P.C.

1. This appeal is directed against the order of the learned Single Judge refusing to grant leave under Clause 14 of the Letters Patent. The suit, out of which this appeal has arisen, was filed by the appellant complaining of violation of copyright under Copyright Act, 1957 as also infringement of trademark and passing of. The appellant have their office at Mumbai and they carry on business within the jurisdiction of this Court. Respondent Nos. 1 to 3 are carrying business at Hyderabad and respondent No. 4 who is a printer is carrying business at Secunderabad. It is not in dispute that in regard to violation of copyright which the appellants/plaintiffs have alleged in the plaint, this Court has the jurisdiction in view of the provisions of section 62(2) of the Copyright Act which, unlike other enactments, gives right to a plaintiff to institute the suit within the local limits of whose jurisdiction, at the time of the institution of the suit, the plaintiff carries on business or personally works for gain.

2.In view of the claims in the plaint about the infringement of trademark and passing off the appellant filed an application under Clause 14 of the Letters Patent seeking leave from the Court to combine the cause of action relating to copyright and the cause of action relating to infringement and passing off. The leave has been declined by the learned Single Judge on the ground that if the leave is granted it would cause undue hardship to the respondents.

3.Mr. Divekar, learned Counsel appearing for respondents has raised a preliminary objection to the maintainability of the appeal on the ground that the impugned order cannot be said to be a judgment within the meaning of Clause 15 and therefore the appeal is not maintainable. He has relied upon the decision of the Supreme Court in Asrumati Debi v. Kumar Rupendra Deb Raikot, A.I.R 1953 S.C. 198. In that case only question involved was whether the order of transfer under Clause 13 of the Letters Patent satisfies the tests of a judgment as mentioned in Clause 15 of the Letters Patent. The Supreme Court while referring to Calcutta and Madras judgments refrained from giving any particular decision except that the Court held that the mere order of transfer under Clause 13 of the Letters Patent could not be said to be a judgment and was therefore not appealable. The Court pointed out that the order neither affected the merits of the controversy nor did it terminate or dispose of the suit. In this connection the Court observed as follows (at page 200):

"The judgment must be the final pronouncement which puts an end to the proceeding so far as the Court dealing with it is concerned. It certainly involves the determination of some right or liability, though it may not be necessary that there must be a decision on the merits........

We have indicated what the essential features of a "judgment" are according to both the Calcutta and Madras High Courts and all that we need to say is that in our opinion, an order under Clause 13 of the Letters Patent does not satisfy the tests of a "judgment" as formulated by either of these High Courts."

4.Relying upon the above decision Mr. Divekar contended that refusal to grant leave under Clause 14 does not involve determination of any right or liability inasmuch as the plaintiffs right to file suit is not taken away. It is also contended that the power to grant leave under Clause 14 is discretionary power and no appeal would lie against such discretionary order.

5.Mr. Shah, learned Counsel appearing for the appellants on the other hand, brought to our notice a number of judgments of this Court wherein appeal was entertained against the order refusing to grant leave under Clause 14. First judgment is in the case of Tukojirao Halkar v. Sowkabai, A.I.R. 1929 Bombay 100. He also referred to the judgments in the case of M/s. Arte Indiana v. M/s. P. Mittulaul Lalah & Sons, 1999 (4) Bom.C.R. 239 and an unreported judgment in Gold Seal Engineering Products Pvt. Ltd. and others v. Hindustan Manufacturers and others, Appeal No. 505 of 1992 decided on 10-6-1994 reported in 1992 (2) Bom.C.R. 321.

6.Mr. Shah next drew our attention to the Full Bench judgment of the Madras High Court in the case of T.V. Tuljaram Row v. M.K.R. V. Alagappa Chettiar, I.L.R. 1912 (35) Madras 1, which lays down the test of a "judgment" and which seems to have found favour with most of the High Courts in India and also the Supreme Court wherein Sir Arnold White, C.J., pointedly spelt out various tests and observed as thus:

".......The test seems to me to be not what is the form of the adjudication but what is its effect in the suit or proceeding in which it is made. If its effect, whatever its form may be, and whatever may be the nature of the application on which it is made, is to put an end to the suit or proceeding so far as the Court before which the suit or proceeding is pending is concerned, or if its effect, if it is not complied with, is to put an end to the suit or proceeding. I think the adjudication is a judgment within the meaning of the clause. An adjudication on an application which is nothing more than a step towards obtaining a final adjudication in the suit is not, in my opinion, a judgment within the meaning of the Letters Patent.

