REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION
TRANSFER PETITION (CIVIL) NOS. 1233-1237 OF 2008
D.A.V. Boys Sr. Sec. School Etc.Etc. .... Petitioner(s)
Versus
DAV College Managing Committee .... Respondent(s)
WITH
TRANSFER PETITION (C) NOS. 243-244 OF 2009
AND
TRANSFER PETITION (C) NO. 667 OF 2009
JUDGMENT
P. Sathasivam, J.
1) The petitioners in Transfer Petition (Civil) Nos. 1233-
1237 of 2008 and 243-244 of 2009 are schools run by the
Tamil Nadu Arya Samaj Education Society (in short “the
Society”) which is registered under the Societies
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Registration Act, 1860. According to the petitioners, the
Society was registered on 02.01.1975 and has been
running and managing schools for the last more than 30
years. The schools are being run under a specific system
of education propounded by “Swami Dayanand Saraswati”
known as “Dayanand Anglo Vedic” system (in short
“DAV”). The petitioners have been using the expression
“DAV” with its schools for the last more than 30 years.
The respondent-Committee is running about 700
educational institutions. On 16.01.2005, the respondent-
Committee has obtained a trademark registration in
respect of the letters “DAV” and “Dayanand Anglo Vedic”
under Class 41 which is a service mark. On 04.08.2008,
the respondent-Committee issued a notice to the
petitioners of “cease and desist”, namely, the petitioners
should not use the words “DAV” for its schools. On
25.08.2008, the petitioners through their advocate replied
to the said notice informing that the schools are being run
by the Society for the last 38 years with the words “DAV”.
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The respondent-Committee filed four suits under Section
134 of the Trade Marks Act, 1999 before the District
Court, Tis Hazari, Delhi against various schools run by
the Society at Chennai individually without making the
Society as a party.
2) Transfer Petition (Civil) No. 667 of 2009 is filed by
another petitioner from Chennai alleging that it is running
and managing a school using the expression “DAV” for
more than 24 years. It also raised similar plea seeking
transfer of suit No.417 of 2008 titled DAV College
Managing Committee vs. Dayanand Anglo Vedic School
pending in Tis Hazari Court, Delhi to the original side
jurisdiction of the High Court of Madras.
3) Opposing the transfer petitions, the respondent-
Committee which has filed suits at Delhi has highlighted
that it is a duly registered society with the Registrar of
Societies under the Societies Registration Act, XXI of
1860. Dayanand Anglo Vedic College Trust and
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Management Society is a charitable Educational Society
founded by a few good people and followers of His
Holiness Swami Dayanand Saraswati to spread his
teachings and Principals of Arya Samaj including
Mahatma Hasraj and Master Sewaram. At present, they
are managing about 700 educational institutions
throughout India. The defendant which is a school
situated in Chennai in the State of Tamil Nadu without
the consent and approval of the plaintiff dishonestly and
with mala fide intention to earn goodwill and reputation of
the plaintiff-society, started running an educational
institution under the name and style DAV by infringing
the registered trade mark and passing off the copy right of
the plaintiff-society by using its acronym DAV in the
similar/deceptively similar manner as of the plaintiff.
4) Heard Mr. Mukul Rohatgi, learned senior counsel for
the petitioners in T.P. (C) Nos. 1233-1237 of 2008 and
243-244 of 2009, Ms. Gladys Daniel, learned counsel for
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petitioner in T.P. (C) No. 667 of 2009 and Mr. Ranjit
Kumar, learned senior counsel for the respondent-
Committee.
5) The petitioners have filed these petitions praying to
transfer the suits filed by the respondent-Committee
pending before Tis Hazari Courts, Delhi to the City Civil
Court, Chennai, Tamil Nadu on the following grounds:
(i) That no cause of action has arisen at Delhi;
(ii) That the petitioners do not have any school at
Delhi;
(iii) That there are large number of students
studying in these schools who have been made
defendants by the Committee in the suits filed at
Delhi and all of them are in Chennai;
(iv) The Secretary of the Society since the very
inception, Mr. S. Jaidev, who is of the age of 84
years and being very old, it is difficult for him to
come to Delhi.
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(v) Most of the witnesses to be examined on the side
of the petitioners/defendants are in Tamil Nadu
and they are conversant with the language of
Tamil only. Likewise most of the documents are
in Tamil and it is difficult to mark the same in
the proceedings at Delhi.
