M.S.SHAH - (1.)This petition under Art. 226 of the Constitution is filed by Torrent Pharmaceuticals Limited praying for a writ of mandamus or any other appropriate writ directing the Union of India through the Registrar of Trade Marks and the Assistant Registrar of Trade Marks at Ahmedabad (hereinafter referred to as 'the Assistant Registrar') to treat the evidence filed by respondent No. 3 the Wellcome Foundation Ltd., by way of two affidavits in the opposition proceedings to the petitioner's application for registration of trade mark as taken off from the record and to treat the opposition proceedings bearing No. AMD-916 as abandoned under Rule 53(2) of the Trade and Merchandise Marks Rules, 1959 (hereinafter referred to as 'the Rules'). The petitioner has also prayed for quashing and setting aside the order dated 30-9-1997 passed by the Assistant Registrar disposing of the interlocutory petition filed by respondent No. 3 herein taking the affidavits and the documents filed by respondent No. 3 on record as further evidence in support of the opposition proceedings. With consent of the learned Counsel for the parties the petition was taken up for final disposal.
(2.)The facts leading to filing of the present petition, as averred by the petitioner, are as under : The petitioner is engaged in the business of manufacturing and marketing Pharmaceutical and Medicinal preparations for over two decades. The petitioner made application for registration of its Trade Mark VIREX on 27-1-1987 in Class 5 in respect of Medicinal and Pharmaceutical Preparations. In the Trade Journal dated 1-1-1995 the petitioner's application for registration of aforesaid trade mark was advertised before acceptance. On 6-4-1995 respondent No. 3 filed its notice of Opposition to the registration of the trade mark applied for by the petitioner, as provided for in Rule 51 of the rules. On 10-10-1995 the petitioner filed counterstatement under Rule 52 of the Rules and a copy of the same was served by the Assistant Registrar on the Trade Marks Attorney of respondent No. 3. The copy of the counter-statement was sent by the Assistant Registrar alongwith letter dated 13-11-1995 but it was received by respondent No. 3 on 22-11-1995. Respondent No. 3 thereafter filed an application on 15-1-1996 for three months' extension to adduce their evidence in support of their opposition as contemplated by Rule 53 of the Rules. The application was granted by the Assistant Registrar and the time for adducing evidence was extended upto 13-4-1996 as per communication dated January 18, 1996 of the Assistant Registrar. Again extension was sought for by respondent No. 3 on 16-4-1996, which was granted on June 4, 1996 and respondent No. 3 was granted time to adduce evidence upto 13-7-1996. Respondent No. 3 again applied for extension of time on 5-7-1996 mentioning therein the grounds for praying for extension. The time was sought upto 12-9-1996 to adduce evidence. In the meantime, on 13-7-1996 the Advocate of opponent No. 3 forwarded an affidavit of Mr. Kasim Master, Constituted Attorney of respondent No. 3 to the Asstt. Registrar alongwith letter stating that the affidavit of Mr. Kasim Master was tendered as part evidence in support of opposition and that further evidence in support of opposition will also be filed shortly. The said affidavit was received by the Registry and by letter dated 21-8-1996 the Assistant Registrar invited the attention of the petitioner's Attornery to Rule 54 requiring the petitioner to adduce evidence in support of the petitioner's application for registration. Again on 18-9-1996 the Attorney of respondent No. 3 filed application for extension for two month's time to adduce evidence in support of their opposition as further time was required for collecting evidence of bills, invoices, literature of ZOVIRAX - a life-saving drug and to collect worldwide sales figures with documentary evidence. It appears that no action or decision was taken by the Assistant Registrar on the said extension application. Thereafter, on 9-10-1996 affidavit of Ms. Lesley Jane Edwards, Trade Marks Manager of respondent No. 3 alongwith several exhibits was filed with the Assistant Registrar on 2-10-1996. A copy of the said affidavit was also served on the petitioner's Attorney. On 23-10-1996 interlocutory petition was filed by respondent No. 3 for taking on file the affidavit of Ms. Lesley Edwards and to condone delay in adducing the evidence in support of the opposition lodged by respondent No. 3 to the petitioner's application for registration of VIREX trade mark. After the interlocutory petition was served upon the petitioner's Attorney, written comments dated 17-12-1996 came to be filed by the petitioner's Attorney to oppose the interlocutory petition filed by respondent No. 3. The aforesaid interlocutory petition came to be heard by the Assistant Registrar on 22-9-1997. By order dated 30-9-1997 the Assistant Registrar allowed the above interlocutory petition observing that it is a cardinal principle of justice that the evidence filed by the contesting parties though filed late should not be shut out at any stage during the course of proceedings of the case. The Assistant Registrar ordered to take affidavit of Ms. Lesley Edwards and the documents filed therewith on record as further evidence under Rule 53 of the Rules in support of the opposition and further directed respondent No. 3 herein to pay a sum of Rs. 500/ - (five hundred only) as costs to the petitioner herein (respondent in the interlocutory petition). By the said order the Assistant Registrar also required the petitioner herein to file their evidence under Rule 54 in support of their application within two months from the date of receipt of the said order by the petitioner. The petitioner thereupon filed the present petition on 8-12-1997 praying for the aforesaid reliefs.
(3.)At the hearing of this petition Mr. R. R. Shah, learned Counsel for the petitioner raised the following contentions : (i) Since the petitioner's counter-statement under Rule 52 was filed on 10-10- 1995 and the same was sent by the Assistant Registrar of Trade Marks, Ahmedabad to respondent No. 3 on 13-11-1995, respondent No. 3 was required to adduce evidence in support of their opposition within two months, i.e., by 13-1-1996, but that was not done and the Registry of trade marks had received the application of opponent No. 3 for extension of time only on 15-1-1996. Hence, the Assistant Registrar had no jurisdiction to grant the application for extension after expiry of period of two months stipulated in Rule 53 of the Rules. (ii) In any view of the matter, once the Assistant Registrar took on record the affidavit of Mr. Kasim Master on behalf of respondent No. 3 under Rule 53 and by letter dated 21-8-1996 the Registrar invited the attention of the petitioner's Attorney to Rule 54 of the Rules for leading petitioner's evidence in support of their application for registration, thereafter the Assistant Registrar has no jurisdiction to entertain any further application of opponent No. 3 for extension. Once the Assistant Registrar issued notice under Rule 54 of the Rules the stage of adducing evidence of respondent No. 3 was closed and it was not open to respondent No. 3 to adduce evidence thereafter nor was it open to the Assistant Registrar to accept any evidence. If the opponent in Trade Mark proceedings does not adduce evidence in support of his opposition within the time-limit granted by the Assistant Registrar he shall be deemed to have abandoned his opposition and, therefore, the Assistant Registrar should have held that respondent No. 3 had abandoned its opposition. Strong reliance is placed upon the provisions of Rule 53. The learned Counsel for the petitioner has also heavily relied on the decision of the Delhi High Court in the case of Hindustan Embroidery Mills PRIVATE LIMITED v. Hemla Embroidery Mills PRIVATE LIMITED , 1978 (3) IPLR 148 and also an another decision of the Delhi High Court in the case of M/s. V.I.P. Industries Ltd., Bombay v. The Registrar of Trade Marks, New Delhi , 1995 0 PTC 86.