Holding

A composite suit of copyright infringement and passing‑off cannot be entertained in a forum where the court lacks jurisdiction over the passing‑off cause; each cause of action must be within the court’s territorial jurisdiction.

Summary

Dabur India Ltd., the maker of "Dabur Red Tooth Powder", sued K.R. Industries for copyright infringement of its packaging and for passing off. The Delhi High Court dismissed the suit on the ground that it lacked territorial jurisdiction over the passing‑off claim, relying on the Dhodha House decision. Dabur appealed, arguing that Section 55(1) of the Copyright Act, 1957 allows a court to grant any relief conferred by law, including passing‑off, and that a composite suit could be heard where the court has jurisdiction over the copyright claim. The Supreme Court held that a court must have jurisdiction over each cause of action; a composite suit cannot be maintained where the court lacks territorial jurisdiction for one of the claims, and Order II Rule 3 of the CPC bars such suits. Consequently, the appeal was dismissed.

Issues considered

The court’s jurisdiction to entertain a composite suit comprising a copyright infringement claim under the Copyright Act, 1957 and a passing‑off claim under common law/Trade Marks Act, 1958.
Whether Section 55(1) of the Copyright Act, 1957, by using the phrase "as are or may be conferred by law", extends to remedies for passing‑off.
The effect of Order II Rule 3 of the Code of Civil Procedure, 1908 on the maintainability of a composite suit when territorial jurisdiction is lacking for one cause of action.
The scope and purpose of Section 62(2) of the Copyright Act, 1957 in providing an additional forum.

Legislation cited

Code of Civil Procedure, 1908s. Order II Rule 2, s. Order II Rule 3, s. Order VII Rule 7, s. Section 20
Copyright Act, 1957s. 55, s. 62
Trade Marks Act, 1958s. 106, s. 27
Trade Marks Act, 1999s. 134, s. 135

Subjects

copyright infringementpassing offcomposite suitjurisdictionSection 55Section 62Code of Civil ProcedureTrade Marks Actadditional forumterritorial jurisdiction

Judgment

[2008] 9 S.C.R. 652

A DABUR INDIA LTD.
II.
K.R. INDUSTRIES
(Civil Appeal No. 3637 of 2008)
MAY 16, 2008
B
[S.B. SINHA AND LOKESHWAR SINGH PANTA, JJ.)
II
Copyright Act, 1951 - ss.55, 62(1) - Trade Marks Act,
1947 - Two suits having different cause of action - Maintain-
C ability of- Held: Not maintainable - Composite suit of infringe-
ment of copyright and passing off would thus not lie in the same
forum - Code of Civil Procedure, 1908 - 0.2 r.3.
The question which arose for consideration in the
present appeal is whether the High Court was right in
D holding that the composite suit of infringement of copy-
I
right and passing off would not lie in the same forum and ~ ....
that the relief for passing off is covered by decision of ,
Supreme Court in *Dhodha House Case.

E
Dismissing the appeal, the Court
HELD: 1.1. Sub-section(1) of s.55 af Copyright Act,
1957 provides for the remedies in terms whereof the plain-
-
tiff shall be entitled to all reliefs by way of injunction, dam-
ages, accounts and otherwise as are or may be conferred
F by law for the infringement of a rig9't. It must be read as
•
'ejusdem generis'. It must take its colour from the words,
'any proceeding' namely the right to obtain a decree by
way of injunction, decree for damages, accounts. or other
incidental reliefs which can be granted by a civil court.
Such a provision can be found in the Code of Civil Proce-
G
dure also, namely Order VI Rule 7 thereof. It is, therefore,
correct to read the word "as are or may be conferred by y

law' to mean, any other law, violation whereof although
would give rise to separate and distinct cause of action.
H 652
DABUR INDIA LTD. v. K.R. INDUSTRIES 653

