JUDGMENT Costello, J. - These two patent appeals are concerned with two sets of proceedings which were tried and determined by Mr. Justice Ameer Ali more or less together. They were not formally consolidated, and indeed they could not have been, because the parties in the one were not exactly the same as the parties in the other. But the facts in issue and the points of law arising in each of them were, to a large extent, identical. Appeal No. 62 of 1937 arises out of Suit No. 2203 of 1935 and in it the Plaintiffs (as set out in the cause title) were: Ernest Bruno Nier, Ida Ella Adolph, Richard Woldemar Nier, Martha Helene Pross and Johannes Kurt Nier, forming a partnership firm constituted under the laws of the German Reich and trading under the name and style of Hermann Nier, having their principal office and place of business in Beirfeld (Saxonia) in Germany, and all residing in Beirfeld aforesaid. They sue by their constituted attorney in India, Hanns George Fischer of F. Racek & Co., carrying on business at Lohar Chawl, Lohar Street, in the city of Bombay and also at 111, Radhabazar Street, Calcutta and residing at 23, Ballygunge Circular Road in this city. The Defendants were firstly George Reinhart, Werner Reinhart, Oskar Reinhart, and Peter Reinhart, a partnership firm constituted according to the relative laws of the Swiss Republic trading under the name and style of Volkart Brothers and carrying on business in the said firm name at Volkart Buildings, 19, Ballard Estate, Bombay and amongst other places, at 11, Clive Street in the city of Calcutta as Agents, secondly Radha Kanta Doss and Sons, Limited, a company limited by shares and incorporated in India under the Indian Companies Act (VII of 1913) having their registered offices and carrying on business at amongst other places 210 and 211, Old China Bazar Street in Calcutta as dealers. 2. In the suit the Plaintiff firm as the grantee of two Indian Letters Patent in respect of improvements in and relating to hurricane lamps namely, Indian Letters Patent No. 19006 as of the 13th of June, 1932, and No. 19157 as of the 29th of August, 1932, (through Hans George Fischer, one of its constituted attorneys in this country) claimed a perpetual injunction and other appropriate reliefs in respect of alleged infringements of those Patents. The suit was instituted on the 20th of December, 1935. 3. Appeal No. 66 of 1937 arises out of proceedings which were intituled--- 4. In the matter of Letters Patent granted to Hermann Nier numbered 19006 of 1932,.. And In the matter of the Indian Patents and Designs Act, II of 1911 And In the matter of an application by Harold Augustus De Penning under sec. 26 of the said Act. 5. These proceedings were taken by a concern called the R. E. Dietz Company (Inc) of New York in the United States of America against the Hermann Nier firm above-mentioned for the purpose of obtaining an order that the Letters Patent No. 19006 of 1932 granted to that firm should be revoked. It will be convenient to refer to the two sets of proceedings respectively as the " infringement suit" and " the revocation proceedings." Before dealing with the actual proceedings it is perhaps useful to re-call the antecedent history of the relations between the parties. 6. For a number of years before the Great War both the Hermann Nier firm and the R. E. Dietz Company (Inc) carried on business as manufacturers and sellers of hurricane lamps. The R. E Dietz Company sold and still sell their lamps designated by specific names for each variety or type whereas the Hermann Nier firm used the general trade name of "Feurhand" for all their lamps, but sold the different varieties of their lamps identified by numbers. In or about the year 1909 the R. E. Dietz Company (Inc) put on the market a lamp which they called "the Wizard " and that was followed on the part of the Hermann Nier firm by a lamp known as Feurhand No. 260. In the year 1914 the R. E. Dietz Company (Inc) produced a lamp which they called the " D Lite " and that was, very shortly afterwards, countered by the Hermann Nier firm with a lamp which they called Feurhand No. 230. All these four lamps are said to give a light of ten candle power or thereabouts. The R. E. Dietz Company had also produced in the year 1909 another lamp which they called the Dietz Junior and that was imitated by the Hermann Nier firm with their Feurhand No. 252. Both these lamps gave a light of six candle power. 7. The R. E. Dietz Company had also produced in the year 1909 another lamp which they called the Dietz Junior and that was imitated by the Hermann Nier firm with their Feurhand No. 252. Both these lamps gave a light of six candle power. 7. In the year 1914 the R. E. Dietz Company imported into India a smaller lamp which they called the " Little Wizard." Owing to the outbreak of war and the nationality of the persons composing the Hermann Nier firm they were unable immediately to enter into competition with this particular lamp but when the war was over and commercial operations were again open as between Germany and India, the Hermann Nier firm put on the market in this country a lamp which they called Feurhand No. 270 and thereby endeavoured to overtake the start their rivals had obtained as regards the marketing of smaller lanterns. The next thing that happened was that the Hermann Nier firm obtained a grant of the Letters Patent with which we are now concerned. The specification on which the Letters Patent was based is dated the 13th of June, 1932, and it was accepted on the 18th of August, 1933. The Letters Patent were sealed on the 14th of February, 1934, but as is the usual practice they were made operative from the date of the original specification that is the 13th June, 1932. The specification was described as being one for improvements in or relating to hurricane lamps. 8. In the year 1932 the Hermann Nier firm had put on the market in India a lamp designated as Feurhand No. 275 which was said to have been constructed in accordance with and upon the principles enunciated in the specification. It was contended in the proceedings before Mr. Justice Ameer Ali that this lamp, although of considerably smaller dimensions than any of its predecessors whether those made by the Hermann Nier firm themselves or by the R. E. Dietz Company (Inc), had the capacity of giving a light of some six candle power, that is to say, a light equal in intensity to that theretofore only produced by lamps of a larger size. 9. In the year 1934 the Hermann Nier firm manufactured and put on the market a still smaller lamp which is known as Feurhand No. 175. 9. In the year 1934 the Hermann Nier firm manufactured and put on the market a still smaller lamp which is known as Feurhand No. 175. It is not necessary however further to consider this particular product of the Hermann Nier firm because the disputes between the parties with which we are immediately concerned turn upon the two questions of whether the Hermann Nier firm are entitled to the exclusive privilege of making, selling and using lamps of the No. 275 type, and whether the R. E. Dietz Company (Inc) have infringed rights possessed by the Hermann Nier firm by reason of their having put on the market a small lamp designated the Dietz " Comet." 10. The " Comet " appeared round about June or July, 1935, and thereupon the Hermann Nier firm instantly took steps to caution dealers against selling any lamps infringing their Patent and we find that on the 2nd of August, 1935, a letter was written by Messrs. Remfry & Son, Patent agents to Messrs. Radha Kanto Doss & Sons, Ltd., who are the second Defendants in the infringement suit. 11. [After setting out the letter His Lordship proceeded.] 12. This letter of the 2nd of August, 1935, was countered by a letter from Messrs. On-, Dignam & Co., acting on behalf of R. E. Dietz Company in which they wrote-- Our clients' Calcutta Agents Messrs. Volkart Brother have informed one clients that you and or your Calcutta representative Messrs. F. Racek & Co., through Messrs. Remfry & Co., attorneys of this town, have been circularising our clients' buyers and threatening to take action should they purchase any further supplies of our clients' hurricane lamps which are alleged to infringe year Indian Patent No. 19008 of 1932. 13. The solicitors further stated that on their clients' instructions they were instituting proceedings on the following day in the High Court of Judicature at Fort William in Bengal for the revocation of Patent No. 19006 on the grounds and for the reasons set out in their clients' petition for revocation. They added that they were notifying the Calcutta representatives of Hermann Nier,---Messrs. F. Racek & Co.--of the course they were adopting and said we expect they will get in touch with their Attorney whom we will of course supply with a copy of the petition and particulars in due course. 14. Messrs. Orr, Dignam & Co. They added that they were notifying the Calcutta representatives of Hermann Nier,---Messrs. F. Racek & Co.--of the course they were adopting and said we expect they will get in touch with their Attorney whom we will of course supply with a copy of the petition and particulars in due course. 14. Messrs. Orr, Dignam & Co. sent a copy of this letter to Messrs. F. Racek & Co. under cover of a letter dated the 26th of August, 1935. 15. The only other letter that need be mentioned is one dated the 31st of August, 1935, written by Little & Co., Solicitors of Bombay, on behalf of Messrs. F. Racek & Co. to Messrs. Volkart Brothers-- 16. [After setting out the letter His Lordship proceeded.] 17. In accordance with the notice which had been given in the letter of Messrs. Orr, Dignam & Co., dated the 26th of August, 1935, a petition on behalf of R. E. Dietz Company (Inc.) dated the 23rd of August, 1935, was tiled in this Court on the 27th of August, 1935, by one Harold Augustus De Penning, their constituted attorney. The petition set forth that-- Messrs. Volkart Brothers of 11, Clive Street who are the present Calcutta Agents of R. E. Dietz Company are importers of hurricane lamps of the manufacture of the said R. E. Diets. Company and a high reputation has been established in the trade and with the 'public for the said goods. Such hurricane lamps have been imported into India for many years past and in very large quantities. Hurricane lamps of the manufacture of R. E. Dietz Company have been sold in India to a number exceeding several mi lions. Messrs. Volkart Brothers have been the Calcutta Agents of R. E. Dietz Company since 1933 prior to which Messrs. W. H. Brady & Co. Ltd, were the Calcutta Agents and before the last named Company Messrs. Elliot Co. Ltd. Since 1933 Messrs. Vol. kart Brothers have entered into contracts with retailers in India to supply to them quantities of hurricane lamps of various sizes, both large and small. They have recently done so and are continuing to do so. 18. It was then stated-- The Respondent Corporation (meaning the Her. Elliot Co. Ltd. Since 1933 Messrs. Vol. kart Brothers have entered into contracts with retailers in India to supply to them quantities of hurricane lamps of various sizes, both large and small. They have recently done so and are continuing to do so. 18. It was then stated-- The Respondent Corporation (meaning the Her. man Nier firm) is a manufacturer of hurricane lamps which carries on its manufacture at Beierfeld, Saxony, Germany, and thence imports hurricane lamps into India inter alia through its Indian Agents Messrs. F. Racek & Co., who have their place of business at No. 111, Radhabazar Street in Calcutta and also in Bombay. The Respondent Corporation claims to have a monopoly in the right to manufacture and to sell in India hurricane lamps of a small size and in particular hurricane lamps of whatever construction which are so reduced in size that in a lamp of an illuminating capacity of 6 Henfer Candles the air chamber above the sieve plate is 420 o. o. or less and hurricane lamps of whatever illuminating capacity which are so constructed that the cubic capacity of the space between the sieve plate and the exit holes for burnt gases is one of lees than 120 c. c. per Henfer candle power. The Respondent Corporation bases its claim upon Indian Letters Patent granted to it on the 18th day of August, 1933, and numbered 19006, 13th June, 1932. 19. A copy of the specification was annexed to the petition and marked with the letter " A." The Petitioners alleged that the Letters Patent were wholly invalid by reason of the matters set forth in the particulars of objection accompanying the petition and marked "B" They then said-- The Respondent Corporation and/or its said Agents in India Messrs. Racek & Co., have them, selves and through their Attorneys Messrs. Remfry &-Sons, been circularising retail dealers in hurricane lamps warning them not to trade in lamps of other than the Respondents' manufacture in which the capacity of the air Space between the sieve plate and the outlet for burnt gases is less than 120 c. c. per Henfer candle power of the lantern, and in lamps which are within in other respects the scope of its claims as its invention. 20. 20. The Petitioners complained that-- By reason of the claims made in the Respondents, said Specification and by reason of the said circulars the retailers are afraid to purchase the goods of other manufacturers imported by Messrs. Volkart Brothers as aforesaid. 21. The concluding paragraphs of the petition were in these terms: The Letters Patent obtained by the Respondent was so obtained in fraud of the R. E. Dietz Company and Messrs. Volkart Brothers' rights. Particulars of the said fraud are set out in the statement of particulars delivered herewith, including paragraphs 2 and 5 thereof. The E. E. Dietz Company through whom your petitioner claims was the true and first inventor of an invention included in the claims of the Specification of the said Letters Patent as set forth in particulars of objections delivered herewith. The B. E. Dietz Company and in India its Calcutta Agents for the time being had prior to the date of the said Letters Patent publicly sold the articles as claimed in the claiming clauses Nos. 1, 2, 3 and 4 of the specification of the said Letters Patent as set fourth in the Particulars of Objections delivered herewith. 22. I set out these paragraphs in full because the matters stated therein are those upon which the Petitioners relied as constituting grounds for conferring upon the Petitioners a right to bring the Revocation proceedings. The Particulars of Objection to the validity of the Letters Patent 19006 of 1932 were: 1. The said Herman Nier was not the true and first inventor of the alleged invention. The true and first inventor thereof was K. E. Dietz Company of New York or alternatively Elliot & Co. Ltd. Neither the said R. E. Dietz Co., of New York nor Messrs. Elliot & Co. Ltd. was the applicant for the said Letters Patent. 2. The alleged invention included in the statement of claims was not at the date of the application for a patent a new invention within the meaning of the Indian Patents and Designs Act. It had before the said date been both publicly used in British India and had been made publicly known in British India. 2. The alleged invention included in the statement of claims was not at the date of the application for a patent a new invention within the meaning of the Indian Patents and Designs Act. It had before the said date been both publicly used in British India and had been made publicly known in British India. It had been published inter alia by the public sale and use in British India of lamps constructed in accordance with the said invention and/or constructed in a manner which is within the claiming clauses from the year 1006 and in each succeeding year to the present day. The persons who have publicly Bold such lamps within the said period include Messrs. R. E. Dietz Company, W. H. Brady & Co. Ltd., Elliot & Co., and Messrs. Volkart Brothers and many Indian importers and dealers, and all retailers of the Dietz Junior and Little Wizard Lanterns. Public user has been by inter alia, all the purchasers of Dietz Junior Lanterns of which more than a million dozen have been imported into India within the said period and all the purchasers of Little Wizard Lanterns which also have been imported and sold in very great numbers. The alleged invention has further been published by documentary publication. 3. The said alleged invention was not proper subject matter for Letters Patent, having regard to the common general knowledge at the date thereof. The said alleged invention was obvious and did not involve any inventive step having regard to what was known and used prior to the date of the said Letters Patent. 4. The said alleged invention is of no utility. 