I think, too, an order on an independent proceeding which is ancillary to the suit (not instituted as a step towards judgment, but with a view to rendering the judgment effective if obtained) e.g. an order on an application for an interim injunction, or for the appointment of a Receiver is a judgment within the meaning of the Clause".

7.In Tuljaram Rows case it was also held that making of the order was a matter of discretion does not affect the appealability of the order. The learned C.J. observed that "this fact may be good reason for refusing to exercise the appellate jurisdiction, but, as it seems to me, it is no reason for holding that the appellate jurisdiction does not exist".

8.In Shah Babulal Khimji v. Jayaben D. Kania and another, 1983 (1) Bom.C.R. 37 : A.I.R. 1981 S.C. 1786 the Supreme Court upon a careful analysis of the decision of the Sir White, C.J., in Tuljaram Rows case observed

"We would like to adopt and approve of generally the tests laid down by Sir White, C.J., in Tuljaram Rows case which seems to have been followed by most of the High Courts".

It is clearly seen from the observation of White, C.J., that it is not the form of adjudication which is to be seen but its actual effect on the suit or proceeding. If, irrespective of the form of the suit or proceedings, the order impugned puts an end to the suit or proceeding it doubtless amounts to a judgment. It is needless to say that the order refusing leave under Clause 14 though not an order on merits but effect of such order is to put an end to the suit or proceedings so far as the Court before which the suit or proceedings is concerned. In our opinion such adjudication would be a judgment within the meaning of the Clause. Therefore, we have no hesitation in rejecting the preliminary objection to the maintainability of the present appeal.

9.Next, the question is whether on facts, the appellants are entitled to grant of leave as sought or not. The learned Counsel Mr. Shah referred to the decision in Burroughs Welcome (India) Ltd. v. V.G.K. Sharma and King Scientific Research Centre, 1990 I.P.L.R. 60, where it has been held that as the Bombay High Court has jurisdiction to entertain the suit in respect of cause of action relating to infringement of copyright, cause of action in respect of infringement of trade mark and passing off should be permitted to be joined in the suit and under these circumstances, leave under Clause 14 of the Letters Patent was granted.

In the next decision relied upon by Mr. Shah in Gold Seal Engineering Products Pvt. Ltd. and others v. Hindustan Manufacturers (supra) while reversing the decision of Single Judge of this Court and proceedings on the assumption that this Court has no jurisdiction to entertain the suit in respect of infringement of trademark and passing off, the Division Bench held that once it is found that the plaintiffs are entitled to maintain the suit in this Court in respect of grievance of breach of copyright, there was no reason to refuse the leave so as to drive the parties to file litigation in several courts. It was held that it is necessary to grant leave with a view to avoid multiplicity of litigations. The Bench noticed that it is desirable that a practical view is taken and parties are not driven from Court to Court on technicalities. It was held that Clause 14 of the Letters Patent was enacted to subserve the purpose of avoidance of multiplicity of proceedings and the trial Court was entirely in error in refusing to grant leave on assumption that the conduct of the appellant was not bona fide. Leave was accordingly granted. The decision in Gold Seal Engineering Products Pvt. Ltds case (supra) was followed by the Division Bench in the case of M/s. Arte Indiana (supra).

10.In the light of the decided cases, we will examine whether the order passed by the learned Single Judge refusing to grant leave under Clause 14 is correct. It is apparent from the order of the learned Single Judge that the leave was refused solely on the ground that the respondents are carrying on business at Hyderabad/ Secundarabad and grant of leave would cause hardship to them. In our opinion the learned Single Judge was in error in refusing leave under Clause 14. The Court should endeavour to avoid multiplicity of litigation and the parties should not be driven from Court to Court on technicalities. In the present case the parties involved are businessmen and we are not satisfied that no undue hardship is likely to be caused to the respondents if the appellants are allowed to combine the action of trademark and passing off alongwith the action of infringement of copyright. In our opinion grant of leave would definitely avoid multiplicity of proceedings and serve the ends of justice.

11.In the result in view of the foregoing discussion appeal is allowed. The impugned order of the learned Single Judge is set aside. Misc. petition filed by the petitioner is made absolute in terms of prayer Clause (a). No order as to costs.

Certified copy expedited.

12.At this stage Mr. Divekar seeks stay of this order. Application is rejected.