Jaininder Jain And Ors. vs Registrar Of Trade Marks And Ors.
2002 Latest Caselaw 753 Del

JUDGMENT

Devinder Gupta, J.

1. The appellants filed a petition in this Court under Section 56 of the Trade and Merchandise Marks Act (hereinafter referred to as "the Act") seeking removal/rectification/correction of the registration alleged to have been illegally made on 30.10.1996 by respondent No. 1 in favor of respondents 3, 4, 5 and 6 in respect of the trade mark Nos. 376224, 384556, 463530 and 486516. Main crux of the petition being that respondents 3 to 6 have obtained the Trade Marks by misrepresentation and concealment of material facts and respondents 1 and 2 failed in discharging their duties to maintain purity of the Register. Along with the said petition, an application for interim relief was filed praying for staying the operation of the order passed on 30.10.1996 by respondent No. 1. By the impugned order passed on 1.5.1997, the said interim application was dismissed by the learned Single Judge, who declined to grant stay of the impugned order. The present appeal has been preferred against the said order. The appeal was heard on merits. Learned counsel for the parties made elaborate submissions on the entire petition as if they were to argue the said petition on merits rather to confine their arguments to the legality and validity of the impugned order. The question, which arises for consideration in this appeal would be that whether in the facts and circumstances of the case the appellants were entitled to stay of the operation of the order passed by respondent No. 1 during pendency of the petition filed in this Court under Section 56 of the Act.

2. The facts in brief are that appellant No. 1 and respondents 3 and 4 are the sons of appellant No. 2. Appellant No. 3 and respondents 5 and 6 are the wives respectively of appellant No. 1 and respondents 3 and 4. Respondent No. 1 is the Registrar of Trade Marks. Respondent No. 2 is the Controller (General) of Patents, Designs and Trade Marks.

3. The appellants have stated the background in which they claimed the reliefs saying that in the year 1959 appellant No. 2 established Kangaro Stationery Industry as a Sole Proprietorship, which in 1963 was converted into a partnership firm M/s. Kangaro Industries with appellant No. 2 at the helm of affairs. With the passage of time, other firms and companies were formed/incorporated, which included Jain Manufacturing Company incorporated in the year 1978, M/s. Kanin (India) Private Limited in September, 1983, M/s. Kangaro India Private Limited in May, 1987 and M/s. Kanin (India) in the year 1990. In all these units, Shri Janki Dass Jain, appellant No. 2 and his family members, namely, appellant Nos. 1 and 3 as respondents 3 and 4 with their wives respondents 5 and 6 were either partners or Directors or Shareholders.

4. From time to time 5 Trade Marks were registered as "Kangaro" in respect of goods manufactured and produced by the aforesaid firms/companies. The description of which are:-

  Sl.  Regd.   Name            Class     Date of Registration.
No.        No.
1.       376224          Kangaro  16     25.05.1981
2.       384556          Kangaro  16     23.12.1981
3.       463530          Kangaro   7     24.11.1986
4.  486510          Kangaro  16     26.02.1988
5.  486516          Kangaro          8         26.02.1988
 

5. There has been some disagreement in the running and carrying on the business jointly, on 20.3.1992 a Deed of Agreement had been executed whereby distribution of 3 partnership firms was crystalized. It had been agreed that the three partnership firms would continue to manufacture different items as indicated in the agreement and further more the registration rights of the Trade Marks would be accordingly amended in conformity with the actual production of goods by the respective firms.
 