5. The said Letters Patent were obtained in fraud of the rights of the R. B. Dietz Company and Messrs. Volkart Brothers. Particulars of the said fraud are as follows:-- The application for Letters Patent was made by the Respondent who well knew that articles manufactured and/or constructed in a manner which is within the scope of the said invention had been imported into India and sold by Messrs. Volkart Brothers and by Messrs. R. E. Dietz Company and others for many years prior to the date of the said application. 6. The Respondent has knowingly included in the original specification as its invention that which was not new and whereof it was neither the inventor nor the assign nor the legal representative of such inventor. Volkart Brothers and by Messrs. R. E. Dietz Company and others for many years prior to the date of the said application. 6. The Respondent has knowingly included in the original specification as its invention that which was not new and whereof it was neither the inventor nor the assign nor the legal representative of such inventor. The matter bo included comprise the whole and any part of what is alleged by the Respondent in the said Letters Patent to be its invention. 23. Then in paragraph 7 it was stated that the original specification contained certain wilful or fraudulent misstatements. Paragraphs 8 and 9 are as follows: 8. That the whole or alternatively a part of the invention and/or the manner in which it is to be made and used as described in the original specification is not thereby sufficiently described and this insufficiency is injurious to the public. 9. That the result claimed for the said invention is not attained. The light output claimed by the Respondents for lanterns made by them according to the alleged invention is not obtained." 24. Subsequently further particulars of the allegations made in paragraph 8 of the particulars of objection were delivered. The answer to the petition and the particulars annexed thereto was filed by the Hermann Nier firm on the 21st of November, 1935, and in it they denied the case which had been put forward by the R. E. Dietz Company. The Hermann Nier firm contended that the Letters Patent were not invalid by reason of any of the matters appearing in the particulars of objection or for any other reason and so the Petitioners were not entitled to an order revoking the said Letters Patent. 25. The Hermann Nier firm contended that the Letters Patent were not invalid by reason of any of the matters appearing in the particulars of objection or for any other reason and so the Petitioners were not entitled to an order revoking the said Letters Patent. 25. It is to be observed that it was the R. E. Dietz Company who as a retort to the issuing of the warning letter of the 2nd of August, 1935--made the first move in the way of legal proceedings as between the contesting parties: the other side however were not slow in making a counter attack, for, on the 20th of December, 1935, the Hermann Nier firm started their suit--claiming reliefs against the agents for sale of the lamps and against actual sellers of lamps alleged to be infringements of the Letters Patent No. 19006 dated as of the 13th of June, 1932, and the other Letters Patent No. 19157 dated as of the 29th of August, 1932. 26. It may be stated at once that we are not now concerned with the last mentioned Letters Patent because no appeal has come up to this Court against the decision of Mr. Justice Ameer Ali upon that matter. The plaint in the infringement suit was verified by Hanns George Fischer the constituted attorney in India of the Hermann Nier firm and in the plaint it was stated that the Plaintiff firm carry on business in co-partnership in Germany and are now and have been for some time past large scale manufacturers, inter alia; of lamps or lanterns of the type commonly referred to as hurricane lanterns or hurricane lamps. It was averred that since the year 1921 the Plaintiff firm's sales in British India of hurricane lanterns, and particularly those of the cold-blast type and associated with the name of Feuerhand have greatly increased and their lanterns have attained in the Indian markets a great reputation for efficiency. The plaint set out that the first four Defendants were the distributing agents in India of hurricane lanterns and/or lamps manufactured by R. E. Dietz Co. (Inc.) of New York and that the other Defendants, Radha Kanta Doss & Sons carry on business as dealers in Calcutta and as one of the sub-agents for the distribution in Calcutta and elsewhere of hurricane lanterns and for lamps manufactured by the R. E. Dietz Co. (Inc.). 27. (Inc.) of New York and that the other Defendants, Radha Kanta Doss & Sons carry on business as dealers in Calcutta and as one of the sub-agents for the distribution in Calcutta and elsewhere of hurricane lanterns and for lamps manufactured by the R. E. Dietz Co. (Inc.). 27. The plaint then set out that the Plaintiff firm is the grantee of the two Indian Letters Patent I have mentioned and that these Letters Patent are in respect of improvements in and relating to hurricane lamps. There was then an allegation that the Defendants and each of them had infringed and threatened and intended to infringe these Letters Patent in the manner described in the particulars of breaches which were annexed to the plaint. Those particulars of breaches were that the first four Defendants between August, 1935 and October, 1935, import. ed into British India in commercial quantities and/or had taken delivery in British India and in Calcutta for the purpose of selling and/or meeting indents or orders of dealers and others hurricane lanterns or hurricane lamps described and/or advertised as Dietz " Comet" lanterns so constructed as to infringe Claiming Clauses 1, 2 and 10 of the Plaintiffs' Indian Letters Patent No. 19006 of the 13th of June, 1932, as also both the claiming clauses in the specification appearing of the Plaintiffs' Indian Letters Patent 19157 of the 29th of August, 1932. 28. It was further alleged that these four Defendants on or about the 18th of September, 1935, had offered to supply to Lalit Mohan Bhadra within British India 100 dozen or more than a hundred dozen of the said Comet lanterns. 29. As regards the fifth Defendant it was alleged that on or about the 25th of September, 1935, he had sold to one Pronoya Kumar Sen Gupta in Calcutta some three hurricane lanterns or hurricane lamps described as Dietz Comet lanterns so constructed as to infringe clauses 1, 2, 3, 4, 5, 6, 7, 8 and 10 of the Plaintiffs' Indian Letters Patent 1_9006 dated the 13th of June, 1932; and that on the 17th of October, 1935, he had accepted an order from S. Bhadra & Co. of Calcutta for two dozen of the said Dietz Comet lanterns; and that on or about the 21st of October, 1935, he had sold to the said S. Bhadra & Co. of Calcutta for two dozen of the said Dietz Comet lanterns; and that on or about the 21st of October, 1935, he had sold to the said S. Bhadra & Co. one case containing two dozen of the said lanterns. 30. In answer to the plaint in the infringement suit the Defendants filed a written statement on the 10th of February, 1936, in which they said that the Letters Patent No. 19006 as of the 13th of June, 1932, were and had at all material times been invalid for the reasons appearing in the particulars of objections delivered therewith; and they referred to the fact that Messrs. R. E. Dietz Company had already on the 23rd of August, 1934, instituted proceedings for the revocation of the aforesaid Indian Patent. In para. 5 of the written statement it is averred that at the date of the Letters Patent, the apparatus (the subject-matter of the suit) was not novel. The Defendants Radha Kanta Doss & Sons, Limited made the further defence that at the date of the alleged infringement they were not aware nor had they reasonable means of making themselves aware of the existence of the Plaintiffs' Letters Patent. The particulars of objection annexed to the written statement were, in substance, the same as those which had been filed by R. E. Dietz Company (Inc.) in the revocation proceedings. To the written statement was added a counter claim which was in this form: The Defendants repeat paragraph 4 of the written statement" (which was the paragraph in which it was averred that the Letters Patent are and have at all material times been invalid for the reasons appearing in the particulars of objections) " and counter claim for revocation of the Plaintiffs' two Indian Letters Patent No. 19006 dated as of 13th June, 1932 and No. 19157 dated as of the 29th August, 1932. 31. It is to be observed in passing that although in sec. 31. It is to be observed in passing that although in sec. 128 of the CPC power is given to a High Court to make Rules for procedure in suits by way of counter claims and although in item No. 5 in the Table of court-fees set out in Chapter XXXVI of the Rules and Orders of this High Court a certain fee is prescribed for a written statement containing a counter claim, no appropriate Rules of procedure by way of counter claim have as yet been made by this Court and, therefore, it must be taken that it was not possible for the Defendants in the infringement suit to obtain in that suit an order for revocation of the Letters Patent. The position is of course otherwise in England where it is quite usual and proper to add to the defence in an action for infringement a counter claim for revocation of the Letters Patent alleged to have been infringed. In the present case however, for all practical purposes, when the two sets of legal proceedings ultimately came before the Court of first instance there was on the one hand a claim for infringement and on the other a denial of any infringement and a cross-claim for revocation of the Letters Patent said to have been infringed. The history of the proceedings after the pleadings had been closed was, in brief, as follows:-- 32. On the 19th of March, 1936, the hearing of the proceedings in the matter of the revocation petition was commenced before Mr. Justice Ameer Ali and on the next day issues were settled in the following form:-- 1 Was the invention included of no utility? Sec. 26 (1) (a), objections 4 and 9. 2. Was the invention included an invention ? Sec. 26 (1) (b), objection 3, particulars 1. 3. Was the invention included a new invention ? Sec. 26 (1) (b) and (c). Prior and public user and prior and public knowledge. Sec. 38. Petition, paragraphs 2 and 9. Objections No. 2. Particulars.  4. Was the Respondent not the true and first inventor? Sec. 28 (1) (c). Petitions 2 and 8 Objection No. 2. Particulars. 5. Did the applicant knowingly and fraudulently include as his invention something which was not new or whereof he was not the first and true inventor? Sec. 26 (i) (e), objections 5 and 6. 6. Particulars.  4. Was the Respondent not the true and first inventor? Sec. 28 (1) (c). Petitions 2 and 8 Objection No. 2. Particulars. 5. Did the applicant knowingly and fraudulently include as his invention something which was not new or whereof he was not the first and true inventor? Sec. 26 (i) (e), objections 5 and 6. 6. Does the application contain any wilful and fraudulent mistatement? Sec. 26 (1) (f), objections 7 and 9. 7. (a) Does the application fulfil the requirements of the Act? Sao. 26 (1) (d), objection 10. (b) Was the invention or the manner in which it is to be made and used as described in the specification insufficient and was this insufficiency fraudulent or injurious to the public? 33. In connection with these issues the learned Judge enquired of Mr. Barwell who was then appearing for the Hermann Nier firm whether he wished to take a preliminary point with regard to the Petitioners' status and the Judge then made a note that Mr. Barwell did desire to take the preliminary point that the Petitioners had no locus standi for bringing proceedings for revocation. The Judge's observation is as follows: Mr. Barwell tells me that he does not wish to take the point as a plea in bar. I understand, however, that Mr. Barwell will contend as a matter of law that if the petitioner does not succeed in establishing his status he will not be entitled to ask for revocation on any ground which is not included in the grounds for status, 34. The point there referred to is of some importance in connection with these appeals, because Mr. Page appearing on behalf of the Appellants, the Hermann Nier firm, definitely raised and argued the question of whether the Petitioners had any legal right to institute proceedings for revocation. The trial proceeded and on the 19th of March and the ensuing days several witnesses were examined on behalf of the Petitioners. Then on the 23rd of March an adjournment was asked for and obtained by the Petitioners for the purpose of giving them an opportunity of making an application to the Advocate-General of Bengal for a Fiat so that the Petitioners might put themselves within the provisions of sec. 26 (2) (a) of the Indian Patents and Designs Act, 1911. Then on the 23rd of March an adjournment was asked for and obtained by the Petitioners for the purpose of giving them an opportunity of making an application to the Advocate-General of Bengal for a Fiat so that the Petitioners might put themselves within the provisions of sec. 26 (2) (a) of the Indian Patents and Designs Act, 1911. An application for a Fiat was in fact made to the Advocate-General on the 4th of April, 1936, but the application was-- on the 8th of April--refused. The reason why it was refused is not at all clear nor understandable though Mr. Justice Ameer Ali on the 20th of April, 1936, when allowing an application for another adjournment of the revocation proceedings stated that-- Amongst the grounds set forth in order to obtain the fiat in accordance with English practice a statement was included to the effect that there was no other suit or proceedings pending in which the matters in issue could be decided. The Respondents appeared before the Advocate General and inter alia contended that the infringement suit is such a proceeding. Mr. Clough suggests that this was the ground which induced the Advocate-General to refuse his fist, and having regard to the facts of the case this may well be so." 35. The last mentioned application for adjournment was made on the ground that the matters in issue in the revocation proceedings "are effectively in issue in the infringement suit." The Judge remarked: He"(Mr. Clough) "realises that to proceed with this proceeding would mean to risk failing to establish status and to fail on the technical point or points already referred to. He desires to avoid this risk. Alternatively he has suggested that the evidence in this proceeding should, by consent, be used in the infringement suit, 36. The learned Judge then says: I consider it undesirable in the circumstances to go on hearing this proceeding, taking up the time of the Court and involving the parties in expense which may be wasted. I think the matter substantially in issue ought to be tried out in full, and it can be so tried in the other suit. 37. Thereupon he made an order that the petition should stand over and that it should be placed in the list immediately after the infringement suit. I think the matter substantially in issue ought to be tried out in full, and it can be so tried in the other suit. 37. Thereupon he made an order that the petition should stand over and that it should be placed in the list immediately after the infringement suit. This was obviously a reasonable and convenient way of dealing with the matter, seeing that every ground on which a Patent may be revoked is available by way of defence to a suit for infringement: see Indian Patents and Designs Act, 1911, sec 29 (2). The two matters of the revocation proceedings and the infringement suit were in fact very closely interwoven and eventually the evidence given in the one was used and treated as if it had been given in the other, and thus the revocation proceedings and the infringement suit in substance, though not in form, became united. 