Order : FACTUAL MATRIX Respondent-plaintiff in this writ petition filed the suit O.S.No.8499/2014 against the petitioner – defendant herein for the following reliefs: (a) “To direct the Defendant or its agents, assignees, nominees or any person acting on their behalf or claiming under them to cease and desist from using the said trade mark “Vistara” belonging to the plaintiff or by any other name/s which are phonetically and visually similar to the word “Vistara” (b) By way of a Permanent Injunction to restrain the defendant or its agents, assignees, nominees or any person acting on their behalf or claiming under them, from using the said trade mark “Vistara” belonging to the plaintiff or by any other name/s which are phonetically and visually similar to the word “Vistara” (c) By way of a Mandatory Injunction direct the defendant to delivery up the infringing labels and marks for destruction or erasure; (d) Direct the defendants to pay the plaintiff a sum of Rupees 1,00,00,000/- (Rupees One Crore only) as damages for passing off of the trade mark “Vistara” belonging to the plaintiff as their own.” contending interalia that plaintiff – company came into being to revolutionalise India’s corporate travel market and it is registered with the Directorate of Industries and Commerce, Government of Karnataka and is carrying on its business in travel and travel related market since its inception in 2008 and has been operating and conducting its business under the Trade Marks “Vistara Voyages” and “Vistara”. It is further contended that the said trade marks of the plaintiff has been widely advertised and extensively used by the plaintiff company in the travel and travel related market since 2008 and same is advertised through its website www.vistara.in and as such the trade marks had been widely publicized locally in India and internationally for both retail and corporate clients. It is also contended that plaintiff has spent huge amount of time and money over a period of six years for the soaring goodwill of its trade mark “Vistara”. 2. It is also contended that plaintiff has spent huge amount of time and money over a period of six years for the soaring goodwill of its trade mark “Vistara”. 2. Plaintiff has further contended that the defendant which is a company incorporated under the provisions of Companies Act, 1956 on 05.11.2013 has commenced its business to provide Airport and allied services to domestic and international airlines which company is a joint venture between Tata Sons Ltd., and Singapore Airlines Ltd., and it intends to create a brand name for them by the name “Vistara”, which is identical and deceptively similar to that of the trade mark of the plaintiff. Hence, on the grounds set out in the plaint it has sought for the reliefs noted hereinabove. On the same lines an application under Order XXXIX Rules 1 and 2 of CPC seeking temporary injunction also came to be filed. 3. On service of suit summons defendant appeared filed its written statement and also objections to the plaintiff’s application for temporary injunction. Simultaneously defendant also filed an application under Order VII Rule 10 and 11 of CPC, 1908 seeking rejection of the plaint or in the alternate to return the plaint for being presented before jurisdictional Court contending interalia that there is no cause of action for the suit and same is liable to be dismissed for lack of jurisdiction and defendant is not carrying on any business in India and also the meetings between the parties does not confer jurisdiction, by giving rise to a cause of action for filing the suit. It was also contended that benefit of Section 134 of the Trade Marks Act, 1999 would not extend to a person whose trade mark application is pending before the Registrar. This amongst other grounds defendant sought for rejection of the plaint. FINDING RECORDED BY TRIAL COURT: 4. It was also contended that benefit of Section 134 of the Trade Marks Act, 1999 would not extend to a person whose trade mark application is pending before the Registrar. This amongst other grounds defendant sought for rejection of the plaint. FINDING RECORDED BY TRIAL COURT: 4. Trial Court after hearing the arguments advanced on behalf of the parties dismissed I.A.No.2 filed by the defendant on the ground that reading of the plaint averments together with the certificate issued by the Joint Director, District Industrial Centre, Bengaluru Urban District would indicate that plaintiff has been permitted to do the activity of travel and forex in Bengaluru and plaintiff is having an office at Bengaluru and there is no record placed by the defendant to indicate that Government of India has permitted the defendant to carryout the business only in Delhi. It is also held that permission to provide Airport and allied services to domestic passengers includes entire territory of India. Hence, trial Court concluded that defendant’s contention of Bengaluru Courts having no jurisdiction to entertain the suit cannot be accepted. On these grounds application came to be rejected by the impugned order dated 08.12.2014. 