6. On 16.8.1994 necessary requests were made in Form TM-36 to respondent No. 1 for carrying out modification/amendment in Trade Mark No. 376224 and Trade Mark No. 486510 in conformity with the agreement dated 20.3.1992. Modifications/amendments were carried out on 25.8.1994. In the year 1994 especially in its letter half differences arose between the members of the family. Accordingly, in December, 1994 it was mutually agreed and decided to separate and distribute the various concerns, their management and control amongst the family members of appellant No. 2. It was decided that respondents 3 and 4 with their families will separate from the rest of the family i.e. appellant No. 2 his son Jaininder Jain and daughter-in-law Smt. Kiran Jain (appellants 1 and 3). It was agreed and understood that respondents 3 and 4 will take over the partnership firms Kangaro Industries and Kanin (India). As regards the 3rd partnership firm, Jain Manufacturing Co., it was decided that the same will be taken over by the appellants. These understandings were acted upon. Since issues like ownership and consequential assignment of trade marks, valuation of goodwill and other fixed assets were pending so Shri Ram Kumar Jain and Shri Raj Kumar Behal both of Ludhiana were appointed as arbitrators vide agreement dated 10.4.1995. The parties again sat together and reduced into writing the earlier oral settlement and also settled the remaining issues like assignment of trade mark etc. The said agreement was duly signed.

7. The distribution of the firms/companies/proprietorship concerns were as under:-1. APPELLANTS' SHARE

(i) M/s. Jain Manufacturing Company

Appellants No. 1 to 3 joined as partners on 1.1.1995 and respondents 4 and 5 retired on 31.3.1995.

(ii) M/s. Kanin (India) Private Limited

Respondents 3 to 6 and their family members transferred all their shares in favor of appellants and their family members on 28.10.1995.

(iii) M/s. Kangaro India Private Limited

Respondents 3 to 6 and their family members transferred all their shares in favor of appellants and their family members on 28.10.1995.

2. RESPONDENTS' SHARE

(i) On 31.3.1995, appellant No. 3 retired and on 1.4.1995 respondents 4 to 6 were added as partners.

On 15.5.1995 appellant No. 2 retired from the firm.

(ii) M/s. Kanin (India)

Respondent Nos. 3 to 5 Along with daughter of respondent No. 3 and son of respondent No. 4 were added as partners on 1.1.1995. Appellant No. 1 retired from firm on 31.3.1995.

8. Appellant No. 2 was to be associated in the firm M/s. Jain Manufacturing Company, which had gone to the share of the appellant No. 1. The Trade Mark "Kangaro" was retained by allotting the said trade mark solely to appellant No. 1. Clause E of Part 1 of the arrangement/settlement recited the said ownership of the Trade Mark of appellant No. 1. To keep the same beyond all possible doubts and controversies a negative covenant was also additionally incorporated in Clause 5 of Part 2 wherein it was stated that respondents 3 and 4 will have no right in the Trade Mark "Kangaro" after 31.3.1996. In conformity to the continuous understanding and agreement the constitution of the partnership firms and companies were changed with effect from 1.1.1995 to ensure that respondents 3, 4, 5 and 6 constitute the partners/directors of the firms and companies going to their share.

9. Appellants 1 to 3 constitute partners/directors in those firms/companies, which had come to the share of the appellants. Disregarding and suppressing the said settlement, respondent No. 3 by his letter dated 23.11.1995 requested respondent No. 1 in Form TM-24 for assignment/transfer of the Trade Marks No. 376224 and No. 463530 in favor of respondents 3, 4, 5 and 6, which exclusively had fallen in the share of appellants. The applicants while filing TM-24 claimed to enclose, as per the trade mark practice, the affidavits of Shri Janak Dass Jain and Smt. Kiran Jain showing that they had relinquished their right to the Trade Marks in favor of the applicants. However, the documents disclose that no such affidavits were ever filed. While this application in Form TM-24 dated 23.11.1995 was pending, on 1.7.1996 yet another application in Form TM-24 was filed for the same purpose, duly signed by respondent No. 3. By the said application, while requesting for the modification of the entries in favor of the appellants, they claimed themselves to be the subsequent proprietor of the Trade Marks. In blatant disregard to the established and usual practice; neither the relinquishment affidavits of appellants No. 2 and 3 were filed nor the family arrangement/settlement dated 10/14-4-1995 was brought to the notice of respondent No. 1. Nowhere it was disclosed that similar TM-24 request was made through letter dated 23.11.1995 and it was pending before respondent No. 1. The other two registered proprietors of the said trade mark, Shri Janki Dass Jain and Smt. Kiran Jain on coming to know of these acts, on 19.8.1996 informed respondent No. 1 that they had not at any stage relinquished the proprietorship of the Trade Marks in favor of respondents 3 to 6. The respondent No. 1 was also informed that a serious dispute about the entitlement of the Trade mark was pending and, therefore, the request made by the respondents ought not to be allowed till appropriate opportunity of hearing is allowed to them.