(vi) The petitioner in Transfer Petition No. 667 of
2009 also contended that the person who is
managing the affairs of their society is aged
about 71 years and it is difficult for him to
attend the hearing at Delhi.
6) The respondent-Committee, while denying all the
claims of the petitioners, highlighted that in view of the
fact that about 700 institutions have been spread all over
India if the suits filed at Delhi are transferred to Chennai
as claimed, there is likelihood of similar petitions by
others particularly from other States and as on date 50
other suits are pending in different States. It is also
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stated that the President who is running the Trust at
Delhi is aged about 95 years. It is also contended that
considering the relief prayed for and the suits having been
filed under Section 134 of the Trade Marks Act, 1999 on
the jurisdiction point the Court at Delhi alone is
competent to try the same. The allegation relating to
inconvenience due to language is applicable to the
respondent also and prayed for dismissal of all the
transfer petitions.
7) In order to appreciate the rival contentions, it is
useful to refer Section 25 of the Civil Procedure Code
which gives power to this Court to transfer suits etc.
which reads thus:
“25. Power of Supreme Court to transfer suits, etc. –
(1) On the application of a party, and after notice to the
parties, and after hearing such of them as desire to be
heard, the Supreme Court may, at any stage, if satisfied
that an order under this section is expedient for the
ends of justice, direct that any suit, appeal or other
proceeding be transferred from a High Court or other
Civil Court in one State to a High Court or other Civil
Court in any other State.”
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8) Transfer of suits under Sections 24 and 25 have been
considered by this Court in various decisions. In Maneka
Sanjay Gandhi v. Rani Jethmalani, (1979) 4 SCC 167,
this Court stated: (SCC p. 169, para 2)
“2. Assurance of a fair trial is the first imperative of the
dispensation of justice and the central criterion for the
court to consider when a motion for transfer is made is
not the hypersensitivity or relative convenience of a
party or easy availability of legal services or like mini
grievances. Something more substantial, more
compelling, more imperilling, from the point of view of
public justice and its attendant environment, is
necessitous if the Court is to exercise its power of
transfer. This is the cardinal principle although the
circumstances may be myriad and vary from case to
case.” (Emphasis supplied)
9) Similarly in Subramaniam Swamy (Dr.) V.
Ramakrishna Hegde, (1990) 1 SCC 4 dealing with power
of this Court to transfer a case under Section 25 of the
Code, A.M. Ahmadi, J. (as His Lordship then was) stated:
(SCC p. 9, para 8)
“8. Under the old section the State Government was
empowered to transfer a suit, appeal or other
proceeding pending in the High Court of that State to
any other High Court on receipt of a report from the
Judge trying or hearing the suit that there existed
reasonable grounds for such transfer provided that the
State Government of the State in which the other High
Court had its principal seat consented to the transfer.
The present Section 25 confers the power of transfer on
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the Supreme Court and is of wider amplitude. Under the
present provision the Supreme Court is empowered at
any stage to transfer any suit, appeal or other
proceeding from a High Court or other civil court in one
State to a High Court or other civil court of another
State if it is satisfied that such an order is expedient for
the ends of justice. The cardinal principle for the
exercise of power under this section is that the ends of
justice demand the transfer of the suit, appeal or other
proceeding. The question of expediency would depend
on the facts and circumstances of each case but the
paramount consideration for the exercise of power must
be to meet the ends of justice. It is true that if more
than one court has jurisdiction under the Code to try
the suit, the plaintiff as dominus litis has a right to
choose the court and the defendant cannot demand that
the suit be tried in any particular court convenient to
him. The mere convenience of the parties or any one of
them may not be enough for the exercise of power but it
must also be shown that trial in the chosen forum will
result in denial of justice. Cases are not unknown where
a party seeking justice chooses a forum most
inconvenient to the adversary with a view to depriving
that party of a fair trial. Parliament has, therefore,
invested this Court with the discretion to transfer the
case from one court to another if that is considered
expedient to meet the ends of justice. Words of wide
amplitude–for the ends of justice–have been advisedly
used to leave the matter to the discretion of the Apex
Court as it is not possible to conceive of all situations
requiring or justifying the exercise of power. But the
paramount consideration must be to see that justice
according to law is done; if for achieving that objective
the transfer of the case is imperative, there should be no
hesitation to transfer the case even if it is likely to cause
some inconvenience to the plaintiff. The petitioner’s plea
for the transfer of the case must be tested on this
touchstone.” (Emphasis supplied)
10) In Kulwinder Kaur alias Kulwinder Gurcharan
Singh vs. Kandi Friends Education Trust and Others,
(2008) 3 SCC 659, this Court considered various tests to
be applied in respect of transfer of suits under Sections 24
and 25 of the Code and in para 23 observed thus:
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23. Reading Sections 24 and 25 of the Code together
and keeping in view various judicial pronouncements,
certain broad propositions as to what may constitute a
ground for transfer have been laid down by courts. They
are balance of convenience or inconvenience to the
plaintiff or the defendant or witnesses; convenience or
inconvenience of a particular place of trial having regard
to the nature of evidence on the points involved in the
suit; issues raised by the parties; reasonable
apprehension in the mind of the litigant that he might
not get justice in the court in which the suit is pending;
important questions of law involved or a considerable
section of public interested in the litigation; “interest of
justice” demanding for transfer of suit, appeal or other
proceeding, etc. Above are some of the instances which
are germane in considering the question of transfer of a
suit, appeal or other proceeding. They are, however,
illustrative in nature and by no means be treated as
exhaustive. If on the above or other relevant
considerations, the court feels that the plaintiff or the
defendant is not likely to have a “fair trial” in the court
from which he seeks to transfer a case, it is not only the
power, but the duty of the court to make such order.
