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2000 DIGILAW 212 (KER)

Low Heat Driers (P) Ltd. v. Biju George

2000-03-31

M.R.HARIHARAN NAIR

body2000
Judgment :- M.R.Hariharan Nair, J. Has the District Court dealing with the patent matter, jurisdiction to consider interlocutory applications filed in the case, once it decides that the case should be transferred to the High Court under provisio to S.104 of the Patent Act? That is the question that arises for decision in the case. 2. Petitioner is the plaintiff. In answer to the plaint claim the defendants filed written statement and counter claim seeking revocation of the patent on 1.7.1999. Thereafter, the petition in which the impugned order was passed was filed by the defendants seeking transfer of the case to the High Court. That petition was allowed. While doing so the Court further held that it cannot dispose of the injunction petition filed earlier for want of jurisdiction and that the petition might also be sent over to this Court for necessary further action. 3. Learned counsel for the petitioner contended that the direction that the case should be transferred does not mean that the court loses its jurisdiction to consider pending petitions and that the Court should have ordered transfer only after disposal of the interlocutory applications filed in the case. 4. S.104 of the Patent Act reads as follows: "No suit for a declaration under S.105 or for any relief under S.106 or for infringement of a patent shall be instituted in any court inferior to a district court having jurisdiction to try the suit. Provided that where a counter-claim for revocation of the patent is made by the defendant, the suit, along with the counter claim, shall be transferred to the High Court for decision.". What can be gathered from the Section is that once challenge is made with regard to the patent claimed by the plaintiff and its revocation is sought for by the defendants, all further things should be done only by the High Court. If interlocutory applications filed in the case are dealt with before considering the question of existence of the patent itself that will affect the rights of the defendants. According to me, what is obvious from the Section is that once a counter claim seeking revocation of patent is filed by the defendants the District Court will lose jurisdiction to proceed with the matter any further. That deprivation of power will necessarily include the power to deal with all interlocutory applications pending as on that day. According to me, what is obvious from the Section is that once a counter claim seeking revocation of patent is filed by the defendants the District Court will lose jurisdiction to proceed with the matter any further. That deprivation of power will necessarily include the power to deal with all interlocutory applications pending as on that day. The Court below has not therefore committed any error of jurisdiction in making the transfer of the case to this Court along with all pending applications. The petitioner can move for further reliefs as and when the case records reach this Court. The revision is without merit. It is accordingly dismissed.