38. That a fiat was refused by the Advocate-General is a fact of considerable importance when one comes to consider the question of how far the Petitioners were entitled to institute the proceedings for revocation and to examine the extent of their rights even if it be held that they establish that they come within the provisions of sec. 26 (2) (b) of the Act. 39. Following the Order which I have just quoted the next thing that happened in connection with these proceedings occurred in January, 1937. In that month the Hermann Nier firm applied to the Court under the provisions of sec. 18 of the Indian Patents and Designs Act, 1911, for leave to amend specification on which the Letters Patent No. 19006 of 1932 had been granted. The necessary statutory advertisements were duly published and on the 2nd of February, 1937, an order was made by the Court that the Harmann Nier firm should be allowed to amend their specification in certain particulars with the consequence that the matters in dispute between the parties in their final shape were dealt with by the Court and determined, upon the basis of the amended specification and it is really with that specification that we are principally concerned in these appeals. On the same day that the Order for amendment was made (2nd February, 1937) issues were settled in the infringement suit in the form set out at p. 44 of the Paper Book in Appeal No. 62 of 1937. On the same day that the Order for amendment was made (2nd February, 1937) issues were settled in the infringement suit in the form set out at p. 44 of the Paper Book in Appeal No. 62 of 1937. They were as follows: 1. Were the lanterns referred to in the particulars of the plaint so constructed as to infringe claiming clauses of Indian Letters Patent 19006 ? 2. Were the lanterns referred to in the particulars of the plaint so constructed as to infringe the claiming clauses of Indian Letters Patent 19157 ? 3. Is the Indian Letters Patent 19006 invalid as alleged and for the reasons or any of them set out in the written statement and the particulars ? 4. Is the Indian Letters Patent 19157 invalid as alleged and for the reasons or any of them set out in the written statement and the particulars? 5. If the Letters Patent 19006 and 19157 or either of them is invalid, is the Defendant entitled to an order for revocation of the same or either of them ? 6. At the date of the alleged infringement was the Defendant Das aware or had he reasonable means of making himself aware of the existence of the Plaintiffs' Letters Patent or either of them ? 7. To what relief if any the Plaintiff entitled? 40. The hearing of the suit extended over a great many days and then the judgment was reserved. On the 2nd of March, 1937, Mr. Justice Ameer Ali gave a judgment the opening words of which were as follows: These proceedings(I refer to the suit in which judgment is being given, the suit for infringement No. 2203 of 1935, as also the suit or proceeding for revocation) relate to two specifications, specification No. 19006 of the 13th June, 1932, and Specification No. 19157 of the 29th August, 1932. The first relates to, what I may call loosely, a whole hurricane lantern, the second only to a very minor part, the wire-guard. Both are, to my mind, difficult matters, but for very different reasons. They depend upon entirely different considerations and 1 will therefore treat them separately. 41. The first relates to, what I may call loosely, a whole hurricane lantern, the second only to a very minor part, the wire-guard. Both are, to my mind, difficult matters, but for very different reasons. They depend upon entirely different considerations and 1 will therefore treat them separately. 41. The judgment delivered on the 2nd March, 1937, actually only related to the specification No. 19006 and although the learned Judge dealt with most of the questions in controversy between the parties he did not on that date deal with the specification No. 19157; nor did he give formal judgment upon the matter of revocation. The second specification was dealt with in another judgment--on the 18th of March, 1937 --but, as previously stated, there is not before us any appeal from that particular judgment, and we are not concerned with it. 42. Put shortly, the judgment of the 2nd March, 1937, was to the effect that the Letters Patent No. 19006 were invalid and that in any event there had been no infringement of them. It seems that subsequently it was brought to the attention of the trial Judge that to quote his own words " no judgment was given in this matter " (the revocation proceedings) " as distinct from the judgment in the infringement suit," and accordingly on the 10th of June the learned Judge delivered a supplementary judgment in the course of which he said: "I think that the applicants were entitled to bring on their application for revocation and were entitled to continue with it, notwithstanding that the infringement suit was filed. There was no knowing when that infringement suit would be ready for trial, and in the earlier stages there was no prospect of the infringement action being expedited. There is the question of the Sat and the technical point taken with reference to sec. 26 of the Indian Patent Act. It is quite true that the fiat was ultimately refused and possibly refused, on the ground that the infringement action was already pending, but the Respondents had failed upon the substance of the matter and on the merits, and apart from that technical question which ultimately, quite rightly, has not been agitated, they would have succeeded in the other matter. There will, therefore, be the usual order for revocation with costs of the proceedings. 43. There will, therefore, be the usual order for revocation with costs of the proceedings. 43. The learned Judge added this significant observation: This order will be treated as a decree and proceedings, if thought lit, may be numbered. 44. In point of fact the Order of revocation when drawn up was not at all drawn up in the form of a decree but in the usual form of an Order, and it is difficult to see how it could have been otherwise. 45. The operative part is in these terms:-- It is ordered that the Letters Patent. No. 19006 of 1932, dated the thirteenth day of June, one thousand nine hundred and thirty two for the improvement of Hurricane Lamps in the pleadings herein mentioned granted to the said Respondent on the eighteenth day of August one thousand nine hundred and thirty three be and the same is hereby revoked. 46. The precise form of the Order made by the learned Judge is of importance as it has enabled Mr. S. M. Bose appearing on behalf of the Respondents in these appeals to agitate the question of whether or not there is any right of appeal in revocation proceedings. 47. The subsequent history of the litigation is that on the 21st of August, 1937, the Hermann Nier firm filed a Memorandum of Appeal in the infringement suit and on the 26th of August, 1937, they filed a Memorandum of Appeal against the Order for revocation. Subsequently the Defendants filed a cross-objection calling in question that part of the judgment of the learned Judge which dealt with Patent No. 19157. That appeal was subsequently abandoned. 48. At the hearing of the appeals Mr. Walter Page appearing on behalf of the Appellants, the Hermann Nier firm, did not seriously argue against the decision of the trial Judge in so far as it dealt with the question of infringement. The learned Judge had come to the conclusion that whatever might be the correct view as to the validity of the Letters Patent, the R. E. Diets Co.'s (Inc.) lantern known as the " Comet" was not an infringement because it only gave a light of about 4 candle power and no more and so could not be in any way an imitation of a lantern supposed to produce a light of six candle power. 49. 49. The learned Judge summarised his conclusions generally in this way: It follows that Nier's improvement falls outside the area of good subject matter, It is not invention, or alternatively, not new invention. This is sufficient to dispose of this case. My findings categorically are as follows: (1) The size and candle power of the Comet bring the Defendants' lantern within the charmed circle of below o. c. 120 C. P. 1 of Mr. Barwell's principle. (2) Mr. Harwell's principle is not claimed in the specification. (3) Mr. Barwell's principle, if claimed, is not good subject matter; it is not an invention and it is not new. (4) The specification is ambiguous, i e., the ambit of the monopoly is not properly defined. (5) If Mr. Barwell's principle is disclosed, and is good subject matter, I see do insufficiency as regards directions. On any other basis, I consider the directions insufficient, (6) I do not "consider", that the patentee has made any willful misstatement of facts. 50. We have no doubt whatever that the Judge was quite right in the view he took as regards the question of infringement in that the lantern known as the "Comet" was not of such a candle power as would come within the ambit of the specification and so in any event the infringement suit was bound to fail having regard to the findings I have just enumerated. I have already pointed out, that in this country it is at present not open to a Defendant in an infringement suit to set up a counter claim for revocation and that he must for the purpose of obtaining revocation take separate proceedings and so if no such proceedings are taken or if it is the law that the decision of a Judge sitting at first instance in revocation proceedings cannot be challenged in appeal, an anomalous and awkward situation would inevitably arise in all cases where a suit for infringement was dismissed on the ground that there was no infringement because there was no valid Patent and yet no order could be made revoking that Patent. The Defendant in an infringement suit might thus easily find himself in the position of having been successful in that suit, and yet in his commercial activities still confronted by the existence of Letters Patent ostensibly adverse to his trading interests. The Defendant in an infringement suit might thus easily find himself in the position of having been successful in that suit, and yet in his commercial activities still confronted by the existence of Letters Patent ostensibly adverse to his trading interests. One may perhaps, therefore, venture to observe that whether or not it is desirable that provision should be made for the filing of counter-claims in ordinary suits it does obviously seem to be just and convenient that procedure by way of counter claims--analogous to that which obtains in England --should be provided for and made permissible in all suits for infringement of Patents. 51. I have indicated that Mr. S. M. Bose on behalf of the Respondents in connection with Appeal No. 66 of 1937 took a preliminary point raising the question of whether any appeal lies against an order of the Court in favour of the Petitioner in proceedings for revocation. The point was fully argued before us on both sides and it is, therefore, necessary that we should deal with it and express some opinion thereon. At the outset it is perhaps useful to re-call the significant observations of Lord Bramwell (then Bramwell, L. J.) in the well-known case of Sandback Charity Trustees v. North Staffordshire Railway Company L. R. 3 Q B.D. 1 (1877), where at p. 4 he said "an appeal does not exist in the nature of things: a right to appeal from any decision of any tribunal must be given by express enactment." 52. The question, therefore, arises whether there are provisions in any enactment in this country providing for an appeal from a decision given by a Judge sitting in the Original Civil Jurisdiction of this Court sufficient in its extent to cover a case of the kind we are now considering. Mr. Bose pointed out that no right of appeal in revocation proceedings in England is conferred by the Patent and Designs Act of 1907 or the amending acts themselves: but the wording of sec. 27 of the Judicature Act of 1925 is wide enough to cover the matter. The Indian Patents Act of 1911 equally with its English prototype does not contain any express provisions for an appeal in revocation proceedings. There is however a provision in sec. 27 of the Judicature Act of 1925 is wide enough to cover the matter. The Indian Patents Act of 1911 equally with its English prototype does not contain any express provisions for an appeal in revocation proceedings. There is however a provision in sec. 35 (2) of the Act which seems to indicate that such a right of appeal is assumed to exist and as revocation proceedings can only be brought in the High Court that assumption is of course of considerable importance in the present instance. 53. Mr. Bose, however, contended that a right of appeal cannot come into existence or be conferred merely by way of implication and, therefore, the present Appellants mustering themselves within the terms of cl. 15 of the Letters Patent of this Court as being the only enactment which can be of any assistance to them. No doubt that is so, and Mr. Page on behalf of the Appellants did not seek to argue otherwise, but, on the contrary maintained that the provisions of cl. 15 are fully wide enough to embrace within them a decision of the High Court exercising Original Jurisdiction and making a pronouncement in proceedings for revocation of a Patent. It is to be observed that Appeal No. 66 of 1937 is actually described as an " Appeal from Original Order " and Mr. Page was quite content to accept the position that the decision given by Mr. Justice Ameer Ali on the 10th of June, 1937, and the order drawn up in accordance with the direction then given were in their nature no more than an " order." But he proceeded to argue that the word " judgment " in cl. 15 of the Letters Patent included an order of this kind particularly having regard to the effect of the words now contained in the brackets following the word "judgment" in that clause. 54. Mr. Page further said that in any event the matter would fall within the well-known definition of "judgment" given by Couch, C. J., in the oft-quoted case of The Justices of the Peace for Calcutta v. The Oriental Gas Company 8 Beng. L. R. 433(1872) and Mr. Page contended that the decision given by Mr. Justice Ameer Ali was one of such a nature that it affected the merits of the question between the parties by determining some right or liability. L. R. 433(1872) and Mr. Page contended that the decision given by Mr. Justice Ameer Ali was one of such a nature that it affected the merits of the question between the parties by determining some right or liability. It is of course the fact that the case I have just cited is usually regarded in this Court as the locus classicus and the determining authority by which any question as to whether an appeal lies or not is to be decided. 55. Mr. Bose, however, argued that we ought to have regard to the more restricted definition of the word " judgment " contained in the decision of the Full Bench of the Rangoon High Court in the case of In re Dayabhai Jiwandas v. A, M. M. Murugappa Chetttiar I. L. R. J3 Rang. 457 (F. B.) (1935), where Sir Arthur Page, basing himself on three decisions of the Judicial Committee of the Privy Council, namely, the cases of Sevak Jeranchod v. The Dakore Temple Committee 30 C. W. N. 459 (P. C.) (1915) and Tata Iron and Steel Co. v. Chief Revenue Authority, Bombay I. L. R. 47 Bom. 724:s. c. 28 C. W. N. 307 (P. C.) (1923) and Sabitri Thalcurain v. Savi L. R. 48 I. A. 761 s. c. I. L. R. 48 Cal 481; 25 C. W. N. 557 (1921), assigned a much more restricted meaning to the word "judgment" as used in that clause of the Letters Patent of the Rangoon High Court which corresponds--in exact terms--to cl. 15 of the Letters Patent of this Court. I have on several previous occasions stated that personally I am inclined to agree with the views of Sir Arthur Page. 56. The question whether the dicta of their Lordships of the Judicial Committee of the Privy Council which are cited by Sir Arthur Page, expressly or impliedly ought to be taken to prevail as against the definition given by Couch, C. J. and other decisions of this and of the other High Courts in India has been canvassed in this Court time and time again. It is very much to be desired that this vexed question should be authoritatively determined once and for all either by a decision of the Judicial Committee of the Privy. Council or by a clarifying of the Letters Patent by an appropriate amendment or else by legislation. It is very much to be desired that this vexed question should be authoritatively determined once and for all either by a decision of the Judicial Committee of the Privy. Council or by a clarifying of the Letters Patent by an appropriate amendment or else by legislation. The question is invariably raised whenever there seems a possibility of a Respondent defeating an Appellant by contending that the latter is not entitled to a right of appeal at all. I do not think it necessary however for present purposes to embark once more upon a detailed discussion of this time-worn controversy, because, in my view, it is quite possible to say that despite the precise form of the Order of the 10th of June, 1937, the decision pronounced by Ameer Ali, J., has to all intents and purposes the same effect as, the making of a decree. It is to be remembered that the direction given by the learned Judge was this: " This order will be treated and drawn up as a decree and the proceedings, if thought fit, may be numbered," though of course neither such a direction nor any changing about of the form of the order could confer a right of appeal, if no such right previously existed. 