Under the Code, claims. arising under a statutes govern- A
ing substantive procedural law, a number of remedies may
be combined. The Court may grant an order of injunction
even in a passing off action. It is trite that where the court
has the jurisdiction/power to adjudiccite, it will necessar-
ily have the incidental power therefor. It may, however, be B
different if the Court may have exercised a power which
is not provided for as a supplemental proceeding. Thus,
whereas an incidental power is inherent in the court, a
supplemental ·power may also be exercised, keeping in
view the ultimate relief which· may be granted by it. [Paras c
23, 24] [666-8-G]
1.2. If a person is found to be guilty of violation of
copyright he will be boun.d to pay damages. For the pur-
pose of quantification of damages, taking of the accounts
may be necessary and it is in this behalf the Parliament D
thought it fit to use the word "otherwise". Thus the power
conferred by law within the meaning of sub-section(1) of
Section 55 of 1957 Act qualifies the power of the court to
grant remedies as envisaged thereunder if any other
•
cause of action arose under a different Act. An action for E
passing off is common law right but the same does not
determine the jurisdiction of the court. For exercising such
jurisdiction, the provisions· of the Code would be appli·
cable. 1957 Act being a special law would, thus, prevail
over the general law, viz., the Code. [Para 25] [667-A,B,C] F
Exphar Sa & Anr. v. Eupharfna Laboratories Ltd. &
Anr.(2004) 3 SCC 688 - held inapplicable.
State of Punjab and Anr. v. Devans Modern Brewaries
Ltd. and Anr. (2004) 11 sec 26 - relied on.
G
2. There cannot be any doubt whatsoever that the
Parliament having inserted sub-section(2) in section 62
of the 1957 Act, the jurisdiction of the Court thereunder
would be wider than the one under Section 20 of the Code.
If the impediment is sought to be removed by inserting H
654 SUPREME COURT REPORTS (2008] 9 S.C.R.

A an incidental.provision, there cannot be any doubt the court
~
could be entitled to pass an interim order, but the same
cannot be extended to a cause of action which is founded
on separate set facts as also rights and liabilities of a party
under a different Act. [Paras 27, 28] [668-A,B,D]
B 3. A composite suit would not entitle a court to enter-
tain a suit in respect whereof it has no jurisdiction, territo-
rial or otherwise. Order II Rule 3 of the Code specifically
states so and, thus, there is no reason as to why the same ...
should be ignored.A plaintiff may seek a remedy which
c can otherwise be granted by the court. It was that aspect
of the matter which had not been considered in *Dhoda
House but it never meant that two suits having different
causes of actions can be clubbed together as a compos-
ite suit. [Para 29] [669-A,B,C]
D
•
*Dhoda House v. S.K. Maingi (2006) 9 SCC 41 - distin-
guished. .. 4,

Surendra Kumar Maingi v. Mis. Dhodha House AIR
(1998) Allahabad 43; Sakri Vasu v. state of UP and Ors.
E (2008) 2 SCC 409 and Hindustan Lever Ltd. v. Ashok Vishnu
Kate (1995) 6 SCC 326 - referred to.
CIVILAPPELLATE JURISDICTION: Civil Appeal No. 3637
of 2008

F From the final Order dated 14/7/2006 of the High Court of
Delhi at New Delhi in F.A.O. (OS) No. 455 of 2006.
Fali S. Nariman, Praveen Anand, Hari Shankar K.,
Subhash Sharma, Sagar Chandra, Abhishta Kumbhat, Vikas
Singh Jangra for the Appellant.
G
Shailen Bhatia and Balraj Dewan for the Respondents.
The Judgment of the Court was delivered by
'
S.B. SINHA, J. 1. Leave granted.

H 2 .. Appellant is a manufacturer of a product known as
DABUR INDIA LTD. v. K.R. INDUSTRIES 655
[S.B. SINHA, J.)

'Dabur Red Tooth Powder' or 'Dabur Lal Dant Manjan'. In the A
year 1993, it had allegedly adopted a unique colour combina-
tion and arrangement of features which was subsequently
changed in December 1999.