5. I have heard the arguments of Sriyuths Dyan Chinnappa, learned Senior counsel appearing for the writ petitioner-defendant and Udaya Holla, learned Senior counsel appearing for respondent-plaintiff. CONTENTIONS RAISED ON BEHALF OF PETITIONER/DEFENDANT: 6. It is the contention of Sri. Dyan Chinnappa that there is no pleading with regard to any part of cause of action having arisen within the jurisdiction of this Court and as such the suit is not maintainable before the Civil Court, Bengaluru. He would also draw the attention of the Court to Section 134(1)(4) of the Trade Marks Act, 1999 (for short “Act”) to contend that in a suit for passing off, plaintiff has to establish that the defendant is carrying on the business at the place of suing and when no part of cause of action has arisen within the jurisdiction of Civil Court, Bengaluru suit in question would not be maintainable. He would submit that plaintiff will have to establish with proof of prior use of the trade mark for which trial will have to be conducted and an interactive website would not give rise for cause of action. He would submit that plaintiff will have to establish with proof of prior use of the trade mark for which trial will have to be conducted and an interactive website would not give rise for cause of action. He would further contend that if defendant has to prove the place of business in a suit for `passing off’ Section 134(1)(C) of the Trade Marks Act would become nugatory. He would further contend defendant has no place of business at Bengaluru and website does not constitute cause of action and even otherwise also averments made in the plaint do not disclose as to how the cause of action for the suit arose within jurisdiction of Civil Court, Bengaluru except stating that there was certain discussions and meetings between plaintiff and defendant at Bengaluru, which cannot be part of cause of action. In support of his submissions he has relied upon the following Judgments: (1) (2004) 6 SCC 254 KUSUM INGOTS & ALLOYS VS. UNION OF INDIA (2) (2006) 9 SCC 41 DHODHA HOUSE VS. S.K. MAINGI (3) (1994) 4 SCC 711 OIL AND NATURAL GAS COMMISSION VS. UTPAL KUMAR BABU & ORS. (4) M/S PRESTEEGE PROPERTY DEVELOPERS & ANOTHER VS. M/S PRESTIGE ESTATES PROJECTS PVT. LTD., IN MFA NO. 4954/2006 AND CONNECTED MATTERS DATED ON 2.12.2009 (5) 2001 PTC 907 (MAD) (DB) PREMIER DISTILLERIES VS. SASHI DISTILLERIES (6) 2004 (28) PTC 251 (SC) EXPHAR SA VS. EUPHARMA LABORATORIES (7) (1989) 2 SCC 163 ABC LAMINART VS. A.P. AGENCIES 7. Per contra Sri. Udaya Holla, learned senior counsel appearing for respondent-plaintiff would contend that even if a small part of cause of action accrues the Court will have jurisdiction and cause of action being a bundle of facts would entitle the party to maintain a suit. He would contend that if plaintiff is able to establish one essential fact which is required to be proved by him to secure an order in his favour has arisen within the territory of the Court in whose jurisdiction the suit is filed, then such suit would be maintainable. He would contend that if plaintiff is able to establish one essential fact which is required to be proved by him to secure an order in his favour has arisen within the territory of the Court in whose jurisdiction the suit is filed, then such suit would be maintainable. He would submit that in these days of advanced technology people would read newspapers, magazines via internet and the website of the defendant which can be accessed across the globe would enable the plaintiff to maintain the suit at Bengaluru since even small fraction of cause of action accruing within the jurisdiction of Bengaluru Court would give right to the plaintiff to institute said suit. In support of his submissions he has relied upon the following Judgments: (1) 2010 (1) SCC 457 RAJENDRAN CHINGARAVELU vs. R.K.MISHRA, ADDL.COMMISSIONER OF INCOME TAX & OTHERS (2) 2000 (7) SCC 640 NAVINCHANDRA N. MAJITHIA vs. STATE OF MAHARASHTRA & OTHERS (3) ILR 1985 KAR. 2388 CANARA BANK vs. VASUDEVA RAO (4) AIR 1974 MYSORE 39 (DB) Dr. P.S. RAO vs. THE UNION GOVERNMENT AND OTHERS (5) (1975) 2 SCC 671 SRI NASIRUDDIN vs. STATE TRANSPORT APPELLATE TRIBUNAL (6) (2006) 6 SCC 207 OM PRAKASH SRIVASTAVA vs. UNION OF INDIA & ANOTHER (7) 1977 (2) KAR.L.J. 332 ANJANA MATCH WORKS vs. MATCH GOA PRIVATE LIMITED (8) AIR 1989 SC 1239 A.B.C.LAMINART PVT. LTD & ANOTHER vs. A.P.AGENCIES, SALEM (9) 1965 (1) MYS. L.J. 201 COMMISSIONER OF WEALTH TAX vs. MYSORE COMMERCIAL