each case. At the time, it was clarified that a complete stranger whose interest is not affected by anothers legal character or who has no interest in anothers property could not get a declaration u/S. 42 with reference to the legal character or the property involved. It is difficult to appreciate how the legal position that S. 42 of the Specific Relief Act, 1877 which corresponds to S. 34 of the Specific Relief Act. 1963 is not exhaustive, can be of any relevance to the question whether the remedy of rectification of an entry in the register of trade marks is only an enabling provision. The learned District Judge has not shown which principle is common to both the types of cases so as to make these authorities applicable to the present case. The fact that a declaration can be granted even outside the provisions of S. 34 of the Specific Relief Act, 1963 cannot possibly mean that in every case where declaration is sought, the plaint discloses cause of action, or such a suit cannot be barred by the provisions of a statute providing a special remedy. As pointed out by the Supreme Court in The State of Orissa Vs. Sudhansu Sekhar Misra and Others, in para 13 "A decision is only an authority for what it actually decides. What is of the essence in a decision is its ratio and not every observation found therein nor what logically follows from the various observations made in it

It is not a profitable task to extract a sentence here and there from a judgment and to build upon it." Following observations of Earl of Halsbury LC in Quinn v. Leathern, 1901 AC 495 were quoted with approval :

Now before discussing the case of Allen v. Flood (1898) AC 1 and what was decided therein, there are two observations of a general character which I wish to make, and one is to repeat what I have very often said before, that every judgment must be read as applicable to the particular facts proved, or assumed to be proved, since the generality of the expressions which may be found there are not intended to be expositions of the whole law, but governed and qualified by the particular facts of the case in which such expressions are to the found. The other is that a case is only an authority for what it actually decides. I entirely deny that it can be quoted for a proposition that may seem to follow logically from it. Such a mode of reasoning assumes that the law is necessarily a logical Code, whereas every lawyer must acknowledge that the law is not always logical at all...

54. In Para 44 of the impugned judgment, the learned District Judge has said that the Trade Marks Authorities have no power to grant interim injunction or damages pending the rectification proceedings under S. 56 of the Trade and Merchandise Marks Act and so on the basis of the principles laid down in Dhulabhai and Others Vs. The State of Madhya Pradesh and Another, , it has to be held that there would be no bar to the institution of a civil suit. In Dhulabhais case reported in Dhulabhai and Others Vs. The State of Madhya Pradesh and Another, referred earlier, the first principle regarding exclusion of jurisdiction of Civil Court laid down is : "Where the statute gives a finality to the orders of the special tribunals the civil courts jurisdiction must be held to be excluded if there is adequate remedy to do what the civil court would normally do in a suit." But. adequate remedy does not mean exactly the same remedy which the plaintiffs seek in the plaint. The observation in the impugned judgment that the suit is maintainable because in rectification proceedings, the relief of temporary injunction or damages cannot be granted is in total disregard of the ratio of the decision of the Supreme Court in The Premier Automobiles Ltd. Vs. Kamlekar Shantaram Wadke of Bombay and Others, discussed earlier. It is strange that though this authority was cited before him, he has not discussed how this is not applicable on this aspect of this case.

55. In paragraph 46 of the impugned judgment, it is stated that before the enactment of the Trade and Merchandise Marks Act. there was a pre-existing common law right to claim an injunction restraining the traders from deceiving or confusing the public and as these rights were not created by the and existed independently of it, it cannot be said that the Civil Courts jurisdiction is impliedly barred. In this connection, he has referred to the decision in The Premier Automobiles Ltd. Vs. Kamlekar Shantaram Wadke of Bombay and Others, . However, as stated earlier, there was no pre-existing common law right to claim an injunction restraining the traders from deceiving or confusing the public independently of an action of passing off which was available to a trader whose business or goodwill was injured or was likely to be injured on account of the act of the defendant in passing off his goods as the goods of the plaintiff. Thus, the reasoning is in the teeth of the established law.

56. The learned District Judge has stated in para 48 of the impugned judgment that merely because Trade and Merchandise Marks Act contains provision for cancellation or rectification of a Trade Mark, it does not mean that the Civil Court does not have the right to do so. In this connection he has referred to the decision in Raja Jagdish Pratap Sahi Vs. State of Uttar Pradesh, which has already been referred in the earlier part of this judgment and which has no application to the facts of the present case. He has also referred to Manohar Lal Chopra Vs. Rai Bahadur Rao Raja Seth Hiralal, , where it was held that the Courts have inherent jurisdiction to issue temporary injunction in circumstances which are not covered by the provisions of Order 39, CPC, if the Court is of opinion that the interests of justice require the issue of such interim injunction. The learned District Judge has said that even assuming that the Civil Court has no power to cancel or rectify a Trade Mark, there can be no doubt that the Civil Court has the power to grant declaration and injunction as prayed for, if the facts warrant the grant of such an injunction. The reasoning is entirely fallacious. The fact that the provisions of CPC are not exhaustive and for that reason the Civil Court is held to have jurisdiction to grant temporary injunction even in a case not covered by Order 39. CPC, has no relevance to the question as to whether the jurisdiction of the Civil Court is barred because of the provisions of the Trade and Merchandise Marks Act.

