- (1.) The petitioner Guest Keen Williams Ltd., carry on business in manufacture and sale of divers equipments and products, connected with the operation of the railways in India and abroad. According to the petitioner, sometime before 1976 the petitioner invented a rail clip adapter for the purpose of fitting in the railway track assembly. On the 8th June, 1976 the petitioner applied for grant of a patent in favour of the petitioner in regard to the said adapter, being application for patent No. 145211 and along with the said application filed a complete specification of the said adapter. Thereafter the respondent No. 4, that is the Research, Designs and Standards Organisation of the Ministry of Railways, filed an opposition to the said application on 31st Jan., 1979 inter alia on the ground of prior public knowledge and prior public use in India of the petitioner's invention as claimed. The said opposition was filed in accordance with Rules 35 and 36 of the Patents Rules, 1972. The petitioner on 30th July, 1979 filed a reply statement in accordance with R.37 of the said Rules. Thereafter on 26th Sept., 1979 the Research, Designs and Standards Organisation (hereinafter referred to as RDSO) filed an affidavit through one Om Prakash as evidence in support of their opposition in accordance with R.38 of the Rules. The petitioner also filed an affidavit on 24th April, 1980 in support of his application through one B. K. Jagannath in accordance with R.39 of the said Rules. According to the petitioner, the affidavit filed on behalf of RDSO through one Mr. Pal was inadmissible in evidence in view of the specific provisions of R.40 and R.41 of the said Rules as it was not strictly confined to the matters which have been referred to in the petitioner's affidavit. Under the circumstances the petitioner contended that as for such further evidence no leave was taken by the respondent, especially by the RDSO, such evidence was not admissible. The affidavit on behalf of RDSO was filed on 28th Aug., 1980 and thereafter the matter was fixed for hearing on several dates and were adjourned at the request of the petitioner. Thereafter the hearing took place on 10th Aug., 1983. At the time of hearing of the said application before the Deputy Controller of Patents and Designs and after the RDSO closed its case, it was submitted on behalf of the petitioner that the affidavit of Himangshu Bhusan Pal be taken off the file and leave be granted to the petitioner to file the affidavit of one Suraj Mohan Khorana affirmed on 2nd July, 1983. The petitioner sought for further leave to cross-examine the said Himangshu Bhusan Pal. The Deputy Controller of Patents and Designs rejected the aforesaid contentions of the petitioner and fixed the next date of hearing on the 6th September, 1983. The petitioner filed a formal interlocutory application before the respondent Deputy Controller of Patents and Designs reiterating the prayers made by him on 10th August, 1983 praying for leave to file an affidavit of the said Suraj Mohan Khorana, prayed for rejection of the affidavit filed by Himangshu Bhusan Pal on behalf of RDSO and last of all prayed for leave being granted to the petitioner to cross-examine the said Himangshu Bhusan Pal. Thereafter on the second day of the hearing the Deputy Controller of Patents and Designs rejected the prayers made by the petitioner on 6th Sept., 1983. According to the petitioner no formal order was passed by the respondent but the decision of the respondent was communicated to the petitioner in writing. Thereafter on 15th September, 1983 the petitioner moved an application before this High Court under Art.226 of the Constitution challenging the said order passed by the respondent. By an order passed by Borooah J. on 4th October, 1983 the respondent Deputy Controller of Patents and Designs was directed to give detailed reasons of the said order passed by him on 6th Sept., 1983. Thereafter the respondent on 30th Nov., 1983 passed an order giving reasons in support of his order passed on 6th Sept., 1983. Thereafter the present application had been taken out and a Rule Nisi was issued by Borooah, J. on the petitioner's present application.
(2.) Mr. Sudipta Sarkar the learned lawyer appeared in support of the petition and carved reference to the various rules including R.36 to R.41 and also to Rr.77 and 79 and submitted that in view of the Rules framed, the affidavit affirmed on behalf of the RDSO was not in conformity with the provisions of the said Rule inasmuch as new matters had been introduced and new evidence has been adduced in the affidavit which were not strictly in conformity with the Rules inasmuch as they were not confined to the evidence that had already been adduced on behalf of the claimant in the affidavit. Under the circumstances, according to Mr. Sarkar, the Deputy Controller of Patents and Designs went wrong in allowing that affidavit to be used on behalf of the opponents. Secondly, Mr. Sarkar submitted that the reasons given by the Deputy Controller of Patents and Designs, which would be evident from the Annex. 'J' to the petition, would indicate that apart from harping on the point that various adjournments had been obtained on behalf of the petitioner and in view of the fact that this objection had not been taken when the affidavit was filed on behalf of the respondents, the Deputy Controller of Patents and Designs had not given any reason whatsoever save and except stating that such objection had not been raised by the petitioner at the time when the affidavit was filed on behalf of the opponents.
(3.) This application was opposed to by Mr. Mukharjee on behalf of the Deputy Controller of Patents and Designs. According to Mr. Mukharjee this grant of the patent had been opposed to on behalf of the respondent on two grounds of prior use and also of prior public knowledge and under the circumstances the grant of the patent had been opposed to inasmuch as it has been claimed by the respondent that the railway clip adapter, which had been claimed to be invented by the petitioner, had been in use long prior to the application made by the petitioner for grant of patent in respect thereof. Moreover, Mr. Mukharjee submitted that the affidavit-in-opposition had been filed by the respondent in Aug., 1980 whereas the hearing took place on the 10th Aug., 1983 and during this long 3 years the petitioner had not taken any objection as to the use and filing of the said affidavit. It was only after the hearing and submissions had been made and concluded on behalf of the respondent that for the first time the petitioner had taken this objection with an ulterior motive, as a last resort. Moreover, Mr. Mukharjee on behalf of the respondent 1 further submitted that in view of the provisions contained in S.79 of the Patents Act, 1970 ample discretion had been given to the Controller under the said section whereunder the said discretion had been exercised by the Controller in the instant case.;