57. It is perhaps not without some significance that Messrs. R. Remfry & Sons acting on behalf of the Hermann Nier firm, in their letter of the 29th of August, 1935, referred to the proceedings which had then just been filed, that is to say, the revocation proceedings, as " the above suit." Mr. Remfry said in this letter: 58. " I shall be glad if you will let me know the position and serve the writ of summons herein on me as Attorney for the Defendants and also send me the copy plaint on usual terms." Of course it may be said that that was an inaccurate use of language and that it was not correct to describe the revocation proceedings as a suit or to describe the initiating document as a " plaint" for there is no doubt, proceedings for revocation are technically of a different character from an action at law and indeed it was held in the case of North Eastern Marine Engineering Co. v. Leeds Forge Co. [1909] 2 Ch. v. Leeds Forge Co. [1909] 2 Ch. 498: 23 R. P. C. 629 that an action cannot be brought claiming a declaration that a patent is invalid, the proper course being to petition for revocation. 59. Nevertheless I think we may take it that for all practical purposes in relation to the provisions of cl. 15 of the Letters Patent, proceedings for revocation may be regarded as being upon the same footing as those in a suit inter partes. In this connection reference may usefully be made to the case of In re Goulard & Gibbs' Patent L. R. 34 Ch. Div. 306 (1887). 60. The matters in dispute between the R. E. Dietz Company (Inc.) and the Hermann Nier firm were tried out on evidence and we think that Mr. Page Was quite right in urging that there was a real litis contestatio between the parties. Therefore, despite the exact form of the order of the 10th of June, 1937, it is perhaps not unreasonable to hold that the decision given by Ameer Ali, J., was a " judgment" within the meaning of cl. 15 of the Letters Patent. The Memorandum of Appeal sets out: "The Appellants above-named appeal from the judgment and order of the Hon'ble Mr. Justice Ameer Ali and passed on the 10th of June, 1937." I am, therefore, disposed to take the view that a right of appeal does exist even if one has to apply the more rigid interpretation of the word "judgment" ascribed to it by the Chief Justice of Burma in the case of In re Dayabhai Jiwandas I. L. R. 13 Rang. 457 (F. B.) (1936). If on the other hand, in the present state of authorities in the High Courts other than Rangoon, one ought to adhere to the definition given by Couch, C. J., that being the criterion generally applied in this High Court, there seems no doubt that the decision in the revocation proceeding was one Which affected the merits of the question between the parties by determining some right or liability and so the decision can be challenged by way of an appeal on that ground alone. A somewhat more difficult point now to be considered and one which fundamentally affects the rights of the R. E. Dietz Company (Inc.) to pursue the proceedings for revocation of the patent is the question whether they were persons properly qualified to institute proceedings of this nature. This point was raised before us by Mr. Page at an early state of his argument and was described by him as one concerned with status. The legal proceedings appropriate to the obtaining of the revocation of a, patent in this country are provided for by sec. 26 of the Indian Patents and Designs Act of 1911. Sub-sec. (2) of that section says: A petition for revocation of a patent may be presented-- (a) by the Advocate-General or any person authorised by him: or (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 my trade, business or manufacture, had publicly manufactured, used or sold, within British India, before the date of the patent, anything claimed by the Patentee as his invention. 61. The present proceedings for revocation of the Patent No. 19006 of 1932 were of course not presented by the Advocate-General, nor were they presented by any person authorised by him, for, as previously shown, the R. E. Dietz Company (Inc.) had no authority from the Advocate-General at the time when the petition for revocation was launched and their subsequent attempt to obtain such authority in the form of a fiat was unsuccessful. It follows, therefore, that before they can " cross the threshold," to use Mr. Page's graphic but apt expression, they must bring themselves within one or other of the qualifications laid down in sub-sec. (2) (6) of sec. 26. Mr. Page contended that this they had wholly failed to do. He argued that the Petitioners had no fiat and no other status. 62. The Petitioners themselves contend that they come within the provisions of sec. (2) (6) of sec. 26. Mr. Page contended that this they had wholly failed to do. He argued that the Petitioners had no fiat and no other status. 62. The Petitioners themselves contend that they come within the provisions of sec. 26 (2) (6) (iii) in that they were persons who had publicly manufactured, used or sold, within British India, before the date of the paten', the very kind of thing which was being claimed by the patentees as their own peculiar invention. This question of status, as will be seen from the issues already set forth, seems to have been raised at an early stage of the proceedings before Ameer Ali, J., though in terms it was not taken in the " pleadings." It does however appear that at the time when the issues were being settled Mr. Bar well on behalf of the Respondents did indicate to the Court that he would at some stage or other take the objection that the Petitioners had no standing in what was described as " this action." 63. Mr. Clough on behalf of the Petitioners on the other hand contended that this point not having been set up in the answer to the petition the learned Judge ought not to have allowed any issue of the kind to be discussed at all. The learned Judge stated that no specific; point had been taken that the Petitioners had no status and he then went on to say that if Mr. Barwell desired to raise the matter as a plea in bar, he (the Judge) would have to consider the question whether this should be permitted without having been distinctly pleaded and the learned Judge added " As at present advised I think it should not be permitted and I rule to this effect. But this does not conclude the matter." 64. Exactly what that observation meant and what the subsequent history of " the matter" proved to be is by no means easy to discover, for the learned Judge does not seem ever to have come to any definite finding upon the point. But although there was no clear finding at the trial as in the status of the Petitioners the point was definitely raised in the Memorandum of Appeal; para. But although there was no clear finding at the trial as in the status of the Petitioners the point was definitely raised in the Memorandum of Appeal; para. 31 of which runs as follows:-- For that inasmuch as the learned Judge has not found in favour of the Respondents upon any allegations falling within the scope of cub-clauses (i), (it) or (iii) or clause (b) of sec. 26 (3) of the Indian Patents and Designs Act 1911, and inasmuch as the petition for revocation was not presented by the Advocate-General of Bengal and inasmuch as the Respondents did not first obtain and had tot at the date of the judgment herein appealed from, obtained a fiat of authority by the said Advocate-General, the Respondents were not entitled to an order revoking the said Letters Patent and the learned Judge should have so held. 65. In his judgment of the 10th of June, 1937, the learned Judge refers to the point in these terms: There is the question of the Gat and the technical point taken with reference to sec. 26 of the Indian Patent Act. It is quite true that the fiat was ultimately refused and possibly refused, on the ground that the infringement action was already pending, but the Respondents had failed upon the Substance of the matter and on the merits, and apart from that technical question which ultimately, quite rightly, has not been agitated. 66. It would appear, therefore, that we ought to deal with this point upon the footing that although unquestionably at an early stage of the case it was in fact raised it was never afterwards seriously pressed and that the ensuing position was that it was tacitly assumed between the parties that the Petitioners were in fact duly qualified and so entitled to " cross the threshold." It may well be that this assumption was arrived at upon the basis that for the purpose of entitling a person not armed with the authority of the Advocate-General, to bring proceedings for revocation, it is sufficient to give him the requisite status if he merely " alleges " or at any rate, if he " seriously alleges " that he is a person who comes within any of the categories mentioned in sec. 2G (2) (6). 2G (2) (6). The question of whether it is indeed sufficient if a person merely alleges that he is a duly qualified Petitioner, is one not entirely free from doubt, for we find it stated in Terrell on Patents on the authority of the case of Avery's Patent [1887] 4 R. P. C. 322 at p. 326 and that of the Traction Corporation v. Bennett [1808] 25 R, P. C. 819 at p. 822 that it is doubtful whether a Petitioner can rely on any ground other than those stated in sec. 26 (2) (6) in cases where he cannot establish his locus. Terrell asserts that petitions have invariably been adjourned in cases where the Petitioner desired to rely upon a ground of invalidity other than those giving a locus--in order that a fiat might be obtained, see Dege's Patent [1895] 12 R P.C. 48. Jameson's Patent [1902] 19 R. P. C. 248 at p.250 and Max Mutter's Patent. [1907] 2t R. P. O, 465. Terrell therefore, expresses the opinion that " a merely formal allegation of any of the grounds specified in sec. 25, sub-sec. (4) (b) " [of the English Act: (which section corresponds to the Indian sec. 26(2) (6))] "would not be sufficient"; but he adds this important observation " it is submitted that, having regard to the wording of the sub-section, a, bond fide and substantial allegation should be sufficient to give the Petitioner a locus which would enable him to rely also upon other grounds." 67. Mr. Charles Ormond in his excellent book on the Patent Law of India, founding himself upon the passage in Terrell to which I have referred and also on Frost (4th Edn.), p. 292 note (r) makes the following comments: In regard to the proper construction of this phrase where it occurs in the corresponding wording of the English Act, it has been suggested that a mere unfounded allegation will not be sufficient to give a petitioner the requisite status to move a petition for revocation. But on the wording of the section it would seem doubtful, in a case where the requisite allegations are contained in the petition, whether anything more can be insisted upon by way of a condition precedent to the petitioner's having a right to be heard by the Court. But on the wording of the section it would seem doubtful, in a case where the requisite allegations are contained in the petition, whether anything more can be insisted upon by way of a condition precedent to the petitioner's having a right to be heard by the Court. In any event where there is no reason to suppose that the petitioner's allegations contained in the petition are not bond fide, it would seem that on the wording of the section [sec ?6 (2) (b) of the Indian Act] the making of the allegations in the petition, without more, will be sufficient to give 'the petitioner the right to be heard. 68. With what is stated in that passage I entirely agree and it seems to me that it is only reasonable and just to hold that a substantial allegation seriously made ought to be sufficient effectively to endow a Petitioner with the right to carry on proceedings for revocation even in the absence of the authority of the Advocate-General. To hold otherwise would lead to the inconvenient and somewhat anomalous and indeed almost absurd position that in order to give himself an initial locus standi under sec. 26 (2) (b) (iii) the Petitioner (as Mr. Page himself realised) would in effect have to admit that he had done the very thing complained of in concurrent proceedings for infringement of the Patent in question. Moreover in effect, the matter of the petition would have to be fully heard and tried out to a finish in order to ascertain whether the Petitioner had established the conditions laid down in any of the sub-paragraphs in sub-sec. (2) (b), and if it were then decided that he had successfully done so he would be in this position that in establishing his right to present the petition he would at the same time have established his right to have the petition granted and the patent against which it was presented revoked. 69. It was urged by Mr. Bose on behalf of the Petitioners in the present instance that they come well within the terms of sec. 26 (2) (b) (iii). Mr. 69. It was urged by Mr. Bose on behalf of the Petitioners in the present instance that they come well within the terms of sec. 26 (2) (b) (iii). Mr. Bose urged that even if the mere "alleging" is not sufficient, the Petitioners have, by means of the evidence given in the proceedings, established at one and the same time not only their right to come in, but also their right to the relief they claimed. 70. The question whether the R. E. Dietz Company (Inc.) had in fact publicly manufactured, used or sold, within British India, before the date of the Patent something which was claimed by the Hermann Nier firm as their invention must be touched upon later. For the moment it is sufficient to say that in my opinion they were qualified Petitioners in that they did make a bond fide and substantial allegation to that effect. 71. The question then arises as to whether a person qualified under sec. 26 (2) (b) is confined to the grounds of invalidity giving him his locus to present the petition or whether he may also rely on other grounds, namely, those set forth in sec. 26 (1) of the Indian Act. As to this there does not seem to be any reasonable doubt [see Morgan's Patent [1888] 5 R. P. C. 186 at p. 187 and The Traction Corporation v. Bennett [1908] 25 R. P. C. 819 at p. 822]. 72. Mr. Page complained that the Petitioners had relied mainly on want of " subject-matter " as a ground for revocation of the patent and he argued that that was not a ground upon which the Petitioners were entitled to rely. As previously stated it was, however, mainly on that ground that the learned Judge decided in favour of the Petitioners. Mr. Bose in arguing the case for the Respondents said that he relied on the grounds set forth in sec. 26 (1) (a), (b), (d) and (g). The contentions put forward on behalf of the Respondents may be summarised thus: there was no invention at all, or if there was, it was not new, and that in any event it was not sufficiently described either in the original or in the amended specification. 26 (1) (a), (b), (d) and (g). The contentions put forward on behalf of the Respondents may be summarised thus: there was no invention at all, or if there was, it was not new, and that in any event it was not sufficiently described either in the original or in the amended specification. Put still more shortly, the case for the original Petitioners (Respondents to the appeal) was that there was ambiguity and/or insufficiency as regards the specification, and that the so called invention was not a thing which could properly be the subject-matter of an "invention" for the purpose of obtaining a monopoly or protection by means of Letters Patent under the provisions of the Indian Patents Act. 73. I have already set forth the learned Judge's findings to the effect that the specification was ambiguous, i.e., the ambit of the monopoly was not properly defined and there was insufficiency as regards the directions contained in the specification, and that upon the main point he said that the principle contended for on behalf of the Hermann Nier firm is not claimed in the specification, and even if it were, it was not " good subject-matter." It was not an invention and it was not new. 74. Before proceeding to deal in detail with the actual facts of the case it is perhaps desirable to state what it is that in this country can lawfully be the subject-matter of a valid patent. We find it laid down in sec. 2 (8) of the Indian Act that " invention " means any manner of new manufacture and includes an improvement and an alleged invention. In sub-sec. (10) "manufacture " includes any art, process or manner of producing, preparing or making an article, and also any article prepared or produced by manufacture. 