Ranawat, J. - (1.) THIS is a civil revision application arising out of a suit instituted on the 3rd of July, 1950, by Ratanlal and others against Ram Niwas and others in the court of Civil Judge, Alwar; for an injunction restraining the defendant from infringing the rights of the plaintiff in respect of his trade mark.
(2.) THE plaintiff it was alleged, carried on a business of manufacture and sale of bidis, He sold his goods with a lable described in the plaint and the defendant also sold his goods by affixing a similar label, which it was said constituted an infringement of the plaintiff's right to use his trade mark. THE defendant raised an objection that the suit was not cognizable by the court of the Civil Judge. THE learned Civil Judge, after hearing the argument of the parties came to the conclusion that as the suit related to a question regarding infringement of the rights trade mark he had no jurisdiction to decide the case. He ordered return of the plaint for presentation to the proper court under Order 7, Rule10 C. P. C. THE plaintiff went in appeal to the court of the District Judge at Alwar who held that the case was not regarding infringement of the rights of trade mark but it was a case about passing off in the meaning of sec. 20 (2)of the Indian Trade Mark Act. He therefore decided that the suit was cognizably by the court of the Civil Judge and directed that court to proceed with tha trial of the case. THE defendant has now come to this Court in revision and it is urged on his behalf that sec. 73 of the Indian Trade Marks Act debars courts inferior to the court of District Judge from taking cognizance of the cases of infringement of trade marks or otherwise relating to any right to a trade mark and the Civil Judge is, therefore, not competent to try the suit. It is further contended that as sec. 73 provides for a matter of procedure it should be applied retrospectively to the present case which was pending on the date the Indian Trade Marks Act was extended to the State of Rajasthan. On behalf of the opposite party it has been pleaded that sec. 73 does not deal with a matter of procedure and even if it be so, the language of sec. 73 is prospective and it cannot be applied retrospectively The following two points arise for decision in this revision : - (1) Whether sec. 73 deals with a matter of procedure and is retrospective its operation so as to apply to the pending cases ? (2) Whether the language of sec. 73 is prospective and as such it cannot govern the pending cases ? Sec. 73 of the Trade Marks Act runs as follows : - "no suit for the infringement of a trade mark or otherwise relating to any right in a trade mark shall be instituted in any court having jurisdiction to try the suit". Mr. Ram Avtar Gupta for the petitioner has cited p. 377 of Maxwell's book on the interpretation of Statutes (9th edition) which gives a number of cases on the point that enactments regulating the procedure in courts are usually imperative and not merely directory. Strict compliance would be imperative and non-compliance would be fatal to the proceedings. In Lauri vs. Renad (l)Lindly L. J. said "it is a fundamental rule of English Law that no statute shall be construed so as to have a retrospective operation, unless its language is such as plainly to require such a construction, and the same rule involves another and subordinate rule to the effect that a statute is not to be construed so as to have a greater retrospective operation than its language renders necessary. " Similarly, in Gardner vs. Lucas (1) Lord O'hagan has observed that unless there is some declared intention of the Legislature clear and unequivocal or unless there are some circumstances rendering it inevitable that we should take the other view, we are not retrospective. Ordinarily, a statute should be taken to be prospective in its to presume that an Act is prospective and operation unless the intention of the law appears clearly to make it retrospective. The courts have adopted a rule of interpretation than if an alteration in the law occurs pending action, the rights of the parties are to be decided by the law or equity existing when the action was began except when the intention of the Legislature is clearly otherwise so as to effect the vested rights. In Leeds and County Bank vs. Walker (3) it was said that in the absence of anything in an Act to show that it was to have a retrospective operation, it could not be so construed as to have the effect of altering the law applicable to a claim in litigation at the time when the Act is passed. But where, however, the necessary intendment of an Act is to effect pending causes of action, the court will give effect to the intention of the Legislature even though there is no express reference to pending actions. But there is no vested right in procedure of costs, Enactments dealing with these subject apply to pending actions, unless a contrary intention is expressed or clearly implied. The case in Kimbray vs. Draper (4) has