PRABHA SRIDEVAN - (1.) THIS petition is for review of the Order No. 148 of 2011 passed by us on 24/08/2011 where we dismissed the matter for default on the ground of non -appearance. The learned counsel for the petitioner submitted that there is evidence to show that the petitioner herein had sent his request for adjournment on the ground that the month being the Holy month of Ramzan, the petitioner could not move from Varanasi to Kolkata. He has also enclosed the paper book to show that this request was sent by courier to the IPAB Registry about seven days before the date of hearing. The rule requires that the request of adjournment is to be sent fifteen days before the date of hearing. The party to the matter Mr. Iftikhar Alam is present before us today. We could see that even to meet out the expense of coming from Varanasi to Kolkata may be difficult for him. Therefore we thought, we might take a lenient view considering this. Ultimately when there is a lapse on the part of one side who moves the court for some relief, we must see whether the restoration of the original position will cause hardship to the other side. In this case, the order of the Controller is of the year 2010. The dismissal by us was in 2011. We went through the impugned order. We thought that if there was even some little merit in the matter, we would restore the petition which was at the S.R. stage when it was dismissed for default.
(2.) THE petitioner claims to be the assignee of the mark. The assignor is one Ms. Ishrat Jahan. The Assignment Deed produced before us (Xerox copy) is dated 26/05/2007. Therefore, on that date Ms. Ishrat Jahan had allegedly parted with her rights over the mark and yet, the affidavit of evidence filed in 2008 was by the same person and the affidavit also says that she is the proprietor of Musa Tobacco Gul Products and she is filing the affidavit on behalf of the firm. We do not see how the assignor can file the evidence relating to the mark after parting with her rights. The affidavit also shows that the proof of sales is furnished only from 1993 and it is not possible to give figures prior to that. In the impugned order, the Assistant Registrar had come to the conclusion that there is no document to show how Ms. Ishrat Jahan can use the mark in her name and that there is nothing to show why the impugned mark should be registered. When the person who is now the proprietor of the mark allegedly has not chosen to file any evidence, the Assistant Registrar cannot be faulted for dismissing the rectification application.
(3.) IN these circumstances, even though the petitioner has shown that he has made a request for adjournment though belatedly, since no purpose will be served by allowing this review petition and it will unnecessarily prolong the matter, in the interest of justice and in view of the reasons mentioned above, the review petition is rejected.;