75. As previously stated, Mr. Page strenuously contended that the Respondents to this appeal as the Petitioners in the revocation proceedings were not entitled to raise the question of want of subject-matter and he so contended on the ground that there is no specific provision in sec. 26 of the Indian Act covering this point such as now finds a place in the English Patent Act and that the objection " no subject-matter " does not lie under any of the provisions set out in sec, 26 of the Indian Act and thus Mr. 26 of the Indian Act covering this point such as now finds a place in the English Patent Act and that the objection " no subject-matter " does not lie under any of the provisions set out in sec, 26 of the Indian Act and thus Mr. Bose's argument that his clients could rely upon sub-sec. (1) (6) of sec. 26 had no substance in-it; want of novelty not being the same thing as want of subject-matter. Upon this point the authorities are by no means uniform and Mr. Page in this connection relied upon the case of The Edison Bell Phonograph Corporation, Limited v. Smith and Young [1894] 11 R. P.C. 389 in which at page 398 the Master of the Rolls said: What is the meaning of want of subject-matter ? It is not the same thing as want of invention, or rather I should say as want of novelty: It is not the same thing as want of utility, but where you cannot maintain either of these propositions which would be sufficient to destroy the patent, it is some-thing else, which some one or other, at some time has invented as an idea for destroying patents. And what is it? It really comes to this, that although the invention is new--that is, that nobody has thought of it before--and although it is useful, yet, when you consider it, you come to the conclusion that it is so easy, so palpable, that everybody who thought for a moment would come to the same conclusion; or, in more homely language, hardly judicial, but rather business-like, it comes to this, it is so easy that any fool could do it. Well, I look, as I say, upon that objection, when all others have failed generally with amused contempt. It can be made out, but hardly ever. When you find that which I have stated, it is hard to think that people would be buying and selling a thing--and that has been sometimes the whole thing--and yet the objection should be taken that it is wanting in subject-matter. 76. Mr. Bose on the other hand said that the matter was definitely decided so far as India is concerned in the case of Lallubhai Chakubhai Jariwalla v. Chimanlal Chunilal & Co. I. L. R. 60 Bom. 261 (1935), where Mr. 76. Mr. Bose on the other hand said that the matter was definitely decided so far as India is concerned in the case of Lallubhai Chakubhai Jariwalla v. Chimanlal Chunilal & Co. I. L. R. 60 Bom. 261 (1935), where Mr. Justice Wadia at page 278 said: The two features necessary to the validity of a patent are novelty and utility, but the real test is the novelty of the invention. Novelty is essential, for otherwise there would be no benefit given to the public and consequently no consideration moving from the patentee. The plea of want of subject-matter is included in the plea of want of novelty. Under sec. 38 of the Act an invention shall be deemed a new invention (a) if it has not, before the date of the application for a patent there on, been publicly used in any part of British India or made publicly known ' in any part of British India, and (b) if the inventor has not by secret or experimental user made direct or (indirect profits from his invention in excess of what the Court may deem reasonable in consideration of all the circumstances of the case. There must, therefore, be an absence of prior publication or of prior public user. 77. See also in this connection Bhathey Sundara Rajau v. A.A. Kuppusami Iyer 27 Mad, L. J. 573 (1914), per Sir John Wallis. A. C. J., at page 574, 78. Sec. 38 of the Indian Act which deals with novelty of invention does, at first sight, seem to put some obstacle in the way of accepting the proposition that the plea of want of subject-matter is included in the plea of want of novelty. Mr. Bose sought to get over the difficulty apparently created by the provisions of that section by arguing that there may be two kinds of newness, or the lack of it, namely, absolute and statutory and he asked us to take the view that as there is no special provision in sec. 26 for allowing the Petitioners to say that the article or thing covered by the Letters Patent is not new that must be taken to indicate that under sec. 26 (1) (b) the thing patented can be challenged both on the ground that it is not an invention and that it is not new. 26 for allowing the Petitioners to say that the article or thing covered by the Letters Patent is not new that must be taken to indicate that under sec. 26 (1) (b) the thing patented can be challenged both on the ground that it is not an invention and that it is not new. In other words, to contend that any invention included in a statement of claim is not at the date of application for the patent a new invention raises both the question of its novelty and the question of whether it is an invention at all within the meaning of the definition contained in sec. 2 of the Act and that is tantamount to saying that there is no subject-matter. 79. It is stated in Halsbury's Laws of England (Vol. XXIV, p. 588, para. 1119) that the objection that novelty does not appertain to the manufacture is commonly referred to as want of subject-matter. It cannot arise unless some degree of novelty is present but it is often so closely connected with the objection based on want of novelty that it is impossible to treat the decisions on the two heads separately. See Gadd & Mason v. Manchester Corporation [1892] 9 R. P. C. 518, per Ludley, L. J., at p. 525: Re: Max Muller's Patent [1907] 24 R. P. C. 465 at p. 479, Wilson v. Wilson Brothers Bobbin Co., Ltd. [1911] 28 R. P. C. 721, per Fletcher Moulton, L. J., at p. 737: These cases are rather in opposition to the views of Lord Esher in The Edison Bell Phonograph Corporation, Ltd. v. Smith [1894] 11 R. P. C. 389 above-quoted. It would appear that in the older English cases questions of novelty and subject-matter were often pleaded or put to the jury under one heading. For example " was the alleged invention new " ? or was the " patentee the true and just inventor "? and the jury were left to decide the question of the substantial identity of the alleged invention with what had been previously known. 80. For example " was the alleged invention new " ? or was the " patentee the true and just inventor "? and the jury were left to decide the question of the substantial identity of the alleged invention with what had been previously known. 80. I do not think it necessary to express a definite opinion as to whether the broad proposition laid down by Wadia, J., in the Bombay High Court is one to be unqualifiedly accepted in this country or not, for upon a full consideration of the English authorities and practice I take the view that it is quite competent to a Petitioner in revocation proceedings to contend under the provisions of sec. 26 (1) (b) that an invention claimed by the patentees is neither a novelty nor a patentable invention and thus, in effect, to raise the whole question as one of subject-matter. I now come to the facts of the case. The gist of the case for the Appellants, the Hermann Nier firm, is accurately summarised in paragraph 4 of their opponents' petition in the revocation proceedings which, it may be recalled, states: The Respondent Corporation claims to have a monopoly in the right to manufacture and to Bell in India hurricane lamps of a small size and in particular hurricane lamps of whatever construction which are so reduced in size that in a lamp of an illuminating capacity of 6 Hefner Candles the air chamber above the sieve plate is 420 o, c. or lees, and hurricane lamps of whatever illuminating capacity which are so constructed that the cubic capacity of the space between the sieve plate and the exit holes for burnt gases is one of lees than 120 c. c per Hefner Candle power. 81. 81. The Respondents themselves in their plaint (paragraph 3) say that the respective inventions protected by the two Letters Patent (referred to in the paragraph) are particularly ascertained and described in "the relative specifications true copies whereof are hereto annexed and marked with the respective letters C and D." We are of course only concerned with the first of those Letters Patent and so have only to deal with the specification which was Annexure C. It may be observed in passing, as being to some extent material upon the question of ambiguity or insufficiency, that the specification is to a large degree illogical and redundant in its language and there is a great deal of unnecessary repetition in the description and over-elaboration. Thus the form of the document cannot fail to give the impression that the applicants for the Patent which was subsequently granted were endeavouring to make it appear that what they were Seeking protection for was an article of a complicated and intricate character or else a principle highly scientific, abstruse and altogether novel; whereas after the full investigation which took place in the course of the proceedings before Mr. Justice Ameer Ali, it now seems that the whole process of production and manufacture resolved itself into something comparatively simple and easily understood. The protection that the Hermann Nier firm as Plaintiffs were claiming in the infringement suit and that which the R. E. Dietz Co. (Inc.) as the Defendants in that suit and as the Petitioners in the revocation proceedings were denying, was, as stated in para. The protection that the Hermann Nier firm as Plaintiffs were claiming in the infringement suit and that which the R. E. Dietz Co. (Inc.) as the Defendants in that suit and as the Petitioners in the revocation proceedings were denying, was, as stated in para. 9 of the specification, for an invention which " consists in means for improving the burning of hurricane lanterns and the like of known types employing kerosene or the like fuel to increase the illumination, and to prevent sooting and the preduction of disagreeable odour by effecting more perfect combustion, which consists in reducing the distance and the cubic capacity for gases between the sieve plate (which carries the glass glove or chimney) and the outlet opening for the burnt gases at the top of the lantern, thereby bringing the upper smoke bell cover and top of the lantern closer to the flame of the lamp, whereby these parts become more highly heated than heretofore, with the result that the draught is improved and a better and more uniform combustion is attained than heretofore owing to said improvement in the draught with a reduction in, or at least without increase in the size of the burner or burner wick, characterised by this that whereas heretofore in the standard practice relating to hurricane lanterns the cubic capacity of the space between the sieve plate and the exit holes for burnt gases has been round about 150 c. per Hefner candle power, this capacity is reduced to be one of less than 120 c. c." 82. In the opening paragraph- of the specification the applicants stated: Hurricane lantern adapted to burn with a free air supply such as now generally in use have an illuminating capacity of about 6 Hefner candles. To produce this lighting power seven line burners having flat wicks 5,8 wide are usually used. In the opening paragraph- of the specification the applicants stated: Hurricane lantern adapted to burn with a free air supply such as now generally in use have an illuminating capacity of about 6 Hefner candles. To produce this lighting power seven line burners having flat wicks 5,8 wide are usually used. These burners are built into lanterns of a certain size and there is, if one considers the space, between the sieve plate which carries the chimney and the opening of the top chimney, where the burnt off gases escape, and air chamber of about 870 cubic centimetres capacity in the smallest type of lanterns, which come into consideration and which satisfy the demands in question, i.e., an air space of 117 cubic centimetres per Hefner candles unit, that is to Bay, an air space of round about 150 c. c. per Hefner candle power, when the calculation is based on a light output of 6 Hefner candle. The total size of the lantern must correspond with this air space, and upon this depends the quantity of raw material required as well as the amount of wages, etc. paid for the manufacture. 83. Then in para. 3 it was. said that-- The present invention discloses how to obtain the normal light output such as is usual up to now with a lantern which requires for each Hefner candle units only a capacity for fresh air which is not; above 120 cubic centimetres and which barns substantially without odour on account of the more complete combustion of all particles contained in the kerosene. A special advantageous form of construction of such a lantern is one which while using a 5 burner technically known as a 5 line burner using a flat wick approximately half inch wide) only has a total air chamber contents of 420 cubic centimetres, so that for each Hefner candle there is a space of only 70 to 80 cubic centimetres. 84. The applicants then make this comment-- It is evident that the manufacture of such a small lantern represents a definite step in progress in every respect upon known practice especially considering that a light output is obtained using a 5 burner (five line burner), which corresponds with that so far only obtained by the usual larger size lanterns; this advantage is accentuated by substantially odourless burning. 85. 85. Then follows this direction-- The reduction in the size of the lantern is accompanied by a reduction to a considerable extent in the distance of the lantern head from the burner hood and in the dimensions of the lantern head itself. By such means the flame itself is brought nearer to the lantern head, and this lantern head becomes more heated than was the case with usual known forms of construction even when considering the smallest sizes of hurricane lanterns now in use. The increase of the temperature compared with known lanterns amounts to about 100 C. at the upper smoke bell cover and to about 10 C. at the joint of the air conducting tubes with the chimney top, so that at these places one obtains temperatures of 375 C, and 80 C. respectively instead of 275 C. and 70 C, respectively calculated at a normal outside air temperature of 18 C. to 20 C, The air circulation is considerably increased by this increased temperature and the air inside the chimney receives a considerable drawing tendency causing a rapid ascent, This ascent causes a quicker influx of fresh air through the lower sieve plate of the lantern as well as a quicker influx of fresh air into the air conducting tube on both sides. By these means a quicker exchange of the air is caused which is moved by the increased heating with the result that larger quantities of fresh air are conducted to the flame per unit of time so that, with the simultaneous action of the increased heating, a considerably better combustion is obtained; inspite of the reduced size of the lantern as a unit about the same light output is obtained as was the case with larger lanterns and the improved combustion is characterised by a substantial absence of odour. 86. Paragraph 13 is as follows-- " To allow for this increased draught through the burner hood the sectional areas of the air conducting tubes is to be above 100 sq. mm. and preferably to be 180 sq. mm. or more. The use of air tubes having an area of 15 to 180 sq. mm. 86. Paragraph 13 is as follows-- " To allow for this increased draught through the burner hood the sectional areas of the air conducting tubes is to be above 100 sq. mm. and preferably to be 180 sq. mm. or more. The use of air tubes having an area of 15 to 180 sq. mm. each is known in the standard types of lanterns giving approximately 6 Hefner service candle power and if the sizes of these lanterns is reduced to a size which according to this invention would give approximately the same candle power the area of the air tubes should not be substantially reduced below that of the tubes in the said standard types." 87. Paragraph 14 states-- Owing to the inlet ends 'of the air-conducting tubes being brought near to the flame of the burner the temperature of these ends of the tubes is raised, for example is raised by 10 C. above the temperature usual in standard lanterns under like atmospheric conditions, and the temperature of the increased volume of draught as supplied to the burner is accordingly raised, with the result that the combustion is better and the candle power is increased. 