11) Section 25 of the Code itself makes it clear that if any
application is made for transfer, after notice to the parties,
if the Court is satisfied that an order of transfer is
expedient for the ends of justice necessary direction may
be issued for transfer of any suit, appeal or other
proceedings from a High Court or other Civil Court in one
State to another High Court or other Civil Court in any
other State. In order to maintain fair trial, this Court can
exercise this power and transfer the proceedings to an
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appropriate Court. The mere convenience of the parties
may not be enough for the exercise of power but it must
also be shown that trial in the chosen forum will result in
denial of justice. Further illustrations are, balance of
convenience or inconvenience to the plaintiff or the
defendant or witnesses and reasonable apprehension in
the mind of the litigant that he might not get justice in the
Court in which suit is pending. The above-mentioned
instances are only illustrative in nature. In the interest of
justice and to adherence of fair trial, this Court exercises
its discretion and order transfer in a suit or appeal or
other proceedings.
12) In the light of the above principles, let us consider
the claim of the parties. We have already referred to the
fact that the respondent-Committee has instituted various
suits at Delhi under Section 134 of the Trade Marks Act
impleading the petitioners herein as defendants. The
respondent has also pointed out that more than 50 suits
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have been pending all over India. Though the petitioners
have raised the problem of distance, language and age of
the President/Secretary of their respective Trust, we are of
the view that same hurdles are applicable to the
respondent also if their suits are being transferred outside
Delhi. It is true that the petitioners who are defendants in
order to defend their case necessarily have to spend
sometime at Delhi. However, in view of the amendment
made in the Code of Civil Procedure in respect of recording
evidence and of the fact that Delhi being a Capital of this
country and the petitioners who are running educational
institutions have to visit this place for their official work,
we are satisfied that balance of convenience and all other
attended circumstances are not in favour of the petitioners
transferring the suit to their place. As rightly pointed out
by learned senior counsel for the respondent, if the
request of the petitioners are acceded to, taking note of
the fact that their institutions numbering more than 700
have been spread over India and 50 other suits are
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pending in various places, it would be more difficult for
the respondent/plaintiff to continue with their suits and
in that event their sufferings would be more than the
inconvenience to be caused by the petitioners/defendants.
13) We are also satisfied that it would be far more
practical and in the best interest of the parties that the
proceedings are conducted in Delhi. Further, if the
petitioners’ claim is accepted, it would open floodgates for
similarly placed persons infringing registered trade marks
to approach this Court to transfer their suits to the
locations convenient to themselves all over India and
defeat the purpose of Section 134 of the Trade Marks Act
which confers a jurisdiction with respect to a registered
trade mark. Since the issue relating to jurisdiction
particularly whether Court at Delhi has jurisdiction or not
is to be decided by the Trial Court, we are not expressing
anything on the merits of their claims.
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14) In the light of what has been stated above, we do not
find any valid ground for transfer of the suits as claimed
by the petitioners. Consequently, all the transfer petitions
are dismissed. However, we make it clear that we have
not expressed anything on the merits of either parties and
it is for them to plead and establish their respective case.
No order as to costs.
…………………………………….J.
(P. SATHASIVAM)
……………………………………J.
(ANIL R. DAVE)
NEW DELHI;
JULY 23, 2010.
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