been cited on behalf of the petitioner but that case relates to a question about costs and it was held that costs is a matter of procedure only and a law which provides for security for payment of costs would equally govern a pending case. Another case which has been referred to by the learned counsel of the petitioner is Welby vs. Parker (5 ). In that case the sub-sec. (4) of sec. 1 of the Increase of Rent and Mortgage Interest (War Restrictions) Act of 1951 camp up for interpretation and it was held that the Act did not take away any rights but merely suspended a particular form of remedy and it related to a matter! of procedure only and therefore the Act was to apply retrospectively to the pending proceedings also. In the present case there is no question of costs or the mode of relief and these two authorities are therefore not of much help as regards the question at issue. In Amarnath Misra vs. Sreenarain Mansingha (6) it was held that a right to have a suit entrained or tried in original jurisdiction of the High Court is more than a mere matter of procedure and it affects substantive and vested or existing rights. In Feroze Ahmad and others vs. Akbar Ali (7) Harries C. J. observed that where an amending law applies only to pro-cedural matters, retrospective effect can be given to it and often should be given to it. On the other hand, no retrospective effect should be given to an amendment of the law relating to procedure if the amending statute makes it clear that the amendment should only have prospective effect. The question as to whether a statute should have prospective and retrospective effect as will can only arise when the words of the statute are capable of giving the enactment both prospective and retrospective effect. The question can never arise if the words of the statute make it clear that it should have prospective effect only. Mr. Rastogoi has argued that because sec. 73 says that no suit for the infringement of a trade mark or otherwise relating to an interest in the trade mark shall be instituted in any court inferior to a District Court having jurisdiction to try a suit it is clear that it was intended to apply to case instituted after the passing of the new Act. The words "shall be instituted" in sec. 73 relate to cases which are to be instituted after the coming into force of the new Act. There is nothing in the language of sec. 73 to make its provision applicable to cases which were pending at the time the Act came into force. The language is plain and does not admit of any doubt about the intention of the legislature as regards operation of sec. 73. The second argument of the learned counsel of the opposite party is that by instituting a suit in the court of the Civil Judge his client had acquired vested rights to file two appeals which could not be taken away without an express provision of law. Both these arguments of the learned counsel are not without force. The words 'shall be instituted' in sec. 73 of the Indian Trade Marks Act make it clear that the provision of this section was intended to be prospective and not retrospective. Jurisdiction of a court is not a matter of pure procedure. By instituting a suit in a particular court certain rights are acquired by the parties, which are vested rights. For instance, by filing a suit in the court of Civil Judge the parties acquired rights to file two appeals and such rights cannot be taken away without an express provision of law. In some of the English cases referred to at page 123 of Maxwell's law of Interpretation of Statutes, 10th Edition, it has been observed that right to file a suit in a superior court is a vested right. Taking this proposition as the basis of the reasoning converse of it would also hold true, because by filing a suit in the court of the Civil Judge the parties as has been shown above acquired a vested right to two appeal. The answer to the first point therefore is that sec. 73 does not deal with a matter of pure procedure and is not retrospective in its operation, so as to apply to the pending cases.
(3.) THE second point is also disposed of by the discussion of the first point and the finding is that the language of sec. 73 is clearly such as to make its operation prospective and it cannot be construed in such a manner as to affect the pending cases. In view of the above findings it is not necessary to examine the question whether the suit of the plaintiff does not relate to infringement of rights of trade mark and is virtually a suit about passing off in the meaning of sec. 20 (2) of the Indian Trade Marks Act. In either case the suit is not affected by the provision of sec. 7 as discussed above. Such points if they arise in the suit shall have to be determined by the first court and the observations of the lower appellate court need not hamper the discretion of the trial Judge, They are left open for the determination of that court. The revision fails and is dismissed. Costs will abide the result of the case in the trial court. .;