UNION LTD. (10) (2007) 11 SCC 335 ALCHEMIST LTD., AND ANOTHER vs. STATE BANK OF SIKKIM AND OTHERS (11) 2011 (4) KAR.L.J. 53 (DB) TIMES PUBLISHING HOUSE LIMITED, NEW DELHI AND ANOTHER vs. THE REGISTRAR OF NEWSPAPERS OF INDIA, NEW DELHI AND OTHERS (12) (2004) 6 SCC 264 USHA MEHTA AND OTHERS vs. STATE OF MAHARASHTRA AND OTHERS (13) AIR 1965 MYS. 316 D. MUNIRANGAPPA vs. AMIDAYALA VENKATAPPA AND ANOTHER (14) AIR 1976 SC 342 M/S CHIDAMBARAM MULRAJ AND CO. PVT. LTD., vs. COMMISSIONER OF INCOME TAX, BOMBAY CITY (15) AIR 1962 SC 199 HIRA LAL PATNI vs. SRI KALINATH (16) 2007 (2) CTLJ 362 (DELHI) MILKFOOD LIMITED vs. UNION BANK OF INDIA (17) 154 (2008) DLT 95 FRANK FINN MANAGEMENT CONSULTANTS vs. MR. SUBHASH MOTWANI AND ANR. (18) 2011 Cri.LJ 2769 SUBHIKSHA TRADING SERVICES LTD. AND ANR. vs. AZIM H PREMJI 8. SUBHASH MOTWANI AND ANR. (18) 2011 Cri.LJ 2769 SUBHIKSHA TRADING SERVICES LTD. AND ANR. vs. AZIM H PREMJI 8. Having heard the learned Senior Counsel appearing for the parties and on perusal of the pleadings, case papers and the case laws relied upon by the respective learned advocates this Court is of the considered view that following point would arise for consideration: “Whether the order dated 08.12.2014 passed by the Civil Court, Bengaluru dismissing I.A.No.2 filed by the defendant under Order VII Rule 10 of C.P.C suffers from any patent illegality calling for exercise of jurisdiction under Article 227 of the Constitution of India?” 9. Perusal of the averments made in the plaint would indicate that plaintiff is seeking for a judgment and decree of permanent injunction against the defendant contending interalia that it has been carrying on the business of travel related services to its customers since its inception in 2008 and conducting its business under the Trade Marks “Vistara Voyages” and “Vistara” and its trade mark is widely publicized and as such, it has acquired a distinctive feature by expertise and use of the said trade marks. It is also contended that defendant is a joint venture between Tata Sons Ltd., and Singapore Airlines Ltd., and they have signed memorandum of understanding to establish a new airline in India and have issued a press release on the website styled as www.airvistara.com and on 11.08.2014 have christened its operations as “Vistara” and despite requesting the defendant to cease and desist from using the trade mark “Vistara” belonging to plaintiff, defendant continues to use the word “Vistara” as their own which is identical and deceptively similar to that of the trade mark of the plaintiff and thereby it is creating confusion and deception in the minds of the intending public and Corporates who are looking to avail the similar set of services. Hence, plaintiff has sought for the relief of permanent injunction against defendant. 10. It requires to be noticed that plaintiff has put forward following plea as the ground for cause of action to maintain the suit in question before the Civil Court, Bengaluru: “III. CAUSE OF ACTION: The cause of action arose on 11.08.2014 when the defendant announced that their services will be conducted under the name of Vistara which is the trade mark of the plaintiff and on other dates as referred to in the plaint. CAUSE OF ACTION: The cause of action arose on 11.08.2014 when the defendant announced that their services will be conducted under the name of Vistara which is the trade mark of the plaintiff and on other dates as referred to in the plaint. On 13.10.2014 when the parties held a face to face meeting and that the defendant sought time to come back to the plaintiff but still continued and continues to use the trade mark of the plaintiff.” 11. Defendant along with the written statement filed an interlocutory applicationI.A.No.2 under Order VII Rules 10 and 11 of C.P.C seeking rejection of the plaint or in the alternate return of the plaint alleging lack of jurisdiction. Subsequently a memo came to be filed on 03.12.2014 restricting its prayer in I.A.No.2 for return of plaint under Order VII Rule 10 of C.P.C. 12. It has been specifically contended by the defendant that right flowing from Section 134(1)(a) & (b) of the Act would be available to a proprietor of a registered trade mark to file a suit for infringement of a registered trade mark in a court where such registered proprietor or registered user “actually and voluntarily resides or carries on business or personally works for gain” and said benefit available under Section 134(1)(a) & (b) of the Act does not extend to a person whose application for registration of trade mark is pending before the Registrar of Trade Marks, as it is in the case of plaintiff. Hence, it is contended that Civil Court, Bengaluru does not have jurisdiction to try the suit since plaintiff is not the registered user of the trade mark “Vistara”. PREFACE: 13. There cannot be any dispute to the proposition that even if a small fraction of cause of action accrues or arises within the jurisdiction of a Court, such Court where the suit is instituted would have jurisdiction. To put it differently, if the plaintiff or petitioner as the case may be is able to show atleast one essential fact which is required to be proved by him to secure an order in his favour has arisen within the jurisdiction of the Court where proceedings have been instituted, then such Court will have jurisdiction to proceed with the suit. However, defendant may waive objection regarding territorial jurisdiction. 