10. On 25.9.1996 respondent No. 1 directed the lawyers of Shri Janki Dass Jain and Smt. Kiran Jain to furnish within 21 days i.e. by the 16th October, 1996 supporting documents on which reliance was placed, after which no correspondence was to be entertained. The communication was addressed by respondent No. 1 to Shri P.K. Talwar, Advocate, who had not even filed his vakalatnama on behalf of Shri Janki Dass Jain or Smt. Kiran Jain. The letter dated 25.9.1996 was not sent either to Shri Janki Dass Jain or Smt. Kiran Jain. On 18.10.1996 the lawyer of respondents 3 to 6 wrote to respondent No. 1 that as no reply had been received from Shri Janki Dass Jain and Smt. Kiran Jain, the registration needed to be settled in their favor.

11. On 31.10.1996 a fax as also a telegram was also sent by Shri Janki Dass Jain and Smt. Kiran Jain informing respondent No. 1 that they have never relinquished their rights in the registered Trade Marks and, therefore, respondent No. 1 should not allow the request on TM-24 made by the applicants. Respondent No. 1 was further requested to grant personal hearing to Shri Janki Dass Jain and Smt. Kiran Jain wherein they can demonstrate true status in this regard. On 30.10.1996 certificate was also issued by respondent No. 1 as to the fact that they continue to be the registered owners of the trade mark. On 4.11.1996, a detailed affidavit was filed by Shri Janki Dass Jain before respondent No. 1 with which he also produced the agreement/settlement dated 10/14-4-1995 drawn in hand of respondent No. 3. In the light of the said document respondent No. 1 was requested not to register the request of respondent No. 3. On 28.11.1996 detailed explanation was submitted to respondent No. 1, which included the affidavit of appellant No. 1, copy of affidavit of Shri Janki Dass Jain filed on 4.11.1996, photo copy of the agreement dated 10/14-4-1996 drawn in hand of respondent No. 3 and a copy of TM-24 filed by appellant No. 1 was also submitted. A request for personal hearing was additionally made to respondent No. 1. On 3.12.1996 appellant No. 2 requested respondent No. 1 for supply of Photostat copies of all documents filed in support of TM-24. Despite, repeated representations and written requests by appellant No. 2, copies of the documents were not supplied.

12. The appellants perturbed by the inaction of respondents 1 and 2 and foreseeing the danger of losing valuable property rights in trade marks filed on 6.12.1996 a suit for permanent injunction against the respondents before District Judge, Ludhiana. On 6.12.1996 the appellants through their advocate informed respondents 1 and 2 about filing of the suit and requested that in the light of the said development, changes in the ownership of the Trade Marks be not made. The defendants in the said suit produced the "true copy" of the same family settlement dated 10.4.1995/14.4.1995 and placed reliance on it. Some illegal additions were made by the respondents in the said family arrangement to confuse and/or mislead the court. Appellant No. 1 had then to move an application under Section 340 Cr.P.C., which is pending consideration in the said court. In the said proceeding the respondents till 10.1.1997 did not indicate that order assigning the trade marks has already been passed by respondent No. 1 in their favor as early as on 30.10.1996. Neither appellant No. 1 nor Shri Janki Dass Jain and Smt. Kiran Jain had knowledge of the development at respondent No.1's end. The appellants were under bona fide belief, considering the nature of communications they had sent to respondent No. 1, that the entire issue of assignment of trade mark was under consideration and that respondent No. 1 would pass appropriate quasi-judicial order after discharging the principles of natural justice. For the first time when appellant No. 1 visited the office of respondent No. 1 on 23.12.1996 that he came to know that as early as on 30.10.1996 respondent No. 1 had ordered the registration/assignment in favor of the respondents arbitrarily showing them the subsequent proprietors of the trade marks thereby disregarding all judicial precepts and principles. Additional District Judge, Ludhiana on 7.1.1997 directed the parties to maintain status quo in context to the use of trade mark in favor of appellant No. 1.