3. Respondent herein is also said to be manufacturer of a
tooth powder known as 'Sujata'. It is said to have infringed the 8
copy right of the appellant. A suit was filed by the appellant
against the respondent in the Delhi High Court. Paragraph 7 of
the plaint reads thus :

"7. In December 1999, the plaintiff adopted a new carton c
while retaining the conical shape and white cap for their
product which is described hereinbelow :

On one column has the words RED TOOTH
POWDER within a yellow blurb.
D
Immediately below the blurb is an oval shaped picture
of a family with a yellow background.
• Above these two' features there is a legend within a
blurb mentioning the fact that this is a new pack.
E
The column immediately next to it contain the same
features in the Devnagri script.

A third column sets out the details including
Composition, Weight, MRP and Manufacturers
Name etc. F
The top half of the third column contains an oval
shaped device containing a diagrammatic
representation of the herbs that constitute the
ingredients of Plaintiffs product."
G
4. It was alleged that the said carton constituted an 'artistic
work' within the meaning of Section 25-C of the Copyright Act,
1957 (the 1957 Act). Respondent is said to have been using an
identical colour scheme lay out, arrangement of features and get
up as that of the plaintiffs, the essential features whereof are :
H
656 SUPREME COURT REPORTS [2008] 9 S.C.R.

A "One column has the words RED TOOTH POWDER
within a yellow blurb.
A column which contains the representation of a
family in an oval shape picture.

B There is a similar representation in the Devnagri script
in another column.
The details of the product are set out in another
column. ~

•
c • Above the details of the product there is advice of a
lotus, similar to the positioning of the plaintiffs herb~
in the plaintiff's carton."
5. The reliefs claimed for by the plaintiff in the said ·suit,
inter alia, are :
D
"(A) An order of permanent injunction restraining the
defendant, their partners, proprietors and/or promoters,
> 41!1
as the case may· be, their servants and agents,
representatives, dealers and all others acting for and on
their behalffrom reproducing any of the artistic features of
E
the plaintiffs DABUR RED TOOTH POWDER container/
packaging/pouch, including its colour combination, get up,
layout or arrangement of features, printing, publishing,
using or otherwise reproducing any of the artistic features
thereof in any material from amounting to an infringement
F of copyright.
(B) An order of permanent injunction restraining the
defendants, their partners, proprietors and/or promoters,
as the case may be, their servants and agents,
G representatives, dealers and all others acting for and on
their behalf from manufacturing, selling, offering for sale
or otherwise directly or indirectly dealing in tooth powder
packed in the impugned packaging or any other packaging '
as may be a slavish imitation and/or a substantial
reproduction of the DABUR RED TOOTH POWDER
H
,...
DABUR INDIA LTD. v. K.R. INDUSTRIES 657
[S.B. SINHA, J.]

container/packaging/pouch or from committing any other A
act as is likely to cause confusion and deception amounting
to passing off." ·
. 6. Respondent filed an application in the suit purported to
be under Order 7 Rule 11 of the Code of Civil Procedure, 1908
(hereinafter referred to as 'the Code') contending that as the B
7
defendant is resident of Andhra Pradesh, the Delhi High Court
had no jurisdiction.
7. By reason of the impugned judgment and order dated
22.5.2006, a learned Single Judge of the High Court accepted · c
the said contention of the respondent.

8. An intra court appeal preferred thereagainst has been
dismissed by a Division Bench of the said Court holding that
. the matter .is covered by the decision of this Court in Dhodha
House v. S.K. Maingi, [(2006) 9 SCC 41·]. It was stated: D
"The learned Single Judge has also held that so far as the
aforesaid relief relating to passing off is concerned, Delhi
court does not have any territorial jurisdiction as the
respondenUdefendant is from Andhra Pradesh and there
is no documentary evidence to show that the respondent E
was selling goods in Delhi. We agree with the aforesaid
findings and conclusions recorded by the learned Single
Judge. Accordingly, we find no merit in the submissions·of
the counsel appearing for the appellant that the composite
suit of infringement of copyright anq passing off would lie F
in the same forum. We also do not find any error in the
judgment of the learned Single Judge as in our considered
opinion so far the relief for passing off is concerned, the
same is covered by the decision of the Supreme Court in
Dhodha House case." G
9. Mr. Fali S. Nariman, learned senior counsel appearing
on behalf of the appellant, submits that the Division Bench of
the High Court· committed a serious error in passing the im-
pugned judgment in so far as it failed to take into consideration· H
658 SUPREME COURT REPORTS [2008] 9 S.C.R.

