Territorial jurisdiction in trade mark suits fails where no jurisdictional facts exist, and amendment cannot retrospectively create forum competence.

Section 134(2) of the Trade Marks Act confers an additional forum only where the plaintiff actually and voluntarily resides, carries on business, or personally works for gain within the chosen jurisdiction. Delhi jurisdiction was rejected because the pleadings showed no office or place of business in Delhi, and sale through an independent dealer or advertisement in Delhi-circulated journals did not amount to carrying on business there or generate a sufficient cause of action. An amendment of the plaint was also refused because a wholly deficient jurisdictional pleading cannot be used to create territorial jurisdiction retrospectively; amendment is available only to clarify existing facts, not to supply a complete absence of them.

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Issues: (i) Whether the court at Delhi had territorial jurisdiction to entertain the suit under Section 134(2) of the Trade Marks Act, 1999 on the facts pleaded. (ii) Whether an application for amendment of the plaint could be entertained to cure the pleaded defect in territorial jurisdiction.

Issue (i): Whether the court at Delhi had territorial jurisdiction to entertain the suit under Section 134(2) of the Trade Marks Act, 1999 on the facts pleaded.

Analysis: Section 134(2) of the Trade Marks Act, 1999 confers an additional forum on a plaintiff who actually and voluntarily resides or carries on business or personally works for gain within the jurisdiction, but that benefit cannot be used to select an unrelated forum divorced from the cause of action. The pleadings showed that the appellant had no office or place of business in Delhi, and the mere sale of its books through an independent dealer did not amount to carrying on business at Delhi. The advertisement of the mark in journals or newspapers circulated in Delhi also did not by itself constitute part of the cause of action or confer jurisdiction. The court applied the settled principle that jurisdiction depends on jurisdictional facts and that the essential part of the business must be shown to be carried on within the forum claimed.

Conclusion: The Delhi court did not have territorial jurisdiction on the pleadings.

Issue (ii): Whether an application for amendment of the plaint could be entertained to cure the pleaded defect in territorial jurisdiction.

Analysis: An amendment may be allowed where the original plaint contains incomplete or ambiguous jurisdictional facts and the amendment merely clarifies an existing basis of suit. However, where the plaint is wholly bereft of facts conferring territorial jurisdiction, the defect is not curable by amendment because the court lacks the factual foundation to proceed. The court held that while territorial jurisdiction is not a matter going to subject-matter competence, the absence of any jurisdictional fact at the time of institution prevents the court from entertaining an amendment intended to create jurisdiction retrospectively. On the facts, even the proposed amendment did not establish Delhi jurisdiction.

Conclusion: The amendment application could not be entertained to create territorial jurisdiction.

Final Conclusion: The appeal failed because the suit was not maintainable before the Delhi court and the pleading defect could not be remedied by amendment.

Ratio Decidendi: Section 134(2) of the Trade Marks Act, 1999 is an additional forum provision that operates only when the plaintiff actually and voluntarily resides or carries on business within the chosen forum, and a plaint wholly lacking jurisdictional facts cannot be amended to create territorial jurisdiction retrospectively.

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