1. This will dispose of two requests on Form TM-57 filed by Mr. H.P.Singh, Advocate on behalf of Applicants for Rectification (hereinafter referred to as the (Petitioners) requesting to review a common order passed by the Assistant Registrar of Trade Marks signed at Ahmedabad on 12.1.2005 and sealed at Chennai on 31.1.2005 in the above matter; 2. The grounds for review as stated by the petitioners briefly, inter alia, are as follows: That the applicants for rectification came to know about the passing of the order only on 9th March, 2005 when the applicants for rectification Counsel came to possess the book PTC Volume II dated 20th February, 2005 received on 9th March, 2005 where the order of the Assistant Registrar of Trade Marks is published at page 188 and that the applicants for rectification or the attorneys did not receive the hearing notice and the order passed is against the interest of justice and further prayed to review the order giving the applicants for rectification an opportunity to be heard in the matter.
3. A copy of review petition was forwarded to Registered Proprietor for their comments. The Registered Proprietor filed their comments and submitted that the prayers of applicant for rectification are baseless and requested that the review petition be dismissed with costs.
4. The matter came up for final hearing on 1st March, 2006 to decide the two review petitions, when Mr. H.W. Kane, Advocate, authorised by M/s Anand & Anand appeared for the Registered Proprietors and Mr. H.P.Singh, Advocate appeared on behalf of the applicants for rectification (Petitioners).
5. The learned Counsel for applicants for rectification reiterated the points made by him in the review petition and requested the Tribunal that he did not receive hearing notice and the Order passed by Assistant Registrar which was proceeded ex-parte should be recalled as the applicants for rectification were not given an opportunity to be heard in the matter.
6. The learned Counsel for registered Proprietors also reiterated the points made by him in their comments to review petition and he relied on the following case laws for consideration of this Tribunal:Smt. Meera Bhanja v. Smt. Nirmala Kumari Chowdhury (2) Bhatia and Co., New Delhi v. Mehra Sales & Service, Delhi 1982 (2) PTC 385 (3) Union Match Co., Kovilpatti v. Winco Ltd., Bombay, Delhi (1985) (5) PTC 141 (4) R.K. Steel Industries, Amritsar v. Naresh Brothers Delhi (1986) (6) PTC 332.
Coming to the review petition, the Trade Marks Act and rules framed thereunder do not state the cases when the Registrar's decision may be reviewed. Generally, as a matter of practice, as a matter of review, the principles embodied in Order 47, Rule (1) of the Code of Civil Procedure are applied to review application under Section 127(c) of Trade Marks Act, 1999. Under Order 47, Rule (1) of the Code of Civil Procedure, a review application would arise only on the basis of one or more of the following grounds: (1) Where there is a discovery of new and important matter or evidence; (2) Where there is a mistake or error apparent on the face of the record; or There is no dispute that the application for review does not come within the scope of first two grounds mentioned above. Therefore, the case has to be considered under ground No. 3 namely "for any other sufficient reason.
7. In this case, the main contention of the Petitioner is that the applicants for rectification or their attorneys did not receive the hearing notice and the order passed by the Assistant Registrar of Trade Marks proceeding ex parte is against the interest of justice and he requested to recall and review the order giving the Petitioner an opportunity to be heard.
8. One of the broad Principles of natural justice is that there should be "Notice and hearing". This principle requires, that a person must have a reasonable opportunity of being heard in his defence, or to meet the case against him State of Madhya Pradesh v. Chintaman, Sadashiva Waishampayan AIR 1961 SC 1623. This requirement has two elements (i) opportunity to be heard must be given, (ii) such opportunity must be reasonable. What is "reasonable" will depend upon the circumstances of each case Fedco Pvt. Ltd. v. Bilgrami, S.N.9. It would be seen from the records of these proceeding that a main was hearing fixed on 10th March, 2004 in the matter of Rectification Nos. MAS-327 and MAS-328 and hearing notices were communicated to the parties by Courier vide this office letter Nos. TOP/40568 & 40569 dated 5/2/2004 and TOP 40566 & 40567 dated 5.2.2004. The hearing notices addressed to applicants for rectification were returned by Courier service with remarks "Shifted". While the other side appeared for the hearing and an ex parte common Order was issued by Assistant Registrar of Trade Marks signed at Ahmedabad on 12.1.2005 and sealed at Chennai on 31.1.2005.
10. Now, the applicants for rectification, the Petitioners herein, have prayed the Tribunal that the Petitioner should be given an opportunity to be heard as he did not receive the hearing notice.
11. The returned hearing notices addressed to Attorneys for Applicants for Rectification placed in the two files clearly shows that the Petitioner has not received hearing notices in respect of these proceedings and now the Petitioner has filed this review after seeing the order published at page 188 in PTC Volume II dt. 20th February, 2005.
12. I have considered the two review petitions carefully and I come to the conclusion, applying the Principles of audi altem partem, this is a case where applicants for rectification should be given an opportunity of being heard and this is a fit case where Registrar should consider that there is sufficient ground for reviewing the ex parte common order signed on 12.1.2005 and sealed on 31.1.2005 passed by Assistant Registrar of Trade Marks. In these circumstances, I allow both the review petitions and review the aforesaid order passed by Assistant Registrar of Trade Marks with the direction to fix the matter in respect of Rectification No. Mas-327 to Registered Trade Mark No.160442 in Class-9 and Rectification No. MAS-328 to Registered Trade Mark No. 160443 in Class-11 for main hearing.
13. It is hereby further ordered that there shall be no order as to costs.
14. Signed and sealed at the Trade Marks Registry, Branch Chennai, this the 1st Day of December, 2006.