A the effect of a consolidated suit under the 1957 Act as also the
Trade Marks Act, 1958 (for short 'the 1958 Act'), as would be
evident from the following excerpts of Dhodha House (supra) :
"22. We are not concerned in this case with the
maintainability of a composite suit both under the 1957
8 Act and the 1958 Act. Indisputably, if such a situation arises,
the same would be permissible; but the same may not be
relevant for the purpose of determining the question of a
forum where such suit can be instituted. Sub-section (2) of
Section 62 of the 1957 Act provides for a non obstante
c clause conferring jurisdiction upon the District Court within
the local limits of whose jurisdiction, at the time of the
institution of the suit or other proceeding, the persons
instituting the suit or other proceedings have been residing.
In terms of sub-section (1) of Section 62, suit can be
D instituted and the proceedings can be initiated in respect
of matters arising under the said chapter for infringement > -
of the copyright in any work or the infringement of any
other right conferred thereunder. It does not confer
jurisdiction upon a District Court where the plaintiff resides,
E if a cause of action arises under the 1958 Act.
xxx xxx xxx
43. The short question which arises for consideration is
as to whether causes of action in terms of both the 1957
"
F Act and the 1958 Act although may be different, would a
suit be maintainable in a court only because it has the
jurisdiction to entertain the same in terms of Section 62(2)
of the 1957 Act?
44. A cause of action in a given case both under the 19~, ·:;
G Act as also under the 1958 Act may be overlapping to
some extent. The territorial jurisdiction conferred upon the
court in terms of the provisions of the Code of Civil
Procedure indisputably shall apply to a suit or proceeding
under the 1957 Act as also the 1958 Act. Sub-section (2)
H of Section 62 of the 1957 Act provides for an additional
DABUR !NOIA LTD. v. K.R. INDUSTRIES 659
[S.B. SINHA, J.]

forum. Such additional forum was provided so as to enable A
the author to file a suit who may not otherwise be in a
position to file a suit at different places where his copyright
was violated. Parliament while enacting the Trade and
Merchandise Marks Act in the year 1958 was aware of
the provisions of the 1957 Act. It still did not choose to B
make a similar provision therein. Such an omission may
r be held to be a conscious action on the part of Parliament.
The intention of Parliament in not providing for an additional
forum in relation to the violation of the 1958Act is, therefore,
clear and explicit. Parliament while enacting the Trade c
Marks Act, 1999 provided for such an additional forum by
enacting sub-section (2) of Section 134 of the Trade Marks
Act. The court shall not, it is well settled, readily presume
the existence of jurisdiction of a court which was not
conferred by the statute. For the purpose of attracting the
0
jurisdiction. of a court in terms of sub-section (2) of Section
62 of the 1957 Act, the conditions precedent specified
therein must be fulfilled, the requisites wherefor are that
the plaintiff must actually and voluntarily reside to carry on
business or personally work for gain."
E
10. Learned counsel would contend that the jurisdiction of
the court to entertain a composite suit under the 1957 Act and
the 1958 Act should be determined having regard to the provi-
sions of Section 55 of the former. Then term 'Law' within the
meaning of the said provision, it was submitted, would not only F
include a statute law but also the common law and, thus, viewed
from that perspective a composite suit for infringement of a
copyright as also passing of shall be maintainable. Strong reli-
ance in this behalf has also been placed on Exphar Sa & Anr. v.
Eupharma Laboratgries Ltd. & Anr. [(2004) 3 SCC 688].
G
11. Mr. Shailen Bhatia, learned counsel appearing on be-
half of the respondent, on the other hand, would submit that this
Court in Dhondha House (supra) categorically held that the
cause of action for infringement of the 1957 Act and that of the
1958 Act are distinct and separate. H
660 SUPREME COURT REPORTS [2008] 9 S.C.R.

