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Judgment
Honourable Mr. Justice Ravi R. Tripathi
The appellants-original applicants-plaintiffs have filed the present appeal being aggrieved by judgment and order dated 24.07.2012 passed by the learned Single Judge in OJ Civil Application No. 501 of 2011 in Civil suit No. 1 of 2007. The learned Single Judge was pleased to reject the application and disallow production of a particular document. Learned Advocate General Mr. Kamal Trivedi appearing with learned Advocate Mr. Y.J. Trivedi for the appellants submitted that the learned Single Judge has erred in not allowing production of the document and in addition thereto, has further erred in holding that the document sought to be produced is not relevant to the controversy involved in the suit.
1.1 Learned Advocate General for the appellants invited attention of the Court to (1) Clause-(j) of Subsection (1) of Section 2, (2) Clause-(j) of Sub-section (1) of Section 2, (3) Sections- 7, 8, Sub-section (2) of Section 13, and (4) Section 64 of the Patents Act, 1970 and submitted that if the production of the document in question is not permitted, it will result into travesty of justice. Learned Advocate General for the appellants relied upon a judgment of the Hon''ble the Apex Court in the matter of Shah Babulal Khimji Vs. Jayaben D. Kania and Another, . He invited attention of the Court to paras-123, 126, 137 and 143 and submitted that the present appeal is required to be allowed and the order passed by the learned Single Judge, not allowing production of document in question be quashed and set aside so as to see that the appellants are not non-suited by non-production of the document in question.
1.2 Learned Advocate General for the appellants alternatively submitted that by production of the document in question, the opponents are not going to be adversely affected or prejudiced.
1.3 In support of his submissions, learned Advocate General for the appellants relied upon a decision of the Hon''ble the Apex Court in the matter of Employer in Relation to Managment of Central Mine Planning and Design Institute Ltd. Vs. Union of India and Another, . He invited attention of the Court to para-13 and submitted that the Hon''ble the Apex Court, relying upon the earlier judgment in the case of Shah Babulal Khimji (supra), has held that:-
The term ''judgment'' should receive a much wider and more liberal interpretation than the word ''judgment'' used in the Code of Civil Procedure, when it comes to decide whether a Letters Patent Appeal is maintainable or not.
1.4 Learned Advocate General for the appellants submitted that the Hon''ble the Apex Court has referred to three types of judgments which are: (1) a final judgment, (2) a preliminary judgment and (3) intermediary or interlocutory judgment. In this regard, he invited attention of the Court to the relevant observations made by the Hon''ble the Apex Court in para-13, which read as under:-
xxxx (1) xxxx
(2) xxxx
(3)..... In this category fall orders referred to in clauses (a) to (w) of Order 43 Rule 1 and also such other orders which possess the characteristics and trappings of finality and may adversely affect a valuable right of the party or decide an important aspect of the trial in an ancillary proceeding.
(emphasis supplied)
1.5 Learned Advocate General for the appellants also invited attention of the Court to the order passed by the learned Single Judge in this very matter on 21.08.2007 and submitted that if for one purpose, the factum of registration /grant of patent in foreign country can be taken into consideration, the learned Single Judge in the order impugned also, should have allowed production of the document.
Learned Senior Advocate Mr. S.N. Soparkar with learned Advocate Mr. Pranav Trivedi for opponent No. 2 raised a preliminary issue and submitted that the present appeal is not maintainable. In this regard, he too relied upon the judgment of the Hon''ble the Apex Court in the matter of Shah Babulal Khimji (supra) and invited attention of the Court to the fact that the majority judgment has held in para-113 as under:-
Thus, under the Code of Civil Procedure, a judgment consists of the reasons and grounds for a decree passed by a court. As a judgment constitutes the reasons for the decree it follows as a matter of course that the judgment must be a formal adjudication which conclusively determines the rights of the parties with regard to all or any of the matters in controversy. The concept of a judgment as defined by the CPC seems to be rather narrow and the limitations engrafted by sub-s. (2) of s. 2 cannot be physically imported into the definition of the word ''judgment'' as used in cl. 15 of the Letters Patent because the Letters Patent has advisedly not used the terms ''order'' or ''decree'' anywhere. The intention, therefore, of the givers of the Letters Patent was that the word ''judgment'' should receive a much wider and more liberal interpretation than the word ''judgment'' used in the Code of Civil Procedure. At the same time, it cannot be said that any order passed by a Trial Judge would amount to a judgment; otherwise there will be no end to the number of orders which would be appealable under the Letters Patent. It seems to us that the word ''judgment'' has undoubtedly a concept of finality in a broader and not a narrower sense.....
