N.H. Bhagwati JUDGMENT
M.C. Chagla, C.J.
1. This is an appeal from a judgment of Shah J., by which he set aside the order of the Registrar of Trade Marks & directed the Registrar to register the mark of the petitioners as a trade mark. The petitioners applied on 12-1-1943, to the Registrar of Trade Marks for the registration of their mark in connection with cotton sewing thread. There was an opposition by the appellants & the Registrar came to the conclusion that the mark which the respondents sought to register was likely to deceive & cause confusion & therefore he refused to register the mark. From this decision of his an appeal was preferred to the High Court, &, as I just said, Shah J. after hearing the appeal came to the conclusion that the Registrar was wrong & that the respondents were entitled to have their trade mark registered.
2. A preliminary objection has been taken by Mr. Desai that this appeal is not competent. The judgment of Shah J., is subject to appeal provided it constitutes a judgment within the meaning of Clause 15, Letters Patent, & the relevant provisions of that clause material to this discussion are :
"And we do further ordain that an appeal shall lie to the said High Court of Judicature at Bombay from the judgment of one Judge of the said High Court or one Judge of any Division Court, pursuant to Section 108, Govt. of India Act."
Mr. Desai's contention is two-fold : (1) That no appeal lies looking to the provisions of the Trade Marks Act, & (2) that no appeal is competent under Clause 15, Letters Patent. Dealing with the first point, it is urged by Mr. Desai that the Trade Marks Act constitutes a special law dealing with a special subject. It is a self-contained Code & it contains all the provisions with regard to the various tribunals that have got to deal with the matters arising under that Act. In order to appreciate the contention of Mr Desai it is necessary to look at some of the sections. Section 76(1) provides :
"Save as otherwise expressly provided in this Act an appeal shall lie, within the period prescribed by the Central Govt. from any decision of the Registrar under this Act or the rules made thereunder to the High Court having jurisdiction."
Then Sub-clause (3) provides :
"Subject to the provisions of this Act & of rules made thereunder, the provisions of the Civil P. C., 1908, shall apply to appeals before a High court under this Act." And Section 77 provides :
"A High Court make rules consistent with this Act as to the conduct & procedure of all proceedings under this Act before it."
What is argued by Mr. Desai is that Section 76 (1) provides for one appeal only to the High Court, & that appeal having been disposed of by Shah J. no second appeal lay to this Court. Mr. Desai rightly contends that an appeal is the creation of a statute, & it the special law does not give the right to a litigant of having two appeals, we cannot confer that right upon the appellants contrary to the express provision of Section 76 (1). It is further argued that under Section 76 (3) the appeals are to be regulated by the Civil P. C., & there is nothing in the Civil P. C., which provides for a second appeal in cases like those falling under the Trade Marks Act. It is well established, as we shall presently point out, that when a statute directs that an appeal shall lie to a Court already established, then that appeal must be regulated by the practice & procedure of that Court. If therefore Section 76 provides that an appeal shall lie to this High Court & if that appeal is disposed of by a single Judge, if the r........