1987 PLP 2062 (CLC)

As common question of law is involved in Civil Reference No. 3‑C‑87, 4‑C‑87, 5‑C‑87, 6‑C‑87 7‑C‑87, 8‑C‑87 and 9‑C‑87, I propose to decide them by one judgment.

2. M/s. Kashif Engineering Works filed seven suits against various parties under section 29 of the Patent and Designs Act 11 of 1911 with a prayer firstly that the defendant be permanently restrained from infringing the patent rights of the plaintiff regarding water pump bodies; secondly for an order to the effect that defendants be directed to destroy all dies and instruments used for manufacturing of water pumps and thirdly for recovery of damages amounting to Rs.24,

000. The defendants in each suit resisted the claim of M/s. Kashif Engineering Works plaintiffs. It was pleaded in their respective written statements that the suit was not maintainable in its present form; that the defendants have their own registered design of water pumps; that the plaintiffs did not invent any design of water pumps; that the suit was vexatious and frivolous and that the plaintiff's firm being not registered was not entitled to file suit. On merits it was contended that the defendants did not copy the design of the plaintiffs; that the plaintiffs were not inventor of any water pump system and that the suit was not correctly valued. It was therefore, prayed that the suit be dismissed with costs.

3. The learned District Judge, Gujranwala before whom the suits were pending after hearing the parties in all the suits, came to the conclusion that the suits were triable only by High Court, in view of the proviso to section 29 of Act 11 of 1911. Hence these references.

4. I have heard the learned counsel appearing for the parties. I have also carefully gone through the plaint, written statements filed in each case and various documents annexed with the plaint. The relevant provisions of Section 29 are reproduced below:‑ " Suits for Infringement of Patents. 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 without his licence or counterfeits it, or imitates it; (Provided that where a counter‑claim for revocation of the patent is made by the defendant, the suit, alongwith the counter‑claim shall be transferred to the High‑ Court for decision. ) Every ground on which a patent may be revoked under (Section 56) in shall be available by way of defence to a suit for infringement."

4. It is apparent from the above provisions of law that the suit by a patentee in normal course is competent before the District Court The High Court will have jurisdiction only if the defendant sets up a counter‑claim for revocation of the patent of plaintiff. The revocation of the patent can be claimed under section 26 of Act 11 of 1911. The defendants in all the seven suits did not set up any counter‑claim for revocation of the patent of M/s. Kashif Engineering Works plaintiffs. As such the suits were not competent before the High Court.

5. In view of above situation the references are sent back to the learned District Judge, Gujranwala who has the jurisdiction to try the suits. He will proceed to hear the suits and decide them on merits according to law. The parties are directed to appear before the learned District Judge, Gujranwala on 30‑7‑1987. The record will be sent back immediately. The reference is accordingly answered. K.B.A./K‑31/L??????????????????????????????????????????????? Reference answered accordingly.