14. However, defendant may waive objection regarding territorial jurisdiction. 14. Cause of action is a bundle of facts giving rise one or more basis for institution of a suit. It is a factual situation that entitles one person to obtain a remedy from Court of law against another person. Thus, plaintiff who is ‘dominus litus’ can sue in a Court where even a part of cause of action arises. The choice is by reason of the jurisdiction of the Court being attracted by part of cause of action arising within the jurisdiction of the Court. This view is supported by catena of judgments and to ensure that the present Judgment is not burdened by case laws relied upon by parties, the following Judgments are held to be sufficient to support this proposition and as such they are extracted herein below: (2004) 6 SCC 254 – KUSUM INGOTS & ALLOYS LTD., VS. UNION OF INDIA AND ANOTHER Cause of Action: “6. Cause of action implies a right to sue. The material facts which are imperative for the suitor to allege and prove constitute the cause of action. Cause of action is not defined in any statute. It has, however, been judicially interpreted inter alia to mean that every fact which would be necessary for the plaintiff to prove, if traversed, in order to support his right to the judgment of the Court. Negatively put, it would mean that everything which, if not proved, gives the defendant an immediate right to judgment, would be part of cause of action. Its importance is beyond any doubt. For every action, there has to be a cause of action, if not, the plaint or the writ petition, as the case may be, shall be rejected summarily. 11. In Chand Kour vs. Partab Singh [(1887-88) 15 IA 156], it was held: [IA pp. 157-58) "The cause of action has no relation whatever to the defence which may be set up by the defendant, nor does it depend upon the character of the relief prayed for by the plaintiff. It refers entirely to the grounds set forth in the plaint as the cause of action, or, in other words, to the media upon which the plaintiff asks the Court to arrive at a conclusion in his favour." 12. This Court in Oil & Natural Gas Commission v. Utpal Kumar Basu and Ors. It refers entirely to the grounds set forth in the plaint as the cause of action, or, in other words, to the media upon which the plaintiff asks the Court to arrive at a conclusion in his favour." 12. This Court in Oil & Natural Gas Commission v. Utpal Kumar Basu and Ors. ( 1994 (4) SCC 711 ) held that the question as to whether the Court has a territorial jurisdiction to entertain a writ petition, must be arrived at on the basis of averments made in the petition, the truth or otherwise thereof being immaterial. 18. The facts pleaded in the writ petition must have a nexus on the basis whereof a prayer can be granted. Those facts which have nothing to do with the prayer made therein cannot be said to give rise to a cause of action which would confer jurisdiction on the Court. Forum conveniens 30. We must, however, remind ourselves that even if a small part of cause of action arises within the territorial jurisdiction of the High Court, the same by itself may not be considered to be a determinative factor compelling the High Court to decide the matter on merit. In appropriate cases, the Court may refuse to exercise its discretionary jurisdiction by invoking the doctrine of forum conveniens. (See Bhagat Singh Bugga vs. Dewan Jagbir Sawhney (AIR 1941 Cal 670), Madanlal Jalan vs. Madanlal [(1945) 48 CWN 357], Bharat Coking Coal Ltd., vs. Jharia Talkies & Cold storage (P) Ltd., [1997 CWN 122], S.S.Jain & Co., vs. Union of India [ (1994) 1 CHN 445 ] and New Horizons Ltd., vs. Union of India [ AIR 1994 Del 126 ]. (2010) 1 SCC 457 –RAJENDRAN CHINGARAVELU VS. R.K. MISHRA, ADDITIONAL COMMISSIONER OF INCOME TAX AND OTHERS “9. The first question that arises for consideration is whether the Andhra Pradesh High Court was justified in holding that as the seizure took place at Chennai (Tamil Nadu), the appellant could not maintain the writ petition before it. The High Court did not examine whether any part of cause of action arose in Andhra