13. In the aforementioned back drop on 12.2.1997 petition under Section 56 of the Act was filed by the appellants, which was vehemently resisted by the respondents. The respondents filed their replies. The case of the respondents in nutshell has been that respondent No. 1 was justified in having passed the order rectifying the Trade Marks in their favor. The respondents have tried to meet the case of the appellants in this appeal by taking up a stand that the so-called family settlement was not final. The same were only proposals. The rights of the parties are squarely covered and governed by the deeds of dissolution. It was urged that appellants No. 2 and 3, after having retired from the partnership of the firm M/s. Kangaro Industries (Regd.) and having received full considerations in terms of the deeds of retirement dated 31.3.1995 and 15.5.1995 are dishonestly repudiating the respondents title to the trade marks in question. Appellant No. 1 had full knowledge of the fact that he is not entitled to any right, title or interest in the assets of the said partnership firm and the appellants are falsely and fraudulently attempting to set up a case of so-called family settlement under the Hindu Law. The rights of the partners in the trade marks in question being the assets of the partnership firm, from which appellants 2 and 3 retired, could only be determined in accordance with the provisions of partnership law. The said rights were duly determined by the partners under the deeds of retirement dated 31.3.1995 and 15.5.1995. The said deeds of retirement dated 31.3.1995 and 15.5.1995 on the basis of which the respondents' rights, title and interest to the trade marks in question are admitted documents. Appellant No. 2 is not disputing the correctness, validity and authenticity of the retirement deed dated 15.5.1995.

14. It was further urged that the so-called family settlement, on the basis of which a right is now sought to be established on behalf of appellant No. 1, who was not even the partner of the firm M/s. Kangaro Industries (Regd.) were merely proposals at an informal meeting between the brothers in the presence of Shri R.K. Behl, Shri R.K. Jain and Shri Janki Dass Jain. Shri R.K. Jain and Shri R.K. Behl did not enter upon any reference nor made any award. The proposals, therefore, became infructuous and the rights of the parties were determined only under the concluded agreements in the shape of deeds of retirement dated 31.3.1995 and 15.5.1995. In fact Shri Janki Dass Jain himself executed the retirement deed dated 15.5.1995 much after the so-called family arrangement. The appellants also relied upon the said deed of partnership and retirement in support of their case on Form TM-24 concerning the trade mark 468510 and not the so-called family arrangement. The proposals dated 14.4.1995 are not family arrangements/settlement, nor the same are binding on the partners of the firm or the persons, who are not even the signatories to the same. It was urged that these questions are the subject-matter of a civil dispute pending between the parties before the District Judge at Ludhiana. The appellants are guilty of concealing and suppressing the alternative proposal contained in the two additional pages, executed and signed by the same persons on 14.4.1995. As such they are not entitled to invoke equity in their favor. The appellants' conduct in challenging the execution of the said two additional pages itself disentitled them to any relief. Learned Single Judge had rightly declined to interfere with the order passed by the Registrar of Trade Marks. The said two additional pages of the proposals were produced at the first instance of legal proceedings between the parties by the respondents before the District Judge, Ludhiana Along with their written statement on 10.1.1997.

