Case: Ram Lal Hari Chand & Sons, Kotkapura Vs Som Brothers and Co., Kotkapura. Trademark Tribunal
| Counsel | For Appellant: Mr. D.K. Handa, Trade Marks Agent and For Respondents: Mr. S.C. Chadha, Advocate |
| Judges | M. R. Bhalerao, DRTM |
| Issue | Trade and Merchandise Marks Rules, 1959 - Rule 56; Civil Procedure Code - Order 13 Rule 2 |
| Judgement Date | May 12, 1987 |
| Court | Trademark Tribunal |
Judgment:
M. R. Bhalerao, DRTM
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These proceedings relate to the Interlocutory Petition filed on 4.2.87 by the Opponents in Opposition No. Del-4072 to Application No. 361784.
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The matter came before me for hearing on 7.5.87 Shri D.K. Handa, Regd. Trade Marks Agent appeared for the Opponents/petitioners. Shri S.C. Chadha, Advocate appeared for the Applicants/Respondents.
The Opponents/Petitioners, prayer is that sixteen affidavits, which have been filed with their petition, be considered as 'further evidence' under Rule 56.
The grounds are as follows:
"This opposition is lodged mainly on the grounds that the mark is not distinctive of the Applicant firm and that the word and device of flower is common to the trade in respect of the goods for which the applicants are seeking registration. Our evidence, therefore, consists of trade declarations from various parties. It is well known that due to Political disturbances in Punjab for the last 2-3 years the trading community was not in a position to maintain the accounts and to look after their business properly. In the circumstances, despite best efforts on the part of the Opponents they could not contact the traders from whom the affidavits are to be taken and filed."
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Rule 56 enables the Registrar to grant leave to either of the parties to File 'further evidence' upon such terms as to costs or otherwise, as he may think fit. From the wording of the said Rule it is clear that the power to grant leave to file further evidence is in the exercise of the discretionary powers of the Registrar; but, the said Rule does not state the grounds on which the Registrar should exercise his descretion. If the corresponding provisions in the Civil Procedure Code are looked for guidance it is seen that Order 13, Rule 1 of the C.P.C. provides that these documents which the parties intend to rely in the suit shall be produced at or before settlement of issues. Order 13, Rule 2 of the Civil Procedure Code casts a duty upon the party concerned to show good cause for non-production of the documents before settlement of issues at the suit. The observations made in two reported cases regarding the aforesaid provisions are important. These are:-
"The object of Order 13, Rule 2 is merely to prevent belated production of documents so that it may not work injustice to the defendant (Madan Gopal v. Hemraj AIR 1976 S.C. 461 at P. 470). "All the rules of procedure are maturally meant for the administration of justice...
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