MOOTHAM, J. - (1.) THIS is an appeal from an order of Mr. Justice Vishnu Datta dated the 21st January, 1959.
(2.) THE respondents had filed a suit against the appellants under Sec. 29 of the Indian Patents and Designs Act for an injunction to restrain the appellants and their servants or agents from infringing certain patents, relating to the manufacture of glass beads, registered in the name of the respondents. The appellants filed a written statement in which inter alia, they counter claimed for the revocation of the respondents patents. The learned District Judge thereupon by an order dated the 23rd December, 1958, directed that pursuant to Sec. 29(1) of the Act the suit be transferred to this Court. By the same order he granted the respondents a temporary injunction restraining the appellants from manufacturing, selling or using glass beads in infringement of the respondents patents. An appeal against so much of this order as related to the grant of a temporary injunction was dismissed by Mr. Justice Vishnu Datta. It is against that order that the appellants have filed this appeal. Two preliminary objections were taken to the hearing of this appeal. First it was contended that the order of Mr. Justice Vishnu Datta did not amount to a judgment within the meaning of cl. X of the Letters Patent and R. 5 of Chap. VIII of the Rules of Court. That objection was referred to a Full Bench which has now answered the question in favour of the appellants. The second objection was that as the appellants counter-claim was not in law a counter-claim at all the District Judge ought not to have transferred the suit to this Court. This objection is not in our opinion, well founded.
(3.) SEC . 26(1) of the Indian Patents and Designs Act enumerates the grounds upon which revocation of a patent in whole or in part may be obtained on petition to or on a counter-claim in a suit for infringement before a High Court; and Sub-Sec. (2) of this section reads thus : "(2) A petition for revocation of a patent may be presented - (a) by the Advocate General or any person authorised by him; (b) by any person alleging - (i) that the patent was obtained in fraud of his rights, or of the rights of any person under or through whom he claims; or (ii) that he or any person under or through whom he claims, was the true and first inventor of any invention included in the claim of the patentee; or (iii) that he, or any person under or through whom he claims an interest in any trade, busmen or manufacture, had publicly manufactured, used or sold, within India, before the date of the patent, anything claimed by the patentee as his invention." Sec. 29 of the Act provides that "29(1) A patentee may institute a suit in a District Court having jurisdiction to try the suit against any person who, during the continuance of a patent acquired by him under this Act in respect of an invention makes, sells or uses the invention without his license, or counterfeits it, or imitates it : Provided that where a counter-claim for revocation of the patent is made by the defendant, the suit, along with the counter claim, shall be transferred to the High Court for decision. (2) Every ground on which a patent may be revoked under Sec. 26 shall be available by way of defence to a suit for infringement." The averments relating to the appellants counterclaim are set out in paragraphs 21 and 22 of then written statement. In these paragraphs it is alleged (i) that the first respondent is not the true and first inventor of the process of manufacture, (ii) that the invention claimed by the respondents was not, at the date of the patent, a new process of manufacture, and (iii) that the patent was obtained fraudulently,;