Pradesh. Clause (2) of Article 226 makes it clear that the High Court exercising jurisdiction in relation to the territories within which the cause of action arises wholly or in part, will have jurisdiction. The High Court did not examine whether any part of cause of action arose in Andhra Pradesh. Clause (2) of Article 226 makes it clear that the High Court exercising jurisdiction in relation to the territories within which the cause of action arises wholly or in part, will have jurisdiction. This would mean that even if a small fraction of the cause of action (that bundle of facts which gives a petitioner, a right to sue) accrued within the territories of Andhra Pradesh, High Court of that State will have jurisdiction”. (2000) 7 SCC 640 – NAVINCHANDRA N MAJITHIA VS. STATE OF MAHARASHTRA AND OTHERS “37. The object of the amendment by inserting clause (2) in the article was to supersede the decision of the Supreme Court in Election Commission vs. Saka Venkata Subba Rao ( AIR 1953 SC 210 ) and to restore the view held by the High Courts in the decisions cited above. Thus, the power conferred on the High Courts under Article 226 could as well be exercised by any High Court exercising jurisdiction in relation to the territories within which “the cause of action, wholly or in part, arises” and it is no matter that the seat of the authority concerned is outside the territorial limits of the jurisdiction of that High Court. The amendment is thus aimed at widening the width of the area for reaching the writs issued by different High Courts. 44. In the present case, a large number of events have taken place at Bombay in respect of the allegations contained in the FIR registered at Shillong. If the averments in the writ petition are correct then the major portion of the facts which led to the registering of the FIR have taken place at Bombay. It is unnecessary to repeat those events over again as Mohapatra, J. has adverted to them with precision and the needed details. 45. In the aforesaid situation it is almost impossible to hold that not even a part of the cause of action has arisen at Bombay so as to deprive the High Court of Bombay of total jurisdiction to entertain the writ petition filed by the petitioner. 45. In the aforesaid situation it is almost impossible to hold that not even a part of the cause of action has arisen at Bombay so as to deprive the High Court of Bombay of total jurisdiction to entertain the writ petition filed by the petitioner. Even the very fact that a major portion of the investigation of the case under the FIR has to be conducted at Bombay itself, shows that the cause of action cannot escape from the territorial limits of the Bombay High Court”. (1975) 2 SCC 671 –SRI NASIRUDDIN VS. STATE TRANSPORT APPELLATE TRIBUNAL “37. The conclusion as well as the reasoning of the High Court is incorrect. It is unsound because the expression “cause of action” in an application under Article 226 would be as the expression is understood and if the cause of action arose because of the appellate order or the revisional order which came to be passed at Lucknow then Lucknow would have jurisdiction though the original order was passed at a place outside the areas in Oudh. It may be that the original order was in favour of the person applying for a writ. In such case an adverse appellate order might be the cause of action. The expression “cause of action” is wellknown. If the cause of action arises wholly or in part at a place within the specified Oudh areas, the Lucknow Bench will have jurisdiction. If the cause of action arises wholly within the specified Oudh areas, it is indisputable that the Lucknow Bench would have exclusive jurisdiction in such a matter. If the cause of action arises in part within the specified areas in Oudh it would be open to the litigant who is the dominus litis to have his forum conveniens. The litigant has the right to go to a Court where part of his cause of action arise. In such cases, it is incorrect to say that the litigant chooses any particular Court. The choice is by reason of the jurisdiction of the Court being attracted by part of cause of action arising within the jurisdiction of the Court. Similarly, if the cause of action can be said to have arisen part within specified areas in Oudh and part outside the specified Oudh areas, the litigant will have the choice to institute proceedings either at Allahabad or Lucknow. Similarly, if the cause of action can be said to have arisen part within specified areas in Oudh and part outside the specified Oudh areas, the litigant will have the choice to institute proceedings either at Allahabad or Lucknow. The Court will find out in each case whether the jurisdiction of the Court is rightly attracted by the alleged cause of action”. (2007) 