57. In paragraphs 36 and 37 of the impugned judgment, it is stated that as per the allegations made in the plaint, the trade mark of ITC suffers from the three infirmities mentioned in S. 32 of the Trade and Merchandise Marks Act, 1958 and so the contention of ITC that no suit for injunction or declaration could be filed because it has a registered trade mark cannot be accepted as correct. According to the learned District Judge, the allegations in the plaint have to be taken as true and it is, therefore, to be taken as if ITC does not have a valid trade mark. This reasoning is also fallacious because the question for decision here is not whether the trade mark is valid or not, but whether the validity of a trade mark can be challenged in a suit of the type that has been filed and also whether a declaration or an injunction can be granted in a civil suit to put in jeopardy the exclusive right of the registered proprietor to use the trade mark during the subsistence of the registration, but to this question the learned District Judge did not advert in the light of the relevant law and the arguments advanced before him.

58. In para 39 of the impugned judgment, the learned District Judge has said that his Court has received affidavits from various sections of the people from all over the country, most of whom are smokers of "Wills" brand cigarettes expressing their intention to participate in the proceedings in response to the notices published in the national newspapers under Order 1 Rule 8 read with S. 151 of the CPC and so unless an opportunity is given to these smokers to participate in the trial, it will not be possible for the Court to ascertain the truth and decide the matter once and for all when such serious allegations have been made against ITC. Further, he has observed that if "the doors of the Court are shut at the very initial stage of the proceedings, then the plaintiffs as well as the members of the public who have filed affidavits in this suit shall be deprived of their legal rights to prove their allegations as per the law and to prevent causation of further alleged confusions. and deceptions which according to them cannot be compensated in terms of money". The entire reasoning of this paragraph is against the basic principle of law that a plaint which does not disclose cause of action or which is barred by the provision of any law is liable to be rejected. If it is so, there is no occasion for holding a trial and so no occasion for any one participating in the trial and also no occasion for the court ascertaining the truth and deciding the matter. Filing of an affidavit by itself does not give any one any legal right to prove the allegations made therein. However; if the plaint discloses cause of action, it is nobodys case that the suit should be shot down (shut down) at the initial stage. All this is sheer indulgence in irrelevancies and this is no valid excuse for keeping away from the relevant point. The mere fact that serious allegations have been made is of no relevance, unless the allegations make out a cause of action. The provisions of Order I Rule 8, CPC do not provide to a plaintiff a cause of action where none exists. The provision presupposes that each one of the numerious persons by himself has a right to sue and if a person has himself no right to sue, he cannot be permitted to sue on behalf of others who suffer from the same disability.

59. While disposing of a revision petition, it is necessary for the High Court to consider whether the impugned order suffers from any juridictional error, which includes consideration of the question whether the decision was reached judicially add not arbitrarily. In the present case. I have no reason to differ from Mr. Desai that the impugned judgment is vitiated by illegality as it does not consider the relevant law and the arguments advanced on behalf of ITC, refer to various authorities as laying down law which is not laid down by them, is based on no intelligible reasons, the so-called reasons being a mere pretence of reasons with the result that the judgment is not a judgment in the eye of law.

60. As a result of the above discussion, the plaintiffs have no cause of action for the relief of declaration of the registered trade mark in favour of ITC as void and non est in the eye of law, and also its cancellation. Since the validity of the trade mark can be challenged only in rectification proceedings under S. 56 of the Trade and Merchandise Marks Act, 1958, so long as the trade mark stands registered in the name of ITC, it has the exclusive right to use the mark as per the provisions of S. 28 of the Trade and Merchandise Marks Act, 1958. For this reason and also because the plaintiffs have not been able to show any other cause for the reliefs of declaration and perpetual injunction in respect of its user, they have no cause of action for these reliefs as well. So, the plaint is liable to be rejected.

61. As regards costs, the general rule is that the costs should follow the event. The object of awarding costs is to indemnify a party against the expense of successfully vindicating his rights in Court. The quantum of costs that the Court awards has relation to the valuation of the suit. In the present case, the plaintiffs and ITC secured the services of more than one lawyer from outside, besides local counsel. Expenses in terms of fees, transport, boarding and lodging must be so enormous that the costs which the Court may allow as per the usual practice, may look to be illusory, for the recovery of which the successful party like ITC who has no office in Sikkim and who may have to again engage a lawyer from outside, may have to incur an expense which may well exceed the amount of the costs that may be awarded. The purpose of awarding costs is to compensate the winning party and not to penalise it. But, for the recovery of the costs that may be awarded, if the party that is awarded costs, has to incur an expense exceeding the amount of costs, it would amount, in reality, to the imposition of a penalty though, in form, it may give a different appearance. A limited company, such as ITC may have no real option not to take any steps for the recovery of costs on account of the constraints of audit etc. Therefore, during arguments, the Court asked the learned counsel to advance arguments on the question as to whether the winning party would like to have an order of costs and, if so, what, they consider, would be a reasonable amount for quantification of counsel fee. Both the learned counsel expressed their desire to postpone the argument on this point, till the conclusion of the arguments on merit. But at the end of the arguments on merit, this point got somehow omitted to be argued, perhaps, because no party wanted to press for costs. Certificate of counsel fee was also not filed by either of them. In the circumstances, this is a fit case for making no order as to costs.