A 12. Order II Rule 3 of the Code, it was submitted, deals
with pecuniary jurisdiction and not the territorial jurisdiction of
the Court.
Drawing our attention to the provisions contained in Sec-
ti on 134 of the Trade Marks Act, 1999, the learned counsel would
B contend that in relation to a passing off the action, even the
Parliament did not think it expedient that any provision giving
an option to the plaintiff to file a suit where it resides and not the
defendant.

c 13. Before adverting to the rival contentions of the parties,
as noticed hereinbefore, we may notice the provision of sub-
section (1) of Section 55 and sub-section (2) of Section 62 of
1957 Act, which read :-
"Section 55. Civil remedies for infringement of copyright-
D (1) Where copyright in any work has been infringed, the
>
owner of the copyright shall, except as otherwise provided
by this Act, be entitled to all such remedies by way of
injunction, damages, accounts and otherwise as are or
may be conferred by law for the infringement of a right;
E Section 62-Jurisdiction of court over matters arising
under this Chapter
(1) ...

(2) For the purpose of sub-section (1 ), a "district court
F having jurisdiction" shall, notwithstanding anything
contained in the Code of Civil Procedure, 1908 (5 of 1908),
or any other law for the time being in force, include a
district court within the local limits of whose jurisdiction, at
the time of the institution of the suit or other proceeding,
G the person instituting the suit or other proceeding or, where
there are more than one such persons, any of them actually ..
and voluntarily resides or carries on business or personally
works for gain."
Sub-section (2) of Section 27 of the 1958 Act reads :-
H
DABUR INDIA LTD. v. K.R. INDUSTRIES 661
[S.B. SINHA, J.]

"27. No action for infringement of unregistered trade mark.- A
(1) ....

"(2) 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 B
thereof."

Sub-section 2 of Section 106 of 1958 Act reads :-
"Section 106 - Reliefs in suits for infringement or for
passing off.- c
(1) .....
(2) Notwithstanding anything contained in sub-section (1 ),
the court shall not grant relief by way of damages (other
than nominal damages) or an account of profits in any D
case-
(a) where in a suit for infringement of a trade mark, the
infringement complained of is in relation to a
certification trade mark;. or
(b) where in a suit for infringement the defendant satisfies E
the court~ ·

(i) that at the time he commenced to use the trade
• mark complained of in the suit he was unaware
and had no reasonable ground for believing F
that the trade mark of the plaintiff was on the
register or that the plaintiff was registered user
using by way of permitted use; and
(ii) that when he became aware of the existence
and nature of the plaintiffs right in the trade mark, G
he forthwith ceased to use the trade mark in
relation to goods in respect of which it was
registered; or
(c) where in a suitfor passing off the defendant satisfies H
662 SUPREME COURT REPORTS [2008] 9 S.C.R.

A the court-
(i) that at the time he commenced to use the trade
mark complained of in the suit he was unaware
and had no reasonable ground for believing
that the trade mark of the plaintiffwas in use;
B and
(ii) that when he became aware of the existence
and nature of the plaintiffs trade mark, he
forthwith ceased to use the trade mark
c complained of."
14. We may also at this stage notice the provisions of the
Trade Marks Act, 1999, (for short, '1999 Act'), Section 134
whereof reads:-
"Section 134 - Suit for infringement, etc., to be instituted
D
before District Court
(1) No suit-
(a) for the infringement of a registered trade mark; or
E (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 plaintiff's trade mark,
whether registered or unregistered, •
F
shall be instituted in any court inferior to a District Court
having jurisdiction to try the suit.
(2) For the purpose of clauses (a) and (b) of sub-section
(1 ), a "District Court having jurisdiction" shall.,
G notwithstanding anything contained in the Code of Civil
Procedure, 1908 (5 of 1908) or any other law for the time
being in force, include a District Court within the local
limits of whose jurisdiction, at the time of the institution of
the suit or other proceeding, the person instituting the suit
H or proceeding, or, where there are more than one such
DABUR INDIA LTD. v. K.R. INDUSTRIES 663
[S.B. SINHA, J.]

persons any of them, actually and voluntarily resides or A
carries on business or personally works for gain.