11 SCC 335 – ALCHEMIST LTD., AND VS. STATE BANK OF SIKKIM AND ANOTHER OTHERS “37. From the aforesaid discussion and keeping in view the ratio laid down in a catena of decisions by this Court, it is clear that for the purpose of deciding whether facts averred by the appellant-petitioner would or would not constitute a part of cause of action, one has to consider whether such fact constitutes a material, essential, or integral part of the cause of action. It is no doubt true that even if a small fraction of the cause of action arises within the jurisdiction of the Court, the Court would have territorial jurisdiction to entertain the suit/petition. Nevertheless it must be a “part of cause of action”, nothing less than that”. DISCUSSION AND FINDING: 15. Keeping these principles in mind the application filed by the plaintiff under Order VII Rule 10 of CPC namely I.A.No.2 will have to be examined to find out as to: “Whether in the facts and circumstances obtained in the present case, plaintiff would be entitled to maintain the suit despite the bar prescribed under clause (a) to (c) of subsection (1) of Section 134?” 16. In order to answer the above formulated sub-question it would be necessary to extract Section 134 of the Trade Marks Act, 1999 pressed into service and it reads as under: “134. Suit for infringement, etc., to be instituted before District Court – (1) No suit – (a) for the infringement of a registered trade mark; or (b) relating to any right in a registered trade mark; or (c) for passing off arising out of the use by the defendant of any trade mark which is identical with or deceptively similar to the plaintiff’s trade mark, whether registered or unregistered, shall be instituted in any Court inferior to a District Court having jurisdiction to try the suit. (2) For the purpose of clauses (a) and (b) of subsection (1), a “District Court having jurisdiction” shall, notwithstanding anything contained in the Code of Civil Procedure, 1908 (5 of 1908) or any other law for the time being in force, include a District Court within the local limits of whose jurisdiction, at the time of the institution of the suit or other proceeding, the person instituting the suit or proceeding, or, where there are more than one such persons any of them, actually and voluntarily resides or carries on business or personally works for gain”. 17. On a plain reading of the above provision it would clearly indicate that no suit for infringement of registered trade mark or relating to any right in a registered trade mark or for passing off the plaintiff’s trade mark whether registered or unregistered can be instituted in any District Court. Section 2(w) of the Act defines “registered trade mark” to mean a trade mark which is actually on the register and remaining in force. In this background when Section 27 of the Act is perused it would indicate that under subsection (1) of Section 27 of the Act, no person would be entitled to institute any proceedings to prevent or recover damages for the infringement of an unregistered trade mark. However, subsection (2) of Section 27 of the Act permits action for passing off. 18. Thus, in an action for passing off, arising out of a trade mark which is registered or unregistered the place of suing would be District court having jurisdiction to try the suit. However, if it is an action for the infringement of a registered trade mark or relating to any right in a registered trade mark as indicated in clause (a) and (b) of Section 134(1) the place for suing would be a District Court having jurisdiction and includes the jurisdiction of the court where the person instituting the suit or proceeding actually and voluntarily resides or carries on business or personally works for gain. Thus, in a given case, if the plaintiff’s trade mark is registered and it is actually found in the register of Trade Marks Authority and remaining in force as on the date of suit, such registration would confer a right to the registered proprietor for the exclusive use of such registered trade mark as indicated under Section 28 of the Act. In the event of such right in registered trade mark is infringed, the cause of action to institute the suit for such infringement would arise exclusively within the jurisdiction of the District Court having jurisdiction to try the suit and for said purpose subsection (2) of Section 134 of the Act would be attracted and as such the “District Court” within the local limits of whose jurisdiction, at the time of the institution of the suit or other proceedings, the person instituting the suit actually and voluntarily resides or carry on business or personally works for gain would have jurisdiction. 