15. It was contended that had there been any substance in the appellants' claim on the basis of the so-called family agreement dated 10/14th April, 1995, appellant No. 2 would not have signed the deed of retirement dated 15.5.1995 whereby all rights in the trade marks in question vested with the respondents. The so-called family arrangement dated 10/14-4-1995 does not even find mention in and is not a part of the deed of retirement dated 15.5.1995. No case whatsoever was set up by the appellants on the basis of the so-called family arrangement either in the deed of retirement dated 15.5.1995 or as late as in 1996 in the objections filed before the Registrar of Trade Marks on 20.8.1996, which was addressed by Shri P.K. Talwar, Advocate under instructions from appellants 2 and 3. It was specifically stated that although appellants 2 and 3 had retired from the partnership of M/s. Kangaro Industries (Regd.), Ludhiana, but in the retirement deed the rights to the registered trade marks were not given to the continuing partners and the matter was kept pending through mutual consent or arbitration. Mr. P.K. Talwar, Advocate further stated that till date the trade mark had not been decided between the appellants and the continuing partners of M/s. Kangaro Industries. The so-called family arrangement/agreement saw the light of the day for the first time only after the order for recording the names of the respondents as subsequent registered proprietors of the trade marks in question had already been passed by the Registrar of Trade Marks on 30.10.1996. The appellants while filing their request in form TM-24 dated 28.2.1996 in respect of the registered trade mark Nos. 486510 of the firm M/s. Jain Manufacturing Company had relied upon the partnership deed dated 1.1.1995, deed of retirement dated 31.3.1995 and the partnership deed dated 1.4.1995, the only documents in support of their title in which Clauses 3 and 4 were the same with the only different that the respondents in this case were the retiring partners as against continuing partners of Kangaro In-dustries (Regd.). The so-called deed of family settlement/arrangement dated 10/14.4.1995 were not at all set up by the appellants, as evidence of their so-called title. Similarly, the Registrar of Trade Marks allowed the request filed in form TM-24 by the appellants in respect of Registered Trade Mark No. 486510 on the basis of the same documents, on the basis of which the request filed by the respondents was allowed. On the appellants' request, the Registrar even did not issue any notice to the respondents. The entries as were ordered to be made by the Registrar of Trade Marks in favor of the appellants and respondents have duly been advertised in the Trade Marks Journal.

16. At this stage, we may also mention a fact that respondents 1 and 2 had put in appearance before learned Single Judge and in response to the notice issued in this appeal affidavit of Mr. T.R. Subramanian, Controller General of Patents, Designs and Trade Marks was filed supported with documents. Affidavit was also filed of Shri Amar Prakash, Assistant Registrar Trade Marks, Trade Marks Registry, Mumbai. In the two affidavits, respondents 1 and 2 have tried to place before the Court the factual aspects, which were seriously in dispute amongst appellants and respondents 3 to 6 as regards the manner in which the application for registration of their title was filed by respondents 3 to 6, the manner in which the same were dealt with in the office of Trade Marks Registry, which ultimately culminated in the order, which is under challenge in the petition, which is pending consideration before learned Single Judge.

17. In Nutshell respondents 1 and 2 have stated that on 23.11.1995 respondents 1 and 2 received a request on behalf of respondents 3 to 6 for registration of their title with respect to Trade Marks 376224 and 463530. The said TM-24 was filed on the basis of dissolution deed dated 31.3.1995 and the partnership deed dated 1.4.1995. By virtue of the said retirement deed, Smt. Kiran Jain wife of Shri Jaininder Jain, appellant No. 3, retired from the partnership firm and new partnership was entered on 1.4.1995. Another partnership deed filed along with the said TM-24 was dated 16.5.1995 wherein it was stated that Shri Janki Dass Jain, appellant No. 2 had also retired from the partnership business w.e.f. 15.5.1995. The new partnership deed thus entered on 16.5.1995 was between respondents No. 3 to 6. On 28.2.1996, respondents No. 1 and 2 received a similar request in TM-24 in respect to another Trade Mark No. 486510 from the appellants seeking registration of their title in respect of the said trade mark. The said request was again based on the partnership deed dated 1.1.1995, retirement deed dated 1.6.1992. Retirement deed dated 31.3.1995 and the partnership deed dated 1.4.1995. Respondents 1 and 2 received fresh request in TM-24 from respondents 3 to 6 in respect of the four Trade Marks i.e. 376224, 384556, 463530 and 486516. The request was again made on the basis of the partnership deed dated 31.3.1995, partnership deed dated 1.4.1995, retirement deed dated 15.5.1995, partnership deed dated 16.5.1995 and Form-A issued by Registrar of Firms. On 20.8.1996, respondents 1 and 2 received a letter from Shri P.K. Talwar, Advocate on behalf of Janki Dass Jain and Kiran Jain, appellants 2 and 3 stating that the trade mark matter has not been decided between the retiring and the continuing partners of M/s Kan-garo Industries and, as such, any request for change in constitution may not be allowed till his clients are heard in the matter. On 3.9.1996 respondent No. 1 received a letter dated 2.9.1996 from Shri K.N, Naik, Advocate of respondents 3 to 6 wherein he had filed affidavit of Shri Arihant Jain stating that the retiring partners have relinquished their rights after receiving their shares from the partnership business. The said affidavit was supported by copy of ledger accounts of the retiring partners certified by the Chartered Accountant, certificate from the bank confirming payments made to the retiring partners and requested that the request on TM-24 and TM-34 be allowed and the change may be registered accordingly.

