Judgment:
ORDER
Abdul Hadi, J.
1. These two appeals are under Section 109(2) of the Trade and Merchandise Marks Act, 1958, (hereinafter referred to as 'the Act'). The point involved in both the appeals is the same, in T.M.A. No. 7 of 1993 the appellant is one Nalli Sambasivam and in T.M.A. No. 8 of 1993 the appellant is one Nalli Duraisamy Saroja. There was Application No. 472754 for registration of a particular trade mark and it was advertised in the Trade Marks Journal on 16.7.1992. Each of the appellants filed notice of opposition on 23.11.1992. As per Section 21 of the Act, three months' time is granted 'from the date of the advertisement...of an application for registration for filing notice of opposition. No doubt, as per the very same Section, apart from the said three months, a further period not exceeding one month may also be granted by the Registrar under the Act on the application made to him in the prescribed manner. Since notice of opposition in the present case was filed only on 23.11.1992 and since according to the authority below, the abovesaid 4 months period expired on 16.11.1992 itself by order dated 30.6.1993 in the respective unnumbered interlocutory applications dated 28.4.1993 filed by each of the appellants, the notice of opposition in each of the two cases was held to be out of time and so the said applications were rejected. In each the said interlocutory applications dated 28.4.1993, it is prayed. 'Notice of opposition which is already lying with the Registrar of Trade Marks, Madras be taken on records and be proceeded with in accordance with the law'. Aggrieved by the abovesaid order dated 30.6,1993, respective TJMAs. have been filed.
2. So, the only question in these appeals is whether the abovesaid notice of opposition filed oh 23.11.1992 is in time. Section 2l only grants three months 'from the date of advertisement' and a further period of one month as stated above. Accordingly, Rule 51 also says that Notice of opposition should be given in the prescribed form with three months from the date of the advertisement. Then Rule 51(2) of the Act says thus:
An application for an extension of the period within which a notice of opposition to the registration of a trade mark may be given, shall be made on Form TN44 accompanied by the prescribed fee. Such period of extension shall not exceed one month in the aggregate.
3. The learned Counsel for the appellants Mr. T.R. Mani argues that the date from which the abovesaid period has to be computed, should begin from the date when any subscriber of the abovesaid journal containing the abovesaid advertisement receive has said journal earliest. But, the Authority below points out that a Division Bench of the Travancore - Cochin High Court in Pavunny Ouseph v. Registrar of Trade Marks A.I.R. 1952 T.C. 77 has interpreted the corresponding old Rule 30 and has held that the relevant date must betakenas the date of despatch of the journal to the subscribers.
4. As already indicated, Section 21 refers the starting point for computing the abovesaid period, only as the 'date of the advertisement' and the said expression 'date of the advertisement' has been interpreted so far to mean the date of despatch of the abovesaid journal containing the advertisement. The relevant observations of the said Division Bench are as follows:
The object of advertising that an application for the registration of a Trade Mark has been received by the Registrar is obviously to let the public knows about it and to invite opposition to it, if any. That object will be served only when the journal is distributed among, the subscribers or otherwise made available to the public and not when it is printed or few copies or cuttings distributed among the subordinate offices of the Trade Marks Registry or among the applicants for registration. The relevant file called for at the instance of the appellant from the office of the Additional Registrar of Trade Marks, Trichur, shows that it has all along been the practice of the Trade Marks Registry to count the four months' time prescribed by Rule30 from the date of despatch of the journal containing the advertisement to the subscribers. This practice commends itself to us as embodying a common sense interpretation of the rule prescribing the period of time within which opposition should be filed. There is, therefore, in our opinion, no merit whatever in the present complaint against the registrar's refusal to regard the opposition as out of time.
When the publication of the advertisement was only on or about 9.8.1949, the time for giving notice of opposition extended upto 8.12.1949 & a notice filed in November, 1949 can by no stretch of imagination be held to be not within time.
5. I may also add that in T. Narayanan's Law of Trade Marks and Passing off - Fourth Edition at page 76 I find the following passage, relying on Pavunny Ouseph v. Registrar of Trade Marks A.I.R. 1952 T.C. 77:
The period of three months referred to in Section 21(1) should be counted from the date of despatch of the Journal containing the advertisement to the subscribers and not the date printed on the Journal.