19. Thus, forum for institution of such suit as contemplated under Section 134 (1)(a) and (b) would be the District Court having jurisdiction to try the suit and for said purpose the “District Court” indicated in Section 134(2) of the Act will have jurisdiction, notwithstanding anything contained in the code of Civil Procedure or any other law for time being in force. It has been held by Hon’ble Apex Court in the case of K.NARAYANAN AND OTHERS VS S.MURALI reported in AIR 2008 SC 3216 to the effect that there is no right in the person to assert infringement even before registration is granted. Thus, it would emerge from above that in order to maintain a suit for infringement of registered trade mark or any right relating to registered trade mark it would be the District court where plaintiff resides or carries on business as indicated in Section 134 (2) of the Act. Hence, as on the date of filing of the suit, if there is no infringement of registered trade mark it cannot be gainsaid that cause of action would be available to file a suit in the District Court where plaintiff carries on business and such suit would be maintainable. However, if right of the person in a registered trade mark is infringed, filing such suit would be the place where plaintiff is carrying on the business. 20. Facts on hand does not even remotely suggest that plaintiff is seeking decree of perpetual injunction against the defendant on the strength of its trade mark being registered and same being infringed. Undisputedly, plaintiff’s application before the trade mark registry filed on 21.07.2014 is still pending. This fact is also admitted by plaintiff in paragraphs 25 and 28 of the plaint. Undisputedly, plaintiff’s application before the trade mark registry filed on 21.07.2014 is still pending. This fact is also admitted by plaintiff in paragraphs 25 and 28 of the plaint. In that view of the matter, plaintiff cannot contend that suit in question would be maintainable under Section 134(1)(a) and (b) read with Section 20 of CPC before the Civil Court, Bengaluru. This view is also fortified by the Judgment of Hon’ble Apex Court in the case of DHODHA HOUSE VS S.K.MAINGI reported in (2006)9 SCC 41 wherein it has held that a cause of action will arise only when a registered trade mark is used and not when an application is filed for registration of trade mark. It has been held by the Apex Court as under: “31. A cause of action will arise only when a registered trade mark is used and not when an application is filed for registration of the trade mark. In a given case, an application for grant of registration certificate may or may not be allowed. The person in whose favour a registration certificate has already been granted (sic) indisputably will have an opportunity to oppose the same by filing an application before the Registrar, who has the requisite jurisdiction to determine the said question. In other words, a suit may lie where an infringement of trade mark or copyright takes place but a cause of action for filing the suit would not arise within the jurisdiction of the Court only because an advertisement has been issued in the Trade Marks Journals or any other journal, notifying the factum of filing of such an application.” (emphasis supplied) 21. Now let me examine as to whether plaintiff’s suit would fall under Section 134(1)(c) of the Act so as to ascertain whether Civil Court at Bengaluru would have jurisdiction to try the suit in question. In the instant case, averments made in the plaint does not even remotely suggest that plaintiff’s claim for perpetual injunction against defendant is based on an alleged action for passing off by the defendant. No prayer for passing off has been sought for by the plaintiff against defendant. In the instant case, averments made in the plaint does not even remotely suggest that plaintiff’s claim for perpetual injunction against defendant is based on an alleged action for passing off by the defendant. No prayer for passing off has been sought for by the plaintiff against defendant. Except to the extent of plea raised in paragraphs 29, 30 and 39 of the plaint alleging that defendant with the malafide intention of trade over the plaintiff’s trade mark and goodwill and giving rise to confusion and deception in the minds of the intending public and corporates who are looking to avail similar set of services. There are no other pleadings in specific. It has been contended by plaintiff in paragraph 39 as under: “It is also submitted that the instances of passing off are not isolated due to bonafide mistake and are likely to be repeated. The Defendant’s use of the trade mark “Vistara” is likely to pass off their business as those of the plaintiff.” Though plaintiff has made an attempt to contend that defendant is attempting to pass off the mark “Vistara” as its mark, there is no prayer sought for