Explanation.-For the purposes of sub-section (2),
"person" includes the registered proprietor and the
registered user."
B
Sub-section (1) of Section 135 of the 1999 Act reads :-

"Section 135.Relief in suits for infringement or for passing
off.-(1) The relief which a court may grant in any suit for
infringement or for passing off referred to in section 134
includes injunction (subject to such terms, if any, as the c
court thinks fit) and at the option of the plaintiff, either
damages or an account of profits, together with or without
any order for the delivery-up of the infringing labels and
marks for destruction or erasure."
D
15. The question which was posed by the learned Single
" Judge is as under:-

"The next question, however, which is more important is
whether the plaintiff can combine the two causes of action
one under the Copyright Act and the second under the Act E
of 1958 in a situation where this court has .the jurisdiction
in so far as cause of action under the Copyright Act is
concerned but has no territorial jurisdiction to entertain
.... the cause of action relating to Act of 1958."

16. Noticing the provisions of Order II Rule 2 and 3 of the F
Code of Civil Procedure enabling the plaintiff to combine more
than one cause of actions, it was opined that the said provi-
sions relate to pecuniary jurisdiction. The said jurisdiction, how-
ever, can be exercised only in the event the court has otherwise
jurisdiction in respect of the cause of action wherefor the action G
.... has been brought.
17. The learned Single Judge noticed some precedents
and opined :-
"13. Normally, I would have felt myself bound by the H
664 .SUPREME COURT REPORTS [2008] 9 S.C.R.

--(

A aforesaid two judgments which are not only of this court
but relate to same subject matter, namely, joining of two
causes of action under trademark and copyright law. Even
if I hold different opinion, the normal course of action would
have been to refer the matter to the Division Bench.
B However, this is not necessary in the instant case in view
of the fad that the controversy now stands.settled by the
Supreme Court in Dhodha House (supra)." ..,.

18. The Division Bench of the High Court on the other hand
while holding that the High Court has jurisdiction to adjudicate
c and decide upon the relief of infringement of copyright observed
that it would be open to the appellant to file a fresh suit in the
court of competent jurisdiction in respect of its action for pass-
· ing off and thus the plaint is required to be returned for filing in
the court of competent jurisdiction only in relation thereto.
D
19. In Dhodha House (supra) t_his Court was concerned ~

with the correctness of judgments of the Allahabad High Court
in Surendra Kumar Maingi v. Mis. Dodha House, [AIR 1998
·Allahabad 43] and the decision of the Delhi High Court in : PM.
Diesels Ltd: v. Mis. Patel Field Marshal, [AIR 1998 Delhi 225]
E
20. It was clearly.held that a judgment passed by a court
having no territorial jurisdiction is a nullity. As regards the cause
of action under the 1957 Act and a cause of action under the
1958 Act and or a passing off action, it was held that sub-sec- ~

F tion (2) of Section 62 would confer jurisdiction on a court where
the plaintiff resides. The cause of action in respect of others
was stated to be where the defendant resides.
It was also noticed that in a given case the petition under
the 1957 Act or 1958 Act may be overlapping, holding :-
G
"44. The territorial jurisdiction conferred upon the court in
terms of the provisions of the Code of Civil Procedure
indisputably shall apply to a suit or proceeding under the
1957 Act as also the 1958 Act. Sub-section (2) of Section
62 of the 1957 Act provides for an additional forum. Such
H
DABUR INDIA LTD. v. K.R. INDUSTRIES 665
[S.B. SINHA, J.]

additional forum was provided so as to enable the author A·
to file a suit who may not otherwise be in a position to file
a suit at different places where his copyright was violated.
Parliament while enacting the Trade and Merchandise
Marks Act in the year 1958 was aware of the provisions
of the 1957 Act. It still did not choose to make a similar s
provision therein. Such an omission may be held to be a
conscious action on ttie part of Parliament. The intention
of Parliament in not providing for an additional forum in
relation to the violation of the 1958. Act is, therefore, clear
and explicit." c
21. Noticing that whereas in Dhoda House (supra) the in-
fringement complained of primarily was that of 1958 Act and
not under the 1957 Act, in Patel Field Marsha/( supra) the thrust
was on the sale of products and/or advertisement by the appel-
. lant for registration of trade marks in the Trade Marks Journal D