18. On 25.9.1996 respondent No. 1 in reply to the letter of Shri P.K. Talwar requested him (P.K. Talwar) to furnish the supportive documents within 21 days from the date of the said letter. A copy of the said letter was also sent to Shri K.N. Naik, Advocate for respondents 3 to 6. On 18.10.1996, respondent No. 1 received a letter from Shri K.N. Naik, Advocate on behalf of respondents 3 to 6 in response to the Registrar's letter dated 25.9.1996 requesting the Registrar to take necessary action on Form-2,4, in case no reply is received from the appellant by the Registry and in the absence of any proof furnished by the said appellants. Since no reply was received either from the appellants or their counsel, inspite of lapse of 21 days, the Registrar on 30.10.1996 decided the case of TM-24 in respect of the 4 trade marks in favor of respondents 3 to 6. On 1.11.1996, respondent No. 1 received a telegram from Shri P.K. Talwar, Advocate acknowledging letter dated 20.9.1996 of the Registrar requesting that the request on TM-24 of respondents 3 to 6 be hot allowed. Vide letter dated 7.11.1996, respondent No. 1 requested Shri P.K. Talwar, Advocate to file the power of attorney executed in his favor Along with all relevant proof in support of their claim within 30 days from the date of the said order. During the end of November, 1996, the respondents received a letter dated 28.11.1996 whereby Shri P.K. Talwar had enclosed a power of attorney in his favor oh behalf of Smt. Kiran Jain, Shri Janki Dass Jain and affidavit of Shri Janki Dass Jain and Shri Jaininder Jain. For the first time in the said letter a request was made on TM-24 by Shri Jaininder Jain for registration of the said trade marks in his favor ratifying and confirming all acts already done by Shri P.K. Talwar on behalf of Smt. Kiran Jain and Shri Janki Dass Jain respectively. No power of attorney was filed by Shri. P.K. Talwar on behalf of Shri Jaininder Jain, though a claim for registration was lodged with the Registrar. Thereafter respondent No. 1 received a letter dated 4.11.1996 from Shri Janki Dass Jain giving a brief history of the family and stating that by virtue of an agreement dated 10/14-4-1995, the rights to the trade mark "Kangaro". were given to Jaininder Jain and the goodwill of the firm. M/s. Kangaro Industries went to other two sons, namely, Arihant Jain and Viswa Jain.