88. Paragraph 16 states-- According to a specific embodiment of the invention an improved hurricane lantern is provided in which the space between the sieve plate (which carries the glass chimney) and the exit holes provided in the lantern head for the escape of the burnt gases is below 120 cub. cms. per Hefner candle power emitted, and in which in under normal burning conditions in India the said space is round about 70 to 80 cub. cms. per Hefner candle power. 89. Paragraph 19 is as follows-- The lantern is built in the usual way. An important feature however is that the lantern top is about 15 per cent, less distant from the burner hood, than is usual with lanterns of the smallest size, which have yet a light capacity of 6 Hefner candles. For the flame which is developed, a total air space of 420 cubic centimetres is created in the decreased interior between the sieve plate, and the exit openings of the chimney. In this decreased space the flame also acts considerably more effectively upon the air rushing in through the air-conducting tubes which becomes noticeably more highly pre-warmed. For the flame which is developed, a total air space of 420 cubic centimetres is created in the decreased interior between the sieve plate, and the exit openings of the chimney. In this decreased space the flame also acts considerably more effectively upon the air rushing in through the air-conducting tubes which becomes noticeably more highly pre-warmed. This pre-warmed air, which is conducted into the air chamber situated under heath the burner hood causes together with the increased air supply through the sieve a consider, ably greater intensity of the combustion, so that with the small lantern the same lighting power is obtained as with the usual, up to now twice as big combustion space of the larger lantern. The air conducting tubes must of course have a larger cross section than that which would result from a proportional reduction in the size of the lantern so that the necessary air required for the intensified combustion may reach the flame in an unobstructed manner. 90. The claiming clauses of the specification are in these terms:-- 1. In the herein indicated known types of lanterns, employing kerosene or the like as fuel, means for improving the burning of hurricane lanterns and the like to increase the illumination, and to prevent sooting and the production of disagreeable odour by effecting more perfect combustion, which consists in reducing the distance and the cubic capacity for gases between the sieve plate (which carries the glass globe or chimney) and the outlet openings for the burnt gases at the top of the lantern, thereby bringing the upper smoke bell cover and top of the lantern closer to the flame of the lamp, whereby these parts become more highly heated than heretofore, with the result that the draught is improved and a better and more uniform combustion is attained than heretofore owing to said improvement in the draught with a reduction in, or at least without increase, in the size of the burner or burner wick, characterised by this that, whereas heretofore in the standard practice relating to hurricane lanterns the cubic capacity of the space between the sieve plate and the exit holes for burnt gases has been round about 150 c.c. per Hefner candle power, this capacity is reduced to be one of less than 120 c.c. 2. Means for improving the burning of hurricane lanterns and the like according to claim 1, in which the distance between the burner hood and the smoke bell cover is reduced by approximately 15 per cent., below that usual in standard practice. 3. A specific example of an improved hurricane lantern according to claim 1 or claim 2 in which the space between the sieve plate (which carries the glass chimney) and the exit holes provided in the lantern head for the escape of the burnt gases is below 120 cub. cms. per Hefner candle power omitted and in which [in under normal burning condition in India the said space is round about 70 to 80 com per Hefner candle power. 4. An improved hurricane lantern, constructed, arranged or adapted to function substantially as described or substantially as described with reference to the accompanying drawings." 91. Put quite shortly, therefore, what the applicants were claiming was that they had invented a method of making hurricane lanterns of a size considerably smaller than those hitherto put on the market which despite their reduction in size would nevertheless give a light equal in intensity or power to that hitherto given only by lanterns of larger size. The learned Judge's version of the history of the matter is this: "A great many year ago what we have called in this case the big lanterns were imported by the Defendants into India. These lanterns were called the 'Blizzard.' They have an air-chamber of about 1509 o. c. and had a candle power of about 10. Details I will refer to hereafter. A second form of the Blizzard was introduced later called the 'D-Lite' with, a rounded or apple-shaped globe instead of a long or pear-shaped globe. Then a smaller size was made called the Dietz Junior, with an air chamber of about 950 c. o., and an efficiency of about 6 candle power. A second type of this size of lantern was made later and was called the ' Little Wizard again the Dietz Junior having a pew-shaped globe and the Little Wizard a round-shaped globe, I will refer to these globes in future, respectively, as the Dietz Junior type of globe and the Little Wizard type of globe. 92. Shortly before the war the Plaintiffs in this action, Messrs. 92. Shortly before the war the Plaintiffs in this action, Messrs. Nier & Co., entered upon the Indian market with the equivalent, I think, of all the four Ian-terns I have mentioned, but we are only concerned with Nier's equivalent of the Dietz Junior which was 252 and Little Wizard which they call No. 270. These four lanterns have been referred to as a class during these proceedings as "lanterns of medium size." 93. This was the position when in 1932 the patent in question No. 19006 was obtained and in pursuance of that specification Nier put upon the market lantern No. 275, a smaller lantern of an air chamber of about 536 c.c., hight of about 9;. inches and said to be of the same candle power as the medium size lanterns, namely, 6 Hefner candle power. The lantern in question is an excellent lantern, of that there is no question and it has achieved in India a very great popularity as is shown by the sales. 94. In 1935 the Defendants Dietz introduced into India the lantern called the comet, the infringing lantern. This has a cubic capacity of abourt 382 c.c. and it was advertised to be of the candle power of (sic 6 Hefner candle power). 95. In point of fact it has a candle power of (I speak now in purely general terms) about 4." 96. Now it seems that when the matter was before Mr. Justice Ameer Ali, in the early stage at any rate--there was some doubt as to the scope and extent of the claim which was being put forward by Mr. Barwell on behalf of the Herman Nier firm. Mr. Bose, on behalf of the Respondents, when the matter was before us, referred to this in connection with his argument dealing with the "ambiguity" of the specification and he stated that as regards the "range" of the claim there had been at one time or other in the course of the proceedings, three separate contentions. Mr. Barwell had contended that any lantern smaller than those of the so called known types giving a performance of 120-1 would be within the claim. Mr. Page, on the other hand, had gone no further than to say that the invention had reference to a smaller lantern that would give a light of six Hefner candle power, and lastly Mr. Barwell had contended that any lantern smaller than those of the so called known types giving a performance of 120-1 would be within the claim. Mr. Page, on the other hand, had gone no further than to say that the invention had reference to a smaller lantern that would give a light of six Hefner candle power, and lastly Mr. Ormond had put forward the contention that the " invention " was based on the size of the wick as well as the size of the lantern. Mr. Bose argued that if the claim was one for a method of making' a lantern of a size reduced below that of the largest lantern (i.e., the Dietz Blizzard) giving a performance at the ratio of less than 120-1 then the desired result had already been achieved by the Dietz Junior as appears from the Table which were put in evidence at the trial. When the matter was under discussion before us, however, Mr. Page on behalf of the Appellants--the Hermann Nier firm--quite definitely confined himself to the thesis that the invention was for the making of a hurricane lantern which exhibited no new features as regards the actual design, but was of a size smaller than any of the previously known types in that the distance between the lantern and the burnerhood was reduced by fifteen per cent, as compared with previously known types and the air chamber was of a size represented by seventy to eighty times the figure indicating the candle power of the light emitted by the lantern. 97. In opening the appeal Mr. Page unquestionably limited the "invention" to these two elements. He stated that the invention in effect consisted of the bringing into existence of two new dimensions in connection with the production of hurricane lamps--(1) linear, i.e., the fifteen per cent, reduction and (2) cubic, i.e., the air chamber space of preferably between 420 and 480 cubic centimetres; but towards the end of the hearing--in the course of his reply-- Mr. Page no doubt as the result of Mr. Bose's arguments found himself driven to suggest that the efficacy of the smaller lanterns as regards luminosity might also be influenced, and indeed to a large degree be dependent, upon the size of the wick also. To put the matter in another way, Mr. Page no doubt as the result of Mr. Bose's arguments found himself driven to suggest that the efficacy of the smaller lanterns as regards luminosity might also be influenced, and indeed to a large degree be dependent, upon the size of the wick also. To put the matter in another way, Mr. Page argued that what the Hermann Nier firm had invented was a method of reducing the size of hurricane lanterns without experiencing the theretofore inevitable consequential result of a diminution in the light produced. Mr. Page summarised the attitude of his clients towards the R. E. Dietz Company (Inc.) and indeed towards all other competitors, if not indeed towards the world at large as being this. " You may make a lamp of any size or shape you like except one of a particular size or capacity or diameter. That you may not do, because we have discovered this is the very one which gives more light proportionate to the whole size of the lamp." Thus the claim as argued for by Mr. Page, was for a lantern smaller than any known type being a lantern of six candle power made in a particular way, and so the invention consisted in a manner of making hurricane lanterns smaller than known types, yet producing illumination of six Hefner candles,--the method being said to consist in the reduction of the height of known types for the purpose of bringing the top of the lantern nearer the wick; plus a reduction in the size of the cubic contents of the air chamber so as to reduce its size to something below 120 c. c. per unit of light. The desired light being six Hefner candle power the cubic contents of the air chamber space would have to be 720 c. c. (6 X 120) or less. What is described in the specification as a specially advantageous form of construction of such a lantern would be one in which there was a 5'" (five line) burner with a flat wick approximately half an inch wide burning in an air chamber of 420 cubic centimetres, " so that for each Hefner candle there is a space of only 70 to 80 cubic centimetres." 98. Mr. Mr. Page asked us to accept the view that what the patentees did was to make a smaller lantern, yet one with a disproportionate reduction in size thereby effecting reduction in size without diminution in light. The question which was before the learned Judge and that which was before us in the hearing of the appeal resolves itself into this. Was there anything more in the whole thing than that the result thus obtained was merely the outcome of accidental discovery or, at the highest, of an arithmetical calculation? What indeed was its nature? Was it anything more than that the Hermann Nier firm stumbled upon the fact that if one reduces the size of the lantern not altogether or not in all respects proportionately, a certain result ensues? 99. Mr. Page for the purpose of showing that there was an invention which could properly be the subject-matter of a patent relied upon the combined effect of the definition as appearing in sec. 2 (8) and (10) of the Indian Act of 1911 which I have already quoted and he said--here was a new way of making an article, namely, a hurricane lantern; and in this connection he argued that it is quite enough to justify protection by Letters Patent if one merely adapts existing parts and so produces a useful result. It is of course true to say that a Patent may be granted for a combination which is one producing a new result, or arriving at an old result in a better or cheaper way or giving a useful choice of means, but different considerations are applicable to each of these cases in order to arrive at a conclusion as to whether or not there is good "subject-matter" in any particular combination. The fact that the result is new is of itself no doubt cogent evidence of invention [see the case of Crosthwaite Fire Bar Syndicate v. Senior [1909] 1 Ch. 701 : 26 R. P. C 713, 732], and if it has been necessary to make modifications in the form or construction of all or any of the separate old integers included in the combination in order to ensure their more perfect interaction, there is a strong presumption that there has been invention [see the case of International Harvester Company of America, v. Peacock [1908] 25 R. P. C. 765]. It is also correct to say that it does not matter whether the "invention" follows upon a happy accident or is the result of an experiment. In other words it is immaterial whether the "invention" comes into existence by accident or by design, but on the other hand there must have been some inventive step even though the inventive step is but slight. In the case of Tomlin v. Acme Engineering Co., Ltd. [1933] 51 R. P. C. 117, Farwell, J., at page 126 said: The first question that I have to consider is whether the Patent is valid. The real cms of the whole of this part of the case depends upon whether there is sufficient subject matter to support this Patent. 100. There the action was one for infringement and in the course of it a defence of invalidity was raised, inter alia, on the ground of want of subject-matter. The defence succeeded; and the patent was held invalid for want of subject-matter on the principle that there was no sufficient inventive step in the alleged invention. 101. Mr. Page also drew our attention to the fact that--as was stated by Romer, L. J., in the case of Woodrow v. Long Humphreys & Co., Ltd. [1983] 51 R. P. C 25-- "in questions relating to patents it is more than usually necessary to beware of that wisdom that comes after the event," and thus it by no means follows that there cannot be a patentable invention merely because it is possible to say that what was done by the patentees was no more than the obvious. In any event, argued Mr. Page, in the present instance it was by no means " obvious " to counter the effect of a smaller air chamber by a more rapid air circulation. [His Lordship after considering the evidence and the findings of the learned Judge proceeded.] 102. The findings of the learned Judge which are at pages 318 and 319 of the Paper Book (already quoted) and with which after a full and careful consideration of the evidence I entirely agree, show that even if it were the fact that the lantern Feuerhand No. 275 did give the same quantum of light as the larger lanterns which were its predecessors, that phenomenon did not depend upon nor result from the particular "features" or "integers" referred to in the specification. What the Nier firm did was merely to scale down the dimensions of the lantern, generally speaking; though the side tubes were kept at the old diameter or cross-section. It follows, therefore, in my view that not only was there no invention, but there was no discovery and so in the circumstances, I am of opinion that the learned Judge was quite right in coming to the conclusion that there was " no subject-matter " in the sense that there was no invention and, therefore, no new invention. The result obtained, in so far as there was one at all, was not the outcome of any discovery based upon trials or experiments. Moreover, I think, Mr. Bose was quite justified in saying that there was some diminution in light in connection with Feuerhand No. 275 as contrasted with its predecessors--both those produced by the Hermann Nier firm and those produced by the R. E. Dietz Co. (Inc.). But', even, if there had not been a diminution (as the learned Judge thought there was) and the amount of light had still remained at as much as six candle power, that result was evidently entirely fortuitous and consequential upon and a natural concomitant to a general reduction of all the parts of the lantern with the exception of the side arms. In my opinion the right view of the whole matter is that the specification did not enunciate a principle (as was contended for by Mr. Bar well at the trial) for the making of a lamp, but what happened was that a smaller lamp was constructed and then it was sought to enunciate in a specification some " principle " which might constitute an invention and thus create a monopoly which would have the effect of keeping small lanterns made by other people out of competition with that produced by the patentees. 