by the plaintiff in aid of said contention. Infact the prayers 1 and 2 sought for in the plaint would clearly indicate that plaintiff on the basis of the alleged infringement of its trade mark by the defendant is seeking for an order of perpetual injunction which would also not fall within clauses (a) and (b) of subsection (1) of Section 134 inasmuch as, the trade mark claimed by plaintiff is not registered and the facts obtained in the present case would also clearly indicate that it is not an action for passing off brought by the plaintiff. Hence, this Court is of the considered view that plaintiff’s case would also not fall under clause (c) of subsection (1) of Section 134 of the Act to enable the plaintiff to institute the suit at Civil Court, Bengaluru. Further, defendant is undisputedly having its office at Delhi and has not yet commenced its business operations at Bengaluru and as such, the suit in question instituted at Bengaluru ought to be held as premature. It is also not in dispute that no branch office of defendant is located at Bengaluru and even plaint averments does not even remotely suggest about any such plea having been raised. It is also not in dispute that no branch office of defendant is located at Bengaluru and even plaint averments does not even remotely suggest about any such plea having been raised. It has been held by the Hon’ble Apex Court in the case of DHODHA HOUSE VS S.K.MAINGI reported in (2006) 9 SCC 41 that where no cause of action arose, such Court would lack territorial jurisdiction to try the suit. It has been held: “24. It is trite law that a judgment and order passed by the Court having no territorial jurisdiction would be a nullity. 26. A judgment or order passed by a Court lacking territorial jurisdiction, thus, would be coram non judice. Thus, if a District Court, where the plaintiff resides but where no cause of action arose otherwise, adjudicates a matter relating to infringement of trade mark under the 1958 Act, its judgment would be a nullity. 31. A cause of action will arise only when a registered trade mark is used and not when an application is filed for registration of the trade mark. In a given case, an application for grant of registration certificate may or may not be allowed. The person in whose favour a registration certificate has already been granted (sic) indisputably will have an opportunity to oppose the same by filing an application before the Registrar, who has the requisite jurisdiction to determine the said question. In other words, a suit may lie where an infringement of trade mark or copyright takes place but a cause of action for filing the suit would not arise within the jurisdiction of the Court only because an advertisement has been issued in the Trade Marks Journals or any other journal, notifying the factum of filing of such an application.” 22. In the instant case, defendant does not reside at Bengaluru, no business is carried at Bengaluru, no branch of defendant is located at Bengaluru. Since, defendant has not commenced its operations at Bengaluru, it cannot be gainsaid by plaintiff that there would be confusion in the mind of public at large or travellers in particular about the services of plaintiff and defendant being deceptively similar. Thus, viewed from any angle, it can be held that no part of cause of action arose at Bengaluru. Since, defendant has not commenced its operations at Bengaluru, it cannot be gainsaid by plaintiff that there would be confusion in the mind of public at large or travellers in particular about the services of plaintiff and defendant being deceptively similar. Thus, viewed from any angle, it can be held that no part of cause of action arose at Bengaluru. In that view of the matter, the contentions raised by learned Senior counsel appearing on behalf of petitioner-defendant deserves to be accepted and accordingly it is hereby accepted. 23. Though impugned order is being set aside, it would be necessary for the trial court to pass orders on I.A.No.2 formally allowing the said application inasmuch as the aggrieved party would be entitled to question or challenge the same in an appeal under Order 43 Rule 1(a) of CPC and as such following directions are issued to the trial court. 24. For the reasons aforestated, I proceed to pass the following: ORDER 1. Writ Petition is hereby allowed. 2. Order dated 08.12.2014 Annexure-A passed by XVIII Additional Sessions Judge, Bengaluru in O.S.No.8499/2014 is hereby quashed. 3. In view of the observations made herein above, XVIII Additional Sessions Judge, Bengaluru is hereby directed to pass necessary orders allowing I.A.No.2 keeping in mind Rule 10 and 10A of Order VII of CPC to enable the parties to take further steps in the matter. 4. Costs made easy. Ordered accordingly.