19. Pursuant to the letter dated 4.11.1996 respondent No. 1 on 18.12.1996 requested Mr. K.N. Naik, Advocate on behalf of respondents 3 to 6 to given comments to the affidavit of Shri Janki Dass Jain based on the arbitration agreement dated 10.4.1995 within 30 days of the receipt of the said letter. Copy of the said letter was marked to the opposite parties and their counsel. During the second week of January, 1977, respondent No. 1 received a reply dated 8.1.1997 to its letter dated 18.12.1996 from the Advocate for respondents 3 to 6. Thereafter, respondent No. 1 was informed that a Suit has been filed on 6.12.1996 in the Court of District Judge, Lud-hiana by the appellants for grant of a decree of permanent injunction against respondents 3 to 6 from getting the trade mark "Kangaro" transferred in their favor. Respondents No. 1 and 2 were also made parties in the said suit and were summoned by the said court at Ludhiana. On 7.1.1997 the Ludhiana Court had passed a status quo order regarding the use of the registered trade mark. A reply on behalf of the respondents was also received by respondent No. 1 from the appellant's counsel by his letter dated 16.1.1997 wherein it was also pointed out that a civil suit had been filed by the appellant in this regard at Ludhiana. Respondent No. 1 was also informed that the appellant had filed a petition under Section 56 of the Act in this Court against respondents 3 to 6 as well as respondents 1 and 2. In view of the proceedings initiated by the appellants before the Ludhiana Court as well as this Court, respondent No. 1 vide its letter dated 20.2.1997 informed the appellants as well as their counsel that no action can be taken on their request on Form TM-24 in respect of the registered Trade Mark No. 376224 and others.

20. It is further stated in the affidavit that the Registrar has passed the order dated 30.10.1996 in favor of respondents 3 to 6 under Section 44 of the Act on the basis of documents in support of TM-24, which were before him, after giving due notice and ample opportunities to appellants 2 and 3 through their counsel Shri P.K. Talwar, to support their claims. Otherwise also, no prejudice is being caused to the appellants as similar orders have been passed by the Registrar in respect to the request made by them on TM-24 with regard to other trade marks, on the basis of the same set of documents. The Registrar had relied upon the admitted documents while passing the said order and, as such, the allegations made against him of collusion are baseless and frivolous. Another allegation made against the Registrar is that the order has been passed behind the back of the appellants. The said allegation is also baseless and is not sustainable as the order was passed on 30.10.1996 and the entry was made by the Dealing Assistant subsequently on 1.11.1996. In other words, once the order is passed, the changes in the records are always made subsequently and cannot be reflected immediately on the file from where certain copies are issued to the parties. Therefore, the reliance of the appellants oh the certified copies obtained by them on 30.10.1996 with respect to the trade marks in questions, which does not bring out the changes pursuant to the order dated 30.10.1996 is not correct and is totally misleading.

21. We have reproduced in detail the respective stand of the appellants and respondents 3 to 6 and the one taken on behalf of respondents 1 and 2. It can be noticed that claim, which is subject matter of the petition filed in this Court under Section 56 of the Act by the appellants on one hand is that the Trade Mark Registry proceeded to pass the impugned and in utter haste ignoring the settled practice and fair opportunity to the appellants was not afforded and respondents 3 to 6 obtained the Trade Marks by misrepresenting and concealment of material facts. These claims of the appellants are seriously in dispute on behalf of respondents 3 to 6 and also by respondents 1 and 2. The appellants claimed that the rights of the parties are governed by the family settlement, which was not produced before the Registrar, whereas the case of respondents 3 to 6 is that it was not a family settlement but were only proposals, which never culminated and attained finality. Arguments were addressed on behalf of the parties as regards the evidentiary value and binding character of a family settlement and also the effect of the registration of Trade Mark. But we need not go into these questions at this stage while deciding this appeal, which has arisen against an order passed by learned Single Judge on a interim application. Rights of the parties will have to be decided primarily as regards the family settlement, whether it is final and conclusive or whether it was only a proposal in a pending civil proceedings between the parties at Ludhiana Courts. The scope in this appeal before us is only to examine the legality and validity of the impugned order passed by learned Single Judge that whether the learned Single Judge was justified in not staying the operation of the order of the Trade Mark Registry dated 30.10.1996. Learned Single Judge in his brief order, after hearing lengthy arguments, had given a gist of the respective case set up by the parties and observed that he was not able to accept the appellants case that they had no knowledge of the proceedings, which culminated in the impugned order dated 30.10.1996. He also noticed the plea set up on behalf of the appellants that Mr. Talwar was counsel only for appellants 2 and 3 and was not counsel for appellants No. 1 and that appellant No. 2 was using the trade mark since 1959, therefore, knowledge of the proceedings could not be imputed to appellant No. 1. It was observed by him that Mr. Talwar continued to appear in the proceedings on behalf of the appellants, the so-called family arrangement projected by the appellants was in dispute before a Civil Court at Ludhiana. The Registrar had given notice to Mr. Talwar and it was only thereafter that the order was passed by the Registrar. Considering these aspects, learned Single Judge concluded that it was not a fit case where operation of the impugned order passed by the Registrar on 30.10.1996 could be stayed since the Registrar prima facie had afforded due opportunity to the appellants.