103. To re-state the matter: it seems to me to come to this that the object of the Hermann Nier firm was not so much to prevent trade rivals from making small lanterns giving a light of six candle power, but to prevent them making small lanterns at all. 103. To re-state the matter: it seems to me to come to this that the object of the Hermann Nier firm was not so much to prevent trade rivals from making small lanterns giving a light of six candle power, but to prevent them making small lanterns at all. The fact that there is in the specification, as regards the size of the air chamber, a wide range of selection indicates that it was not the " principle " that made the lamp but the lamp that made the " principle." 104. It cannot be too strongly emphasized that in the specification there are obviously a large number of points or features connected with the construction of the lanterns which are not Specified at all. Mr. Bose on the question of ambiguity said that the claim was ambiguous, because the instructions would refer equally well either to the manufacture of a lantern smaller than the earlier types which would give a light of six candle power or to the manufacture of any lantern the performance of which is better than a ratio of 100-1. It. might also refer to any lanterns smaller than the Dietz Junior which would give the same result. 105. Although we are really only concerned with the amended specification, it is not without significance, as I have previously mentioned, that originally the alleged invention was said to be dependent upon a right proportioning as between the air chamber space of the chimney and the space below the wick. The amendment changed the whole direction of the Plaintiffs' case and in the end what was originally described as a result was claimed as an invention. As regards the question of the insufficiency Mr. Bose argued that there was not enough material in the specification to enable anyone to know what he had to do in order to produce the desired result and if anyone built a lantern according to the specification, he might get a lantern which would give a light of six candle power, five candle power or only four candle power and so Mr. Bose suggested that if the object was to explain how to make a small lantern giving a light of six candle power, the result would be by no means certain. Bose suggested that if the object was to explain how to make a small lantern giving a light of six candle power, the result would be by no means certain. For one thing there is in the specification no information as to how much the height has to be reduced in order to obtain the required cubit capacity in the air chamber. It is true that 15 per cent, is mentioned, but there is no definite indication of exactly what the 15 per cent, represents or what it is of. There is nothing to show what the 100 per cent, measurement really is. Moreover, said Mr. Bose, concerning the question of " hot top," the information given is incorrect and no particulars are given about the holes in the sieve plate. In this connection I call to mind once more Mr. Nier's own evidence. The size of the wick was not fixed and I think it is not unreasonable to say that the Book of Ratios produced in the case shows that the result that would be obtained might, as. regards the quantum of light, quite easily vary between 5.05 and 7.73. It would seem to follow therefore that anyone working to the specification would be by no means assured of achieving what the specification declares he ought to obtain. Mr. Bose argued from this that no workman could ever be sure whether any production of his would constitute an infringement of the patent or not, unless and until he had caused to be tested each and every lantern severally and even then the results obtained by the test might be variable or unreliable entailing the unfair consequence that according to one test the new production might be an infringement of the Patent and according to another not an infringement. On the question of ambiguity and the insufficiency of the specification we were invited to take the view that not only was the patent. invalid on account of prior user but the R. E. Dietz Co. (Inc.) as prior users were entitled to come in under sec. 26 (2) (b) (via), because the specification is or at any rate originally was wide enough to embrace within its ambit the " Dietz Junior " which was 15 per cent, less in height than the " Blizzard " and as regards its air chamber space the cubic contents were 108.52-1. Mr. 26 (2) (b) (via), because the specification is or at any rate originally was wide enough to embrace within its ambit the " Dietz Junior " which was 15 per cent, less in height than the " Blizzard " and as regards its air chamber space the cubic contents were 108.52-1. Mr. Bose pointed out in this connection, that although Mr. Page in the course of the hearing of the appeal said that the question was one relating to lanterns giving a light of six candle power, there is not a single word about six candle power in the specification itself. 106. What the patentees claimed was something which was an improvement on known types. The known types would include the " Wizard " and the "D Lite " so that if there was any reduction from these types to a lantern with a cubic capacity of not more than 120-1 then something had been done which was now being claimed by the patentees as their invention. The argument made by Mr. Bose was that there was nothing in the original specification to show that the expression " known types " referred only to lanterns of medium or any other particular size. Therefore the reduction in size as between the R. E. Dietz Company (Inc.)'s "D Lite" and the Dietz " Junior" forestalled or anticipated the claiming clauses because the Dietz " Junior " had in fact a cubic capacity of the ratio of 120-1 or even less. In other words the R. E. Dietz Company (Inc.) before the date of the specification had already done something which subsequently purported to be prohibited by the Letters Patent. The claim in the specification was so wide, said Mr. Rose, that it included a Dietz article and certainly included the " descent n from the D Lite to the " Junior." Thus novelty had no existence and the R. E. Dietz Co. (Inc.) had the necessary status and were qualified to present the petition. I do not think it necessary that we should say anything further on this aspect of the case. For the reasons I have already discussed I think the R. E. Dietz Co. (Inc.) had sufficient status to present the petition apart altogether from the question of whether or not they established prior user as described in sec. 26 (2) (b) (iii). 107. For the reasons I have already discussed I think the R. E. Dietz Co. (Inc.) had sufficient status to present the petition apart altogether from the question of whether or not they established prior user as described in sec. 26 (2) (b) (iii). 107. On the questions of ambiguity and sufficiency I think the view taken by the learned Judge is correct and it is only right to say that the limits or ambit of the invention were not so clearly described that other manufacturers or the public at large would be in a position to know what was made a monopoly and what was not. As regards the nature of the invention and the means of making or effecting it, that is not so sufficiently described that the public would, after the expiry of the period of the patent, have proper knowledge of how to achieve the results alleged to comprise the new invention. 108. To sum up, therefore, the conclusions at which I have arrived are that the two features or integers mentioned by Mr. Page are by no means the sole factors or even the determining factors for achieving the result of preventing a diminution of light proportionate to the reduction in the size of the lantern. If that result was in fact achieved it seems quite clear that it was due to the combination of a number of factors the chief of which was other than a mere "rational reproportioning" as the learned Judge calls it. Further, even allowing for the fact that the specification is said to have been drawn up by some person whose mother tongue was other than the English language, the specification is by no means clear and unambiguous. It seems quite obvious to my mind, that the ratio of 120-1 is not an exclusive feature of a reduced size lantern giving a light of six candles. If in the manufacture of the lantern the height is reduced as compared with the height of the earlier lanterns, that necessarily entails a reduction in the volume of the air chamber space of a proportionately higher degree. If the height is reduced by 15 per cent., then other things being equal, the new volume of air space is 163 of the old volume, that is to say, round about three fifths. If the height is reduced by 15 per cent., then other things being equal, the new volume of air space is 163 of the old volume, that is to say, round about three fifths. There is in my opinion every indication both from the evidence in the case and the scientific aspect of the matter as deduced from the Tables and calculations discussed in the course of the case that what the learned Judge calls " rational " reproportioning does not necessarily mean undiminished candle power. I think therefore that what the Patentees style an "invention " is no more than a consequence normally to be expected. 109. In my view there was no subject-matter. There was, therefore, no invention and so no new invention and the R. E. Dietz Co. (Inc.) were entitled to rely on sec. 26 (1) (b) both for asking that the patent No. 19006 should be revoked and as a defence against the charge of having infringed the patent. I agree entirely with the conclusions arrived at by the learned Judge and the reasons therefor and so these appeals must be dismissed and with costs. 110. Panckridge, J.--Having regard to our decision upon the merits of this appeal we are not, strictly speaking, required to express an opinion on the question whether the order of the learned Judge under sec. 26 is appealable under cl. 15 of the Letters Patent. However as a considerable amount of our time was taken up with a discussion of this question, and as, since the Full Bench decision of the Rangoon High Court in re Dayabhai Jiwandas v. G. M. Murugappa Chettiar I. L. R. 13 Rang. 457 (F. B.) (1935), the appealability generally of orders made by a single Judge is frequently challenged, I think it as well to express the views that I hold, and on which I propose to act as long the present situation is not modified by a pronouncement of the Judicial Committee or of a Full Bench of this Court. 111. It is conceded that an order made under sec. 26 of the Indian Patents and Designs Act, 1911, is a judgment within the meaning of cl. 15 according to the definition formulated by Couch, C. J., in The Justices of the Peace for Calcutta v. The Oriental Gas Company 8 Beng L. R. 433 (1872). 111. It is conceded that an order made under sec. 26 of the Indian Patents and Designs Act, 1911, is a judgment within the meaning of cl. 15 according to the definition formulated by Couch, C. J., in The Justices of the Peace for Calcutta v. The Oriental Gas Company 8 Beng L. R. 433 (1872). In 1901 Maclean, C. J., observed with reference to that case " That definition is now of some antiquity and is rapidly becoming, if it has not already become, almost classical": Mussamut Brij Coomaree v. Ramrick Dass6 C. W. N. 781 (1901). 112. Further, the order under appeal satisfies the other tests which have been suggested from time to time, as for example by the Madras High Court in Tuljirim Rao v. Alagappa Chettiar I. L. R. 85 Mad. 1(1910). Perhaps I should observe that the order under sec. 26 was drawn up as such and not in the form of a decree as directed by the learned Judge. 1 am inclined to doubt whether the learned Judge was empowered to give such a direction, but had it been observed, I do not think that the position would have been affected. The Court cannot, by the form in which its decision is embodied, make that decision appealable, if, apart from the form no appeal lies. 113. Page, C. J., states in his judgment in re Dayabhai Jiwandas v. A. M. M. Murugappa Chettiar I. L. R. 13 Rang. 457 (F. B.) (1935) that the Calcutta High Court has always given " lip service " to the construction put upon the term "judgment" by Couch, C. J., in The Justices of the Peace for Calcutta v. The Oriental Gas Company 8 Beng. L. R. 483 (1872), but that it has almost always in practice declined to follow it upon the ground that the definition of judgment in that case is not exhaustive. 114. The position appears to be that prior to the Rangoon Full Bench decision the various High Courts, generally speaking, regarded any order that fell within Couch, C. J.'s definition as a judgment under cl. 15. Some Judges however have expressed the view that the definition is not exhaustive, meaning, I suppose, that there may be orders which are still judgments although they are outside the definition. 15. Some Judges however have expressed the view that the definition is not exhaustive, meaning, I suppose, that there may be orders which are still judgments although they are outside the definition. See Musamut Brij Coomaree v. Ramrick Dass 5 C. W. N 781 (1901), Buddhu Lal v. Chettu Gope I. L. R. 41 Gal. 8041 s.c. 21 C. W. N. 269 (1916) and Lea Badin v. Upendra Mohan Roy Chowdhury 39 C. W. N. 155 (1934). 115. The point that was decided in hi re Dayabhai Jiwandas v. C. M. Murugappa Chettiar 1. L. R. 13 Rang. 457 (F B) (1935) was that no appeal lay under cl. 13 of the Letters Patent of the Rangoon High Court, which corresponds with cl. 15 of our Letters Patent, against the order of a Judge of the High Court for the transfer to that Court of a Suit pending before a subordinate Court. This was in conformity with the decision of this Court in Khatiza v. Sonoiram Daulatram I. L. R. 47 Cal. 1104 (1920), followed in a subsequent unrepresented case. See Pran Kumar Pal Chaudhury v. Darpahari Pal Chaudhury I. L. R. 54 Cal. 126 at p. 133 (1927). 116. The importance of the Rangoon decision lies in the fact that the ratio decidendi was that " judgment" in cl. 13 of the relative Letters Patent meant "decree in a suit," and cannot include an order. In other words no order is appealable, unless an appeal is expressly-provided by the CPC or some other Act of the legislature. 117. The foundation of this view is to be sought in certain decisions of the Judicial Committee, which are said to have the effect of overruling by implication the definition of judgment in The Justices of the Peace of Calcutta v. The Oriental Gas Company 8 Beng. L. R. 433(1872) and indeed all the decisions holding or recognising that certain orders are judgments within the meaning of cl. 15. 118. I apprehend that if on consideration a Division Bench of this Court were to come to the conclusion that the previous decisions are no longer of authority in the light of the Privy Council cases, that Bench would have to refer the matter for decision by a Full Bench, under Rule 1 of Chapter VII of the Appellate Side Rules and Orders. 119. 119. I will now give my reasons for thinking that the Privy Council cases cannot be held to decide that an order can never be a judgment within the meaning of the cl. 15. 120. Sabitri Thakurani v. Savi L. R. 48 I. A. 76: s. c. I. L. R. 48 Gal. 481; 25 C. W. N. 657(1921) is the first in point of time, and in my view the most important, as it is concerned directly with cl. 15. The facts were as follows--an application by the Appellant for letters of administration to the estate of her deceased husband was dismissed by Chaudhuri, J. The 'jurisdiction exercised by Chaudhuri, J., was that conferred on the Court by Chapter V of the Probate and Administration Act, 1887. Sec. 83 falls within that Chapter and provides that in contentious cases the proceedings shall take as nearly as may be the form of a suit according to the provisions of the Code of Civil Procedure, in which the Petitioner shall be the Plaintiff, and the person who may have appeared to oppose shall be the Defendant. 