Delhi High Court
Indian Oil Corporation Ltd. vs M/S Agritrico Paper Edge Pvt. Ltd. ... on 23 July, 1998
Equivalent citations: 74 (1998) DLT 593
Author: C Nayar
Bench: C Nayar
ORDER
C.M. Nayar, J.
1. The present petition is directed against the Order dated 19th June, 1996 passed by the Assistant Registrar of Trade Marks by which interlocutory/review petition dated 18th October, 1994 of the petitioner for permission to place on record evidence in support of opposition in accordance with the provisions of Rule 53 of the Trade and Merchandise Marks Rules was disallowed.
2. The learned counsel for the petitioner has contended that it took some time for compilation of documents and the evidence has since been submitted to the Assistant Registrar of Trade Marks on 10th August, 1994.
3. The learned counsel for respondent No.1 has vehemently argued that the option of the petitioner to file evidence in support of opposition has since lapsed and the petitioner can avail of the remedy as provided under Rule 56 of the Rules wherein it is contemplated that "No further evidence shall be left on either side; but in any proceedings before the Registrar, he may at any time, if he thinks fit, give leave to either the applicant or the opponent to leave any evidence upon such terms as to costs or otherwise as he may think fit."
4. The provisions of Rule 53 may now be reproduced as follows:-
"53. Evidence in support of opposition: (1) Within two months from the service on him of a copy of the counter-statement by the Registrar, the opponent shall either leave with the Registrar such evidence by way of affidavit as he may desire to adduce in support of his opposition or shall intimate to the Registrar and to the applicant in writing that he does not desire to adduce evidence in support of his opposition but intends to rely on the facts stated in the notice of opposition. He shall deliver to the applicant copies of any evidence that he leaves with the Registrar under this sub-rule.
(2) If an opponent takes no action under sub-rule (1) within the time therein prescribed, he shall, unless the Registrar otherwise directs, be deemed to have abandoned his opposition."
5. On the basis of the above provision the learned counsel for respondent No. 1 has contended that no further opportunity can be granted to the petitioner. He has made specific reference to the communication dated 6th April, 1994 which reads as follows:-
"NO. TOP/
Government of India
TRADE MARKS REGISTRY
Okhla Industrial Estate,
New Delhi-110020.
From Dated..........
THE DEPUTY REGISTRAR OF TRADE MARKS
To, M/s The Acme Co.
N .Delhi
Sub.: Opposition No. DEL 7912 to application No. 496136
Sir/Gentleman,
With reference to above, I am directed by the Deputy Registrar of Trade Marks to inform you that the Opponents/Applicants request of Form TM-56 filled on 15/3/94 for extension of time upto 14/5/94 for filing evidence in support of the Opposition/Application/ evidence in reply has been allowed. No further extension will be granted.
Yours faithfully,
Sd/-
SENIOR EXAMINER OF TRADE MARKS"
6. Similar reference is made to another communication of 27th June, 1994 which may also be reproduced as under:-
"NO. TOP/3258
Government of India
TRADE MARKS REGISTRY
Okhla Industrial Estate,
New Delhi-110020.
From Dated 27/6/94
THE DEPUTY REGISTRAR OF TRADE MARKS
To,
M/s The Acme Co.
N.Delhi
Sub.: Opposition No. DEL 7912 to application No. 496136-B
Sir/Gentleman,
With reference to above, I am directed by the Deputy Registrar of Trade Marks to inform you that the Opponents/Applicants request of Form TM-56 filed on 14/6/94 for extension of time upto 14/7/94 for filing evidence in support of the Opposition/Application/evidence in reply has been allowed.
No further extension will be granted in any event.
Yours faithfully,
Sd/-
SENIOR EXAMINER OF TRADE MARKS"
7. There is no doubt that evidence which was required to be filed by the petitioner was not filed within time though it is contended by learned counsel that the affidavits were ready but the data had to be collected which caused delay in submission of the evidence in support of opposition.
8. Taking an overall view of the facts and circumstances of the present case, particularly the fact that the petitioner has since submitted its evidence on 10th August, 1994, it will be in the interest of justice to permit evidence of the petitioner to be taken on record and for continuance of proceedings as a consequence thereafter. The provisions of Rule 53 as referred to above clearly gives the power to the Registrar that he can grant such permission and the right of the petitioner cannot be automatically deemed to be abandoned. The Registrar of Trade Marks is, accordingly, directed to take on record the evidence in support of opposition as submitted by the petitioner on 10th August, 1994 subject to payment of costs which are quantified at Rs. 5,000/-. The said amount shall be paid to respondent no.1. The petition is allowed in the above terms.