.. and other local papers .
. .
The law was stated in the following terms :-
"54. For the purpose of invoking the jurisdiction of a court
only because two causes of action joined in terms of the E
provisions of the Code of Civil Procedure, the same would
not mean that thereby the jurisdiction can be conferred
upon a court which had jurisdiction to try only the suit in.
respect of one cause of action and not the other. Recourse ·
to the additional forum, however, in a given case, may be F
taken if both the causes of action arise within the
jurisdiction of the court which otherwise had the necessary
jurisdiction to decide all the issues."
22. What would, however, be the nature of composite suit,
was also be taken note of. The Court observed :- G
"55. In this case we have not examined the question as to
whether if a cause of action .arises under the 1957 Act and
the violation of the provisions of the Trade Marks Act is
only incidental, a composite suit will lie or not, as such a H
666 SUPREME COURT REPORTS (2008] 9 S.C.R.

A question does not arise in this case." -<(

It is in the aforementioned context, submission of Mr.
Nariman that a composite suit would be maintainable having
regard to sub-section (1) of Section 55 of the 1957 Act must be
considered.
B
23. Sub-section (1) of Section 55 of 1957 Act provides for
the remedies in terms whereof the plaintiff shall be entitled to all
reliefs by way of injunction, damages, accounts and otherwise -r
as are or may be conferred by law for the infringement of a right.
c It must be read as 'ejusdem generis'. It must take its colour from
the words, 'any proceeding' namely the right to obtain a decree
by way of injunction, decree for damages, accounts or other
incidental reliefs which can be granted by a civil court. Such a
provision can be found in the Code of Civil Procedure also,
namely Order VII Rule 7 thereof. It is, therefore, in our opinion,
D
would not be correct to read the word "as are or may be con-
ferred by law" to mean, any other law, violation whereof although
•
would give rise to separate and distinct cause of action. Under
the Code claims arising under a statutes governing substantive
or procedural law, a number of remedies may be combined.
E The Court may grant an order of injunction even in a passing off
action. It is trite that where the court has the jurisdiction/power
to adjudicate, it will necessarily have the incidental power there-
for. It may, however, be different if the Court may have exer-
cised a power which is not provided for as a supplemental pro-
F ceeding e.g. Section 94 of the Code. {[See State of Punjab
and Anr. v. De vans Modern Brewaries Ltd. and Anr ((2004) 11
sec 26]}.
24. Thus, whereas an incidental power is inherent in the
court, a supplemental power may also be exercised, keeping
G
in view the ultimate relief which may be granted by it. We may
notice that this Court in Sakiri Vasu v. State of UP and others,
{ (2008) 2 SCC 409} held that the Magistrate will have power to
..
grant interim maintenance, although no such provision existed
in Section 125 of the Code of Criminal Procedure, 1973.
H
DABUR INDIA LTD. v. K.R. INDUSTRIES 667
[S.B. SINHA, J.]

Similarly in Hindustan Lever Ltd. v. Ashok Vishnu Kate, [ A
)
(1995) 6 SCC 326] this Court has held that the Labour Court
will have the power to grant injunction as an incidental power.
25. If a person is found to be guilty of violation of copyright
he will be bound to pay damages. For the purpose of quantifi-
cation of damages, taking of the accounts may be necessary B
and it is in this behalf the Parliament thought it fit to use the
word ''otherwise". Thus the power conferred by law within the
'Y meaning of sub-section (1) of Section 55 of 1957 Act qualifies
the power of the court to grant remedies as envisaged thereun-
der if any other cause of action arose under a different Act. An c
action for passing off is common law right but the same does
not determine the jurisdiction of the court. For exercising such
jurisdiction, the provisions of the Code would be applicable.
1957 Act being a special law would, thus, prevail over the gen-
eral law, viz., the Code. D