At the footnote in the same page, I also find the Author saying as follows:
This practice followed by the Trade Marks Registry was approved in Pavunny Ouseph v. Registrar of Trade Marks A.I.R. 1952 T.C. 77.
6. So, it must be well known at least to all connected with the Trade Marks Registry that time begins to run from the abovesaid date of despatch. That apart, the reasons given by the Travancore High Court in the abovesaid decision are also quite sound and reasonable and I also concur with the saidview and I am unable to accept the contention of the learned Counsel.
7. Even accepting the argument of the learned Counsel for the appellants that the date from which the abovesaid period has to be computed, should begin from the date when any subscriber of the abovesaid journal receives a copy of the said journal at the earliest point of time, I find that this argument is not supported by any specific plea or proof in this regard. The material part of the abovesaid interlocutory application dated 28.4.1993 in each of the two cases only says as follows:
That upon enquiry from the few other Trade Mark Attorneys, it has been revealed that the Trade Mark Journal No. 1035 was either received by them on 23.7.1992 or 24.7.1992.
But, there is no averment in the said petition that the above referred to persons were the earliest receivers of the abovesaid journal containing the abovesaid advertisement. It only says that the above referred to persons received the abovesaid journal on 23.7.1992 or 24.7.1992. It does not say that the abovesaid persons who received the said journal on 23.7.1992 were the earliest persons to receive the said journal. Further, even the supporting affidavits file a by several persons only say when actually each of them received the said journal. Some of them say that they received on 23.7.1992 and some others say that they received it on 24.7.1992. Those affidavits also do not say that no other person received it earlier. So, it is clear that the abovesaid period of four months, even on the basis of the interpretation which the learned Counsel wants to put, cannot be said to have begun only on 23.7.1992. Thus looking from any angle, I am unable to see any error in the respective impugned orders.
8. Just when I was about to conclude the dictation of the abovesaid order on 6.10.1993, the learned Counsel for the appellant submitted for the first time that these appeals under Section 109 of the Act should be automatically admitted since the right of appeal provided therein was just like a regular first appeal under Section 96, C.P.C. I may also state here that on that day the abovesaid appeals were respectively numbered as C.M.A. Nos. 1143 and 1144 of 1993 and they were posted for admission before me. When the abovesaid representation was made by the said counsel at the time when I was about to conclude the dictation of the abovesaid order, I was really surprised at the representation. Even earlier, such appeals under Section 109 of the Act had come up before me for admission. That apart, if the abovesaid representation is correct, he should have stated so even at the very outset when the said civil miscellaneous appeals were taken up for admission. But, he argued the said civil miscellaneous appeals, for admission for about 45 minutes. After hearing him fully, since I found that there was no error in the impugned orders of the Authorities below, I was dictating the said order. When I was about to conclude the dictation, the abovesaid representation was made.
9. Anyway, since I could not agree with that contention that the abovesaid appeals should be automatically admitted, I wanted him to substantiate his said contention, and so at his request, the appeals had to be adjourned to 8.10.1993. On 8.10.1993 I found that these appeals were not once again posted for admission, but only the stay petitions therein C.M.P. Nos. 13852 and 13853 of 1993 were posted before me. No doubt, then, I also found that the abovesaid C.M.A. were renumbered as T.M.A. Nos. 7 and 8 of 1993 respectively. When these stay petitions came up, I asked the counsel how the stay petitions alone were posted and not the main appeals for admission. Though the said counsel could not explain the position specifically, he pointed out that probably after the abovesaid civil miscellaneous appeals were renumbered as T.M.As., the Deputy Registrar of this Court, Mr.P.S. Balasubramaniam admitted them and ordered issue of notice to the respondents and that hence probably, the stay petitions alone had been posted. I was really puzzled and not knowing that was happening, I adjourned those stay petitions to 12.10.1993, so that 1 could make necessary verification from the Registry. Subsequently 1 have been told that since the appeals arise under Section 109 of the Act, they should have been numbered as T.M.As. and not as C.M.As. But, however, even T.M.As. should have been posted for admission before court as per the practice of this Court, but that by some mistake, abovesaid the Deputy Registrar had himself ordered notice on the T.M.As. on 7.10.1993 and that hence by mistake, the stay petitions alone came up on 8.10.1993.1 have been told further that since the mistake has been noticed subsequently, the T.M.As. would be posted for admission on the next day. Accordingly the abovesaid T.M.As. were posted for admission on 12.10.1993. Then the abovesaid counsel began to take me through several provisions of Code of Civil Procedure, like Sections 96, 100, 104, Order 41, Rules 1, 3-A and 11, Order 41-A, Order 42, Rule 1 and Order 43 and also Section 109 of the Act and Order 2 Rule 3(3)(ii) of Appellate Side Rules. However, on that date (12.10.1993), he did not very much press the point that these appeals should be automatically admitted as he represented earlier on 6.10.1993. But, he made another submission based on Order 1, Rule 3(3)(ii) of Appellate Side Rules. I may also state straightaway that both in Section 96, C.P.C. which provides for regular first appeals and Section 104 read with Order 43, Rule 1, C.P.C. which provides for civil miscellaneous appeals against certain orders, the expression used is 'appeal shall lie'. Likewise, Section 109(2) of the Act also uses the same expression 'shall lie'. I may also incidentally state that Section 109(2) of the Act runs as follows:
Save as otherwise expressly provided in Sub-section (1) or in any other provision of this Act, an appeal shall lie to the High Court with the prescribed period from any order or decision of the Registrar under this Act or the rules made thereunder.