121. I have examined the original record, and I find that Chaudhuri, J.'s decision, presumably in view of the terms of sec. 83, is embodied in a decree and that the proceedings are referred to therein as " this suit." 122. I assume that the appeal thereafter preferred under cl. 15 was dealt with on the basis that it was an appeal against a decree. What happened was that the High Court in its Appellate Jurisdiction rejected the appeal under Or. 41, r. 10(2), because of the failure of the Appellant to comply with an order for security for the costs of the appeal made under r. 10 (1) of the same order. An application for leave to continue the appeal in forma pauperis was subsequently refused by the High Court, and against this refusal the Appellant was granted leave to appeal to His Majesty in Council. 123. The Appellant's main point was that Or. 41, r. 10 had no application to appeals brought under CI. 15. The Judicial Committee held that the rule had application. Lord Sumner delivering the judgment of the Board observed as follows: The orders and rules made under the Code are, by sec. 121, given the same effect as if they had been enacted in the Code, and therefore Or. 41, r. 10 had no application to appeals brought under CI. 15. The Judicial Committee held that the rule had application. Lord Sumner delivering the judgment of the Board observed as follows: The orders and rules made under the Code are, by sec. 121, given the same effect as if they had been enacted in the Code, and therefore Or. 41, r. 10 is one of the provisions of the Code. It applies to appeals in the High Court, including the present appeal, unless any particular section of the Act can be found to exclude it. Sec. 104 (1) is the section relied on for this purpose. It prescribes what orders shall be appealable and enumerates them, and among the orders enumerated there is not included such an order as that made by Chaudhuri, J. Out of the operation of sec. 104 there are, however, expressly excepted matters, which are otherwise expressly provided for in the body of the Code. In order to appreciate the full effect of sec. 104 it should be compared with the corresponding section of the Act of 1882, sec. 588. The earlier section enacted that appeals should lie in certain cases, which it enumerated, " and from no other such orders." This raised the question neatly, whether an appeal, expressly given by sec. 15 of the Letters Patent and not expressly referred to in sec. 58B of the Code of 1882, could be taken away by the general words of sec. 58S and from no other such orders.' The change in the wording of sec. 104 of the Act of 1908 is significant, for it runs, 1 and save as otherwise expressly provided in the body of this Code or by any law for the time being in force from no other orders.' Sec. 15 of the Letters Patent is such a law, and what it expressly provides--namely, an appeal to the High Court's Appellate Jurisdiction from a decree of the High Court in its Original Ordinary Jurisdiction, is there-by saved. 124. It is on the concluding words of this passage that Page, C. J., relies for the proposition that the term " judgment " in the Letters Patent mean " decree " and not " order." 125. But if this is so, what has Lord Sumner in mind when he refers to sec. 124. It is on the concluding words of this passage that Page, C. J., relies for the proposition that the term " judgment " in the Letters Patent mean " decree " and not " order." 125. But if this is so, what has Lord Sumner in mind when he refers to sec. 588 of the Code of Civil Procedure, 1882, and says that the words used in that section " and from no other such orders " raised the question whether an appeal expressly given by cl. 15 and not expressly referred to in sec. 588, could be taken away by these general words. 126. How could such a question arise at all save on the assumption that cl. 15 provided at any rate in certain cases for appeals against orders? Unless that were so, there was no right of appeal which sec. 588 could be construed as disturbing. 127. Of even greater significance to my mind is Lord Sumner's subsequent reference at p. 84 to Hurrish Chander Chowdhury v. Kali Sundari Debi L. R. 10 I. A. 4: b. c. T. L. B. 9 Cal. 482 (1888). In that case Pontifex, J., refused an application made under sec. 610 of the Code of Civil Procedure, 1877 (corresponding with Or. 45, r. 15 of the present Code) to transmit an order made by His Majesty in Council to the Court of first instance. An appeal against the order of refusal was preferred under cl. 15. The course that the proceedings took is most conveniently related in the following passage taken from the judgment of Board delivered by Sir Robert Collier, p. 16: "From this order or judgment of Mr. Justice Pontifex an appeal was preferred to the High Court. All three of the learned Judges of the High Court, the Chief Justice and the two puisne Judges, were of opinion that Mr. Justice Pontifex had exercised a wrong discretion, and that he ought to have sent the case for execution; but the Chief Justice was of opinion that no appeal would lie from the proceeding before him, and that his error could not be set right. The two puisne Judges were of opinion that an appeal would lie under sec. Justice Pontifex had exercised a wrong discretion, and that he ought to have sent the case for execution; but the Chief Justice was of opinion that no appeal would lie from the proceeding before him, and that his error could not be set right. The two puisne Judges were of opinion that an appeal would lie under sec. 15 of the Royal Charter of 1865, which is in the 89 terms:--'We further ordain that an appeal shall lie to the said High Court of Judicature, at Fort William in Ben-gal, from the judgment (not being a sentence or order passed or made in any criminal trial) of one Judge of the said High Court, or of one Judge of any Division Court, pursuant to sec. 13 of the said recited Act'--the said recited Act, with regard to the matter, having enabled the Court to confer upon a Judge or a division of the Court, the power of the Court itself. These learned Judges held (and their Lordships think rightly) that whether the transmission of an order under Bee. it 10 would or would not be a merely ministerial proceeding, Mr. Justice Pontifex had in fact exercised a judicial discretion and had come to a decision of great importance, which, if it remained, would entirely conclude any rights of Kali Soondari to an execution in this suit. They held, therefore, that it ws a judgment within the meaning of sec. 15. "The Chief Justice was of opinion that it was not a judgment: and be seems to have based his opinion in a great measure upon the ground that, in his view, Mr. Justice Pontifex had no jurisdiction to inquire at all whether or not Kali Soondari had a right to execution; that his function was merely ministerial; that all ho could do, or ought to have done, was to transmit the decree of Her Majesty in Council to the Lower Court for execution; that he usurped a jurisdiction which did not belong to him; and that under those circumstances no appeal would lie. Their Lordships do not think that Mr. Their Lordships do not think that Mr. Justice Pontifex can be properly treated as having usurped jurisdiction; but if he had, this would have been a valid ground of appeal, and they are unable to agree with the Chief Justice, that if a Judge of the High Court makes an order under a misapprehension of the extent of his jurisdiction, the High Court have no power by appeal, or otherwise, in setting right such a miscarriage of justice. "It only remains to observe that their Lordships do not think that sec. 588 of Act X of 1877, which has the effect of restricting certain appeals applies to such a case as this, where the appeal is from one of the Judges of the Court to the full Court." 128. In view of this language I do not see how it is possible to avoid the conclusion that in the Privy Council's view orders are not excluded as such from the ambit of the term " judgment" as used in cl. 15. 129. Lord Sumner also refers to, and by implication approves of, the Madras decision in Sabhapethi Chettiar v. Narayansami Chettiar I. L. R. 25 Mad. 555 (1901), which was that an order made dismissing a claim made under sec. 278 of the Civil Procedure Code, 1882, (corresponding with Or. 21, r. 58 of the present Code), was a judgment within the meaning of cl. 15, and that the right of appeal against it was not abrogated by sec. 538 of that Code. 130. Again Lord Sumner refers to Chap-pan v. Moider Chettiar I. L. R. 22 Mad. 68 (F. B.) (1898) and apparently sees no reason to doubt the soundness of that decision at the time at which it was pronounced. In that case a Full Bench held that an order of remand made by a single Judge of the High Court, exercising revisions 1 jurisdiction under sec. 622 of the Code of 1882, which corresponds to sec. 615 of the present Code, was appealable as a judgment under cl. 15. 131. The case is of course at variance with the law as it now stands, since by the amendment of March 11th, 1919, an order made in the exercise of revisional jurisdiction is in terms excluded from the category of appealable judgments. 615 of the present Code, was appealable as a judgment under cl. 15. 131. The case is of course at variance with the law as it now stands, since by the amendment of March 11th, 1919, an order made in the exercise of revisional jurisdiction is in terms excluded from the category of appealable judgments. The other Privy Council decisions can be more briefly dealt with for the reason that they are concerned not with cl. 15, but with cl. 39 which provides for appeals to His Majesty in Council. 132. Cl. 39 gives an appeal from any " final judgment, decree, or order " of the High Court and thus recognises, for the purpose of the clause, a distinction which is not recognised by cl. 15, since the latter provides an appeal against a " judgment " only. 133. Moreover Cl. 15 in my opinion clearly contemplates that certain orders may be judgments. If this is not so why qualify judgment with the words, " not being an order made in the exercise of revisional jurisdiction and not being a sentence or order passed or made, in the exercise of the power of superintendence.... or in the exercise of criminal jurisdiction"? If only decrees are judgments, where is the necessity of expressly excluding particular orders from the scope of the clause? 134. Indeed cl. 39 itself seems to come very near to recognizing that orders may be judgments within the meaning of cl. 15. Among the final judgments decrees and orders against which an appeal to His Majesty in Council is provided are judgments, decrees, or orders, made in the exercise of original jurisdiction by Judges of the High Court or of any Division Court " from which an appeal shall not lie to the said High Court under the provisions contained in the 15th clause of these presents." I am inclined to think that these words legally imply that there are orders which are appealable under cl. 15. 135. The earlier of the two cases concerned with the construction of cl. 39 is Tata Iron and Steel Co., Ltd. v. Chief Revenue Authority of Bombay I. L. R. 47 Pom. 725: 725: s. c. 28 C. W. N. 307 (P.C.) (1923), which decided that a judgment of the High Court under sec. 15. 135. The earlier of the two cases concerned with the construction of cl. 39 is Tata Iron and Steel Co., Ltd. v. Chief Revenue Authority of Bombay I. L. R. 47 Pom. 725: 725: s. c. 28 C. W. N. 307 (P.C.) (1923), which decided that a judgment of the High Court under sec. 51 (3) of the Indian Income Tax Act, 1918, upon a case stated by the Chief Revenue Authority was not a final judgment, decree, or order, appealable under cl. 39. 136. Lord Dunedin in delivering the judgment of the Board discusses the meaning of the term of judgment and refers to Ex parte Moore L. R. 14. Q. B. D. 627, Onslow v. Commissioners of Inland Revenue L. R. 25 Q. B. D. 465 (1890) and. Ex -parte Chinery L. R. 12 Q. B. D. 342 (1884). He cites the observations of Cotton, L. J., in the last-mentioned case: I think we ought to give the words ' final judgment in this sub-section their strict and proper meaning i c., a judgment obtained in an action by which a previously existing liability of the Defendant to the Plaintiff is ascertained or established-- unless there is something to show an intention to use the words in a contrary sense. 137. Lord Dunedin concludes: This decision Onslow v. Commissioners of Inland Revenue (34) clearly establishes that the decision and an order made by the Court under sec. 51 of the Act cannot be held to be a final judgment' within the meaning of Cl. 39 of the Letters Patent, since there is nothing to show an intention in the year 1862 to use these words in a sense more extended than their legal sense. 138. Unequivocal as the observations of Lord Dunedin are, they are not concerned with the question whether cl. 15 of the Letters Patent, as they now stand, or cl. 13 of the Letters Patent of Rangoon, as they have always stood, indicates an intention to use the term, judgment, in a wider sense. 139. Finally we come to Sevak Jeranchod v. Dakore Temple Commute, 30 C. W. N. 459 (P. C.) (19951). 15 of the Letters Patent, as they now stand, or cl. 13 of the Letters Patent of Rangoon, as they have always stood, indicates an intention to use the term, judgment, in a wider sense. 139. Finally we come to Sevak Jeranchod v. Dakore Temple Commute, 30 C. W. N. 459 (P. C.) (19951). The passage relied upon by Page, C. J., occurs at p. 462 where Sir John Edge observes: There was no right of appeal to his Majesty in Council from the judgments of the High Court of the 11th April, 1919, and 22nd September, 1919, or from any decrees which were drawn up, except on the sole ground that the judgments or decrees were incompetent. The term 'judgment' in the Letters Patent of the High Court means in civil cases a decree and not a judgment in the ordinary sense. This appeal to His Majesty in Council should not have been admitted. 140. The English decisions were consider ed by Rankin, C. J., in Brojo Gopal Ray Barman v. Amar Chandra Bhattacharya 32 C. W. N. 93" (1928). The learned Chief Justice states at p. 937 " The correct technical use of the word 'judgment' as distinct from ' order ' was considered in England in the case of Ex parte Chinery L. R. 12 Q B. D. 342 (1881) and Onslow v. Commissioner of Inland. Revenue L. R. 25 Q B D. 465 (1890). According to these decisions a judgment is a decision obtained in an action and every other decision is an order. These cases were referred to with approval by the Judicial Committee and applied to the construction of the Letters Patent of the Bombay High Court in Tata Iron and Steel Co. v. Chief Revenue Authority I. L. R. 47 Bom. 724; s. o. 28 fl. W. N. 307 (P. C.) (1923). In view of the use of the word ' order' in cl. 15 of our Letters Patent as they now stand, it may be doubted whether for the present purpose the correct technical use of the word ' judgment' in England is a safeguard (safe guide?) to the meaning of the clause." The order appealed against was one made under the provisions of sec. 5 of the Limitation Act permitting an appeal to be registered though filed out of time. 5 of the Limitation Act permitting an appeal to be registered though filed out of time. Although the Court held that such an order is not appealable as a judgment under cl. 15, it indicated its opinion that the converse order refusing the permission might well be appealable. I ought perhaps to state that it was at one time suggested that the present appeal was incompetent for another reason, namely that the Court was exercising a special jurisdiction under the Patents and Designs Act, in which no provision was made for an appeal against an order under sec. 26. The learned Standing Counsel relied on Rangoon Botatoung Company, Ltd. v. The Collector, Rangoon L. R. 39 I. A. 197: s. c. 16 C. W. N. 961 (1912). I am of opinion however that the circumstances of the present case do not fall within the scope of that decision, but are covered by Hem. Singh v. Basant Das L. R. 63 I. A. 180: s. c. 40 C. W. N. 610 (1936). 141. In conclusion I desire to justify what may seem in the circumstances a superfluous exposition of my views, by repeating that since the Rangoon decision this point is almost invariably taken in appeals against orders preferred under cl. 15. It may in the future save time if 1 make it clear that after consideration I am not convinced that this Court has hitherto been in error in not dismissing such appeals on the ground that only appeals against decrees are contemplated by the clause, and that in consequence I should nor think it necessary to refer the matter to the decision of a Full Bench.