22. The scope in hearing of an appeal against an interlocutory order of Single Judge of the High Court by a Division Bench of the same Court is very limited. Division Bench exercising appellate jurisdiction will not interfere with the exercise of discretion of learned Single Judge and thereby substitute its own discretion except where the discretion is shown to have been exercised arbitrarily or capriciously or perversely or it is shown that the learned Single Judge had ignored the settled principles of law regulating the grant or refusal of interlocutory injunctions. An appeal against exercise of discretion usually is said to be an appeal on principle. Appellate Court is not expected to re-assess the material and seek to reach a conclusion different from the one reached by the Court, whose order is under challenge, solely on the ground that if it had considered the matter at the trial stage, it would have come to a contrary conclusion. Generally, it is said that if the discretion has been exercised reasonably and in a judicial manner by the Court, whose order is under challenge, the fact that the Appellate Court would have taken a different view, may not justify interference with the original Court exercising discretion. These principles were reaffirmed by the Supreme Court in Wander Ltd. and another v. Antox India P. Ltd., 1990 (Supp) SCC 727 wherein it was held:-

"The appeals before the Division Bench were against the exercise of discretion by the Single Judge. In such appeals, the appellate court will not interfere with the exercise of discretion of the court of first instance and substitute its own discretion except where the discretion has been shown to have been exercised arbitrarily, or capriciously or perversely or where the court had ignored the settled principles of law regulating grant or refusal of interlocutory injunctions. An appeal against exercise of discretion is said to be an appeal on principle. Appellate court will not reassess the material and seek to reach a conclusion different from the one reached by the court below if the one reached by that court was reasonably possible on the material. The appellate court would normally not be justified in interfering with the exercise of discretion under appeal solely on the ground that if it had considered the matter at the trial stage it would have come to a contrary conclusion. If the discretion has been exercised by the trial court reasonably and in a judicial manner the fact that the appellate court would have taken a different view may not justify interference with the trial Court's exercise of discretion. After referring to these principles Gajendragadkar, J. in Printers (Mysore) Private Ltd. v. Pothan Joseph, (SCR 721).

". . . These principles are well established, but as has been observed by Viscount Simon in Charles Osenton & Co. v. Jhanation '... the law as to the reversal by a court of appeal of an order made by a Judge below in the exercise of his discretion is well established, and any difficulty that arises is due only to the application of well settled principles in an individual case'."

23. It is not in dispute that insofar as the legality and validity of the document, which is the foundation of the appellants' claims, is the family settlement. The same is already a subject matter of civil suit between the parties, which is pending adjudication in a competent court, which will have to decide the same in accordance with law. Only on filing of this appeal and on assurance given by the respondents, pending disposal of this appeal they are not proceeding with the said suit, which was got postponed. On the view, which we have taken that the learned Single Judge was perfectly justified in exercising discretion, we are not inclined to interfere in this appeal. Parties will be at liberty to have adjudicated their rights in civil proceedings. We have taken into consideration the stand taken by respondents 1 and 2 and do find from the record that it is not such a case where fair opportunity was not allowed to the appellants or that the appellants had no knowledge of the proceedings. The points, which were raised before us on behalf of the appellants about legality and validity of the so-called family settlement, which are seriously disputed by respondents 3 to 6, cannot be decided by us in this appeal, which will have to be adjudicated and decided in civil proceedings, which are already pending.

24. Consequently, the appeal is dismissed with no order as to costs. All miscellaneous applications stand disposed of.