Source: Delhi High Court

Why in News?

Recently, the High Court of Delhi in the matter of Promoshirt SM SA v. Armassuisse and Anr., has held that where a Single Judge had heard an appeal from an original or appellate decree or order, the filing of the second appeal is barred by virtue of Section 100A of the Code of Civil Procedure, 1908 (CPC).

Background

• In this case, the Deputy Registrar of Trademarks permitted the registration of trademarks by Promoshirt SM SA (appellant) under the provisions of the Trade Marks Act, 1999.
• Aggrieved by the orders of the Deputy Registrar of Trademarks, Armasuisse, a federal agency of Switzerland filed an appeal before the Single Judge of the Delhi HC.
• The Single Judge allowed the appeals moved by Armasuisse and set aside the orders passed by the Deputy Registrar of Trademark.
• Challenging the order of the Single Judge, Promoshirt filed the Letter Patent Appeal (LPA) before the HC of Delhi.
• The respondents (Armasuisse) have taken a preliminary objection to the maintainability of the instant LPA asserting that the same would not be maintainable in light of Section 100A of CPC.
• While listing the appeals for further consideration, the HC held that the LPA would not be barred by Section 100A of the Code and would be applicable.

Court’s Observations

• A division bench of Justices Yashwant Varma and Dharmesh Sharma observed that Section 100A of CPC bars the filing of a second appeal where a Single Judge had heard an appeal from an original or appellate decree or order.
• The Court states that Section 100A of CPC prescribes the filing of a further appeal from a decision rendered by a Single Judge of a HC where such a Single Judge was hearing an appeal from an original or appellate decree or order.
  • It would thus appear to mean that where a Single Judge of HC has considered an appeal arising from an original or appellate decree or order, no further appeal would lie.
• The Court added that the intent of Section 100A would be confined to a second appeal when preferred against a judgment of a Single Judge exercising appellate powers, provided it pertained to a decree or order as defined by CPC.
• The bar would thus only operate where the decree or order against which the appeal was preferred before the Single Judge was of a civil court.

Legal Provisions

Section 100A, CPC

• Section 100A which was originally introduced by the Amendment Act of 1976.
  • However, the 1976 amendment was not given effect and this section was amended in the year 2002.
• Section 100A states that notwithstanding anything contained in any Letters Patent for any HC or in any instrument having the force of law or in any other law for the time being in force, where any appeal from an original or appellate decree or order is heard and decided by a Single Judge of a HC, no further appeal shall lie from the judgment and decree of such Single Judge.
• In Salem Advocate Bar Association, Tamil Nadu v. Union of India (2003), the SC upheld the validity of Section 100A of CPC.

Trade Marks Act, 1999

• The Trade Marks Act, 1999 repealed the Trade and Merchandise Marks Act, 1958.
• This Act provides for the registration and better protection of trademarks for goods and services and for the prevention of the use of fraudulent marks.