S.USHA - (1.) IN all, there are four Miscellaneous Petitions as summarized below: - (i) Miscellaneous Petition No. 225/2009: Miscellaneous Petition filed by the appellant to allow this petition and refusing the respondent from frivolous documentary evidence for taking on record. (ii) Miscellaneous Petition No. 226/2009: Miscellaneous Petition filed by the appellants to set aside the impugned order dated 28/06/2001 and remanding back the matter to the Trade Marks Registry and to allow both the appellant and the respondent to file their evidence and thereafter to decide the opposition proceedings. (iii) Miscellaneous Petition No. 39/2012: This Miscellaneous Petition filed by the appellant to reject the evidence filed by the respondent on 18/10/2011 - 326 documents and to dispose the appeal by remanding back the matter to the Trade Marks Registry. (iv) Miscellaneous Petition No. 77/2012: Miscellaneous Petition filed by the respondent to take on record the documents under section 63 of the Indian Evidence Act.
(2.) THE fact of the case is as under: - The matter is an appeal against the order of the Registrar rejecting the application for registration and allowing the opposition. In the appeal, the documents relied on by the respondent were not before us. The appellants counsel objected to the respondents filing those documents now for the reason that there were documents more in number than that were filed before the Registrar.
(3.) THE evidence filed along with the counter statement / affidavit in support of opposition were not filed by the respondent along with the counter statement in the appeal stage. The Board had therefore requested the Trade Marks Registry several times to send the lower court records. The Trade Marks Registry replied back stating that the documents were not traceable and would send the same as and when it is traced. The matter was therefore adjourned for want of documents. Subsequently, there was direction that the respondents file the documents along with the originals for hearing the matter. The respondents were also directed to file certified copies as they were taken from the District Court, when a civil suit was filed and pending. Findings: Miscellaneous Petition No. 225/2009: This Miscellaneous Petition has been filed by the appellant after a direction was given to the respondent to file the documents as the lower court records (Trade Marks Registry files) were not received as it was not traceable. Now that the appellant has filed another Miscellaneous Petition No. 39/2012 praying that the documents filed (as per directions) may not be taken on record, we are of the view that in the Miscellaneous Petition No. 225/2009 nothing survives and ought to be dismissed. The Miscellaneous Petition 225/2009 is, therefore, dismissed. Miscellaneous Petition No. 226/2009: This Miscellaneous Petition has been filed by the appellant with a prayer to set aside the impugned order and remand back the matter to the Registrar to dispose the matter after affording an opportunity to both the appellant and respondent to let in evidence.;