--< 26. Exphar Sa (supra) cannot be said to have any appli-
~
cation in the instant case. The question which arose for consid-
eration therein was as to whether the jurisdiction of a court un-
der sub-section (2) of Section 62 of the 1957 Act is wider than
that of the court specified under the Code of Civil Procedure E
., and thus a person instituting a suit having any claim on the own-
ership of the copy right which has been infringed, would not be
a ground for holding that he would not come within the purview
of sub-section (2) Section 62 of the 1957 Act, as he had been
served with a 'cease and desist' notice, opining :- F
y

"13. It is, therefore, clear that the object and reason for the
introduction of sub-section (2) of Section 62 was not to
restrict the owners of the copyright to exercise their rights
but to remove any impediment from their doing so. Section
G
62(2) cannot be read as limiting the jurisdiction of the
District Court only to cases where the person instituting
the suit or other proceeding, or where there are more than
one such persons, any of them actually and voluntarily
resides or carries on business or presently works for gain.
H
668 SUPREME COURT REPORTS [2008] 9 S.C.R.

A It prescribes an additional ground for attracting the
jurisdiction of a court over and above the "normal" grounds
as laid down in Section 20 of the Code."

27.There c~nnot be any doubt whatsoever that the Parlia-
ment h(!ving inserted sub-section (2) in Section 62 of the 1957
8 · Act, the jurisdiction of the Court thereunder would be wider than
the one under Section 20 of the Code. The object and reasons
for enactment of sub-section (2) of Section 62 would also ap-
pear from the report of the Committee, as has been noticed by ..,
this Court being a provision which has been specially designed
C to confer an extra benefit upon the authors who were not in a
position to instate copyright infringement proceeding before the
Courts. It is in the aforementioned context the law laid down by
this Court in paragraph 13 of Dhonda House (Supra) must be
understood.
D
28. If the impediment is sought to be removed by inserting
an incidental provision, there cannot be any doubt the court could
be entitled to pass an interim order, but the same by no stretch
of imagination can be extended to a cause of action which is
. founded on separate set of facts as also rights and liabilities of
E a party under, a different Act. In Dhoda House (supra), although
Exphar Sa (supra) was not noticed, the distinction would be
apparent from the following :-

"50. In this case, the Delhi High Court could not have
F .invoked its jurisdiction in terms of the 1957 Act. The primary
ground upon which the jurisdiction of the original side of
the High Court was invoked was the violation of the 1958
Act, but in relation thereto, the ·provisions of sub-section
(2) of Section 62 of the 1957 Act could not be invoked.
G 51. The plaintiff was not a resident of Delhi. It has not been
able to establish that it carries on any business at Delhi.
For our purpose, the question as to whether the defendant
had been selling its produce in Delhi or not is wholly
irrelevant (sic). It is possible that the goods manufactured
H by the plaintiff are available in the market of Delhi or they
DABUR INDIA LTD. v. K.R. INDUSTRIES 669
[S.B. SINHA, J.]

are sold in Delhi but that by itself would not mean that the A
plaintiff carries on any business in Delhi."
29: What then would be meant by a composite suit? A
composite suit would not entitle a court to entertain a suit in
respect whereof it has no jurisdiction, territorial or otherwise.
Order II Rule 3 of the Code specifically states so and, thus, there 8
is no reason as to why the same should be ignored. A compos-
ite suit within the provisions of the 1957 Act as considered in
Dhoda House (supra), therefore, would mean the suit whic.h is
founded on infringement of a copy right and wherein the inci-
dental power of the Court is required to be invoked. A plaintiff C
may seek a remedy which can otherwise be granted by the court.
It was that aspect of the matter which had not been considered
in Dhoda House (supra) but it never meant that two suits hav-
ing different causes of actions can be clubbed together as a
composite suit. D
30. For the reasons aforementioned we do not find any
merit in this appeal which fails and is dismissed with costs.
Counsel's fee assessed at Rs.50,000/-.
D.G. Appeal dismissed.

'(

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