Swastick Pipes Ltd. vs T.T. Industries And Ors.
1999 Latest Caselaw 1141 Del

JUDGMENT

M.K. Sharma, J.

1. This order would dispose of the petition filed by the petitioner against the order dated 21.12.1998 passed by the Assistant Registrar of Trade Marks. By the said order learned Assistant Registrar dismissed the interlocutory petition filed by the petitioners seeking to cross-examine Mr. R.C. Jain, Mr. Bhanwar Lal Baid and Mr. D.M. Biswas.

2. A label mark consisting of the letter 'TT" in a circle device was sought for registration in class 6 for the goods steel pipes and tubes by the petitioners, the aforesaid application was advertised before acceptance. Subsequent thereto the respondent herein filed a notice of opposition objecting to the registration of the impugned mark. The petitioners filed their counter statement and thereafter the respondents filed their evidence under Rule 53. The petitioners were called upon to file their evidence under Rule 54 by a letter dated 13.8.1996. The petitioners sought for extension of time upto 15.6.1997 filing their evidence and thereafter filed the interlocutory petition on 21.8.1997 seeking to cross-examine the witnesses who had filed their evidence by way of affidavits on behalf of the respondents. It is however, to be mentioned herein that the petitioners did not file any evidence as envisaged under Rule 54 of the Rules. The aforesaid interim application was taken up for consideration and the Assistant Registrar of Trade Marks disposed of the said application rejecting the prayer holding that the cross-examination of a person who has filed an affidavit is permissible only in rare cases and cannot be permitted as a rule and that since the petitioners have failed to establish the reasons and circumstances requiring to cross-examine the deponents the said request of the petitioners for cross-examination of the three above named persons cannot be granted. Being aggrieved by the said order the present petition was filed in this Court.

3. It was submitted by the counsel appearing for the petitioners that because of the denial of the opportunity to cross-examine the witnesses whose affidavits by way of evidence have been filed by the respondents the petitioners have been denied the right to test the genuineness and veracity of the contents of the depositions which could only be done by way of cross-examination. He further submitted that the affidavits filed by the witnesses of the respondents are not reliable and, therefore, there is a necessity to cross-examine them. Counsel appearing for the respondents however, submitted that in the application filed by the petitioners seeking to cross-examine the witnesses, no sound and cogent reasons have been given for allowing opportunity to cross-examine and that on the basis of a bald allegation made in the application that the affidavits of the three witnesses are not reliable no opportunity could be given to the petitioners to cross-examine the witnesses, for filing of affidavit by way of evidence is the general rule and opportunity of cross-examination is an exception.

4. In the light of the aforesaid submissions I have perused the record placed before me and in the light of the aforesaid record I propose to dispose of the question which arises before me for consideration. Mainly two questions arise for my consideration in the present appeal filed by the petitioners -

(1) Whether a party has a right to cross-examine the witnesses whose evidence is adduced by the other party by filing affidavits under the provisions of the Trade & Merchandise Marks Act?

(2) Whether in the instant case the request of the petitioners for cross-examination of the three deponents who filed their affidavits by way of evidence was justified?

5. Reference may be made to the provisions of Section 99 of the Act wherein it is provided that in any proceedings under the provisions of the Trade and Merchandise Marks Act before the Registrar evidence shall be given by affidavits. However, the Registrar is empowered in an appropriate case to take oral evidence in lieu of or in addition to such evidence by affidavits. It thus appears that evidence is generally to be received by the Registrar in proceedings pending before him by way of affidavits to be filed by the parties and in an exceptional case where the Registrar is satisfied that the oral evidence in lieu of or in addition to such evidence by affidavits should be taken he could allow such oral evidence being taken. Thus a discretion is provided to the Registrar to consider and allow a party to adduce evidence in an appropriate case for good reasons to adduce such oral evidence, which also includes an opportunity of cross-examination to the other party. The aforesaid discretion is to be exercised by the Registrar judiciously and not arbitrarily and once the said discretion is exercised giving sufficient and good reasons the same is not liable to be interfered with. Thus it is clear that a party does not have an exclusive and vested right to cross-examine a deponent whose evidence has been filed by one of the parties by filing an affidavit under the provisions of the Trade and Merchandise Marks Act. But such a request could be made before the Registrar of adducing oral evidence or to cross-examine a witness but the said request must be coupled with strong and bonafide reasons, for the power to be exercised by the Registrar for allowing a person to cross-examine a witness is recognised as an exceptional procedure and not the general rule.

Therefore, the next question that arises for my consideration is to see whether the petitioners were able to make out a strong and bonafide case calling for exercise of the discretionary exceptional power vested in the Registrar. The application seeking permission to cross-examine the deponents of the three affidavits is on record. In paragraph 5 of the said application a reason has been cited for giving opportunity to cross-examine when it stated that the affidavits of Shri R.C. Jain, Shri Bhanwar Lal Baid and Shri D.M. Biswas were not reliable. It is also stated in paragraph 6 of the said application that the petitioners desire to cross-examine the said witnesses and agree to deposit the required amount of expenses for the aforesaid purpose. It also transpires from record that the respondents filed their evidence by way of affidavits under Rule 53 by their letter dated 6.7.1996 and 27.7.1996. The petitioners were called upon by the Registrar to file their evidence under Rule 54 vide their office letter dated 13.8.1996. The interlocutory application came to be filed only on 29.8.1997 after a lapse of about one year. The Assistant Registrar was justified in holding that the cross-examination of a person who has filed an affidavit is permissible only in rare cases and cannot be permitted as a Rule. Such permission could be granted only when the petitioners are able to establish good and sufficient reasons and circumstances requiring such cross-examination of a deponents.

6. In my considered opinion that reasons and the ground shown by the petitioners in the application cannot be said to be cogent and strong grounds to enable them to cross-examine a deponent. What are the exceptional circumstances under which such permission is sought for have not been explained at all in the application. For the first time before this court a ground has been given that the respondent No. 1 has not filed

any evidence of the alleged death of one of the deponents of respondent No. 1 and therefore, it is necessary to know as to whether the person was alive at the time when the affidavit was filed. If the said deponent whose affidavit has been filed on behalf of respondent No. 1 was not alive, the information sought for by the petitioners as stated in the said paragraph could be stated even by filing an affidavit, for the date of death of the deponent is a matter of record. Even the said plea was not taken before the Assistant Registrar.

7. Under the circumstances and considering the entire facts and circumstances of the case I am of the considered opinion that no infirmity was committed by the Assistant Registrar, of Trade Marks by Rejecting the interlocutory application filed by the petitioners. There is no merit in this petition and the same is accordingly, dismissed.