But, it must be noted that the use of the expression 'shall lie' does not mean that either the appeal under Section 96, C.P.C. or the appeal under Order 43, C.P.C. read with Section 104, C.P.C. or the appeal under Section 109(2) of the Act should necessarily be admitted automatically before ordering notice to the respondent.
In fact, with reference to both the abovesaid appeals under the Code of Civil Procedure, Order 41, Rule 11(1) provides thus:
The appellate court, after sending for the record if it thinks fit so to do, and after fixing a day for hearing the appellant or his pleader and hearing him accordingly if he appears on that day, may dismiss the appeal without sending notice to the court from whose decree the appeal is preferred and without serving notice on the respondent or his pleader.
Further in Umakant v. Parashuram : AIR1973SC218 , also it was only observed thus:
We felt that in the particular circumstances of this case it was not necessary to consider the larger question raised by Mr. Bal that in no circumstances can a High Court dismiss a first appeal summarily without giving reasons.
Thus, I find that the question whether the High Court could dismiss a first appeal summarily without giving reasons, alone has been left open. But, there is no doubt that this Court could dismiss even a first appeal under Section 96 (or the appeals under Order 41, Rule 11, C.P.C. or Section 109(2) of the Act) after giving reasons but without serving notice on the respondent. When I have given reasons for dismissing these appeals, I do not know how the learned Counsel could say that I should automatically admit the appeal. If that is so, there is absolutely no necessity for posting such appeals before the court.
10. Now, I shall deal with the point urged by the learned Counsel, relying on Order 2, Rule 3(3)(ii) of Appellate Side Rules, which runs as follows:
In all miscellaneous appeals other than appeals under Order 43, Rule l(u) of the Code, the Registrar may direct the issue of notice forthwith or post any such appeal before the court for orders.
[emphasis supplied]
Order 43, Rule 1(u), C.P.C. deals with appeals against remand orders and so it has no application to the present case. So, what the learned Counsel submits is that when the Deputy Registrar, as delegate of the Registrar, had already exercised his option under the abovesaid rule and ordered issue of notice to the respondent on 7.10.1993 after these appeals were numbered as T.M.As. the appeals cannot be posted for admission before court thereafter. I am really very much surprised at this argument. The very same appeals came before the court for admission on 6.10.1993, though they were then numbered as C.M.As. But, later, the Registry having thought that they have to be numbered as T.M.As. and not as C.M.As., has numbered them as T.M.As. But, simply because instead of numbering the appeals as C.M.As., they were numbered as T.M.As., the character of the appeals has in no way been changed since they still remain only appeals under Section 109(2) of the Act. If by some mistake, the Deputy Registrar, after numbering them as T.M.As., did not post them for admission again before the court, but straightaway issued orders to send notice to the respondents, that does not mean that when the said mistake is subsequently rioted by the Registry and the appeals are posted again for admission, it cannot be argued that the appeals cannot come up for admission before the court.
11. Further, the matter also has to be investigated how actually the said Deputy Registrar passed the abovesaid order dated 7.10.1993 in these appeals to issue notice to the respondents. Oh the whole I may very mildly say that lam not happy with what has happened in the present case.
12. In the above circumstances, the; above appeals are not admitted, but dismissed.