(emphasis supplied)
2.1 Learned Senior Advocate for opponent No. 2 then invited attention of the Court to para-115 of the judgment and submitted that the Hon''ble the Apex Court has conclusively held in the said para that question of admissibility or relevance of a document can never be a subject matter of appeal under the Letters Patent. Para-115 reads as under:-
Thus, in other words every interlocutory order cannot be regarded as a judgment but only those orders would be judgments which decide matters of moment or affect vital and valuable rights of the parties and which work serious injustice to the party concerned. Similarly, orders passed by the Trial Judge deciding question of admissibility or relevancy of a document also cannot be treated as judgments because the grievance on this score can be corrected by the appellate court in appeal against the final judgment.
(emphasis supplied)
2.2 Learned Senior Advocate for the opponent No. 2 then invited the attention of the Court to para-120, wherein the Hon''ble the Apex Court was pleased to enlist as many as 15 orders which are stated to be judgments for the purpose of maintaining an appeal under the Letters Patent. After inviting attention of the Court to the list, learned Senior Advocate for opponent No. 2 submitted that this list does not contain an order of the nature of the order impugned.
2.3 The learned Senior Advocate for opponent No. 2 then submitted that in light of the contents of para-115 of the said judgment, it is clear that the present appeal is not maintainable under the Letters Patent. He submitted besides that, so far as aspect of relevancy of the document is concerned, the case of opponent No. 2 is that the document in question is not at all relevant to the controversy involved in the suit and if the document is not permitted to be produced, it will not affect the case of either party. Learned Senior Advocate for opponent No. 2 submitted that what is sought to be produced by the appellants herein is a certificate issued by the Australian Government under I the signature of Commissioner of Patents under the Patents Act, 1990. In that document, it is mentioned that the term of the ''patent'' will be 20 years from 28.05.2004, whereas the date of issuance of this letter is 30th day of June 2011. Learned Senior Advocate for opponent No. 2 submitted that true it is that by this document, ''patent'' is granted in favour of the present appellants, but by this document, the case of opponent No. 2 that the present appellants are not the inventors of the invention of which they have obtained the ''patent'' in India or for which they are granted patent in the country of Australia, does not get dislodged. In this regard, learned Senior Advocate for opponent No. 2 invited attention of the Court to Section 64 of the Patents Act, 1970. Learned Senior Advocate for opponent No. 2 submitted that u/s 64 of the Act, it is nowhere provided that if one is having a ''patent'' for something in any foreign country will be a ground for not to revoke the patent in India, even when he is not able to establish that he is the inventor. The learned Senior Advocate for opponent No. 2 submitted that if the Indian law wanted to give recognition to the ''patent'' granted by any foreign country, it could have been done by simple provision that, "any person having a ''patent'' in any country will be accepted to be the ''inventor'' and will be entitled to have ''patent'' in India too.
2.4 Learned Senior Advocate for opponent No. 2 submitted that but the law is otherwise. One who holds a patent in a foreign country does not give rise to a presumption that he is the ''inventor'' under the Indian law. In view of this clear position of law, the controversy involved cannot be resolved with the help of the document sought to be produced by the appellants. It will be of no help to the appellants in the matter of defending the ''patent'' which is prayed to be revoked u/s 64 of the Act. Therefore, the learned Single Judge is right in holding that the document is not relevant so as to resolve the controversy involved in the suit.
The Court having considered the rival submissions of both the parties and founds that the appeal is not maintainable, in view of the observations made by the Hon''ble the Apex Court in the case of Shah Babulal Khimji (supra), set out in para-115.
3.1 Coming to the ''relevancy'' aspect, taking into consideration the submissions made by the learned Senior Advocate for opponent No. 2, the arguments made by the learned Advocate General for the appellants to convince this Court that the document is relevant, are found to be unacceptable and the same are rejected.
In the result, the appeal fails and the same is dismissed.