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Judgment
S. Usha, J
Review Petition filed by the Respondent No. 1 to review the order dated 09th May 2007 setting aside the order dated 24th February 2005 and
allowing the appeal.
The Review Petition has been filed on the ground that the order has been passed by mistake and there is error on the face of the records. The
Review petition has been filed on the merits of the original appeal.
A review is by no means an appeal in disguise whereby an erroneous decision is reheard and corrected, but only for patent error. The scope of
review is for review of error apparent only and not to review the judgment. It is well settled principle that the review proceedings are not by way of an
appeal.
This Board has held in various other matters that this Board has no power to review its own orders or decisions as there is no provision in the Act
or Rules. It is therefore worthy quoting the observation of this Board in R.P No. 9/07 in ORA/50/06/TM/KOL - Godrej Saralac Ltd. v. Reckitt
benckiser (India) Ltd. at Para 9 & 10.
In Grind lays Bank v. Central Government the Court was required to consider, inter alia whether the Labour Tribunal had any jurisdiction to set
aside the ex-parte award particularly when it was based on evidence. The objection as to the jurisdiction of the Tribunal, raised before the Court was
in the following terms:
It is contended that neither the Act nor the Rules framed hereunder confer any powers upon the Tribunal to set aside an ex parte award. It is urged
that the award although ex parte, was an adjudication on merits as it was based on evidence led by the Appellant, and, therefore, the application made
by Respondent No. 3 was in reality an application for review and not a mere application for setting aside an ex parte award
The Supreme Court held as follows:
It is true that there is no express provision in the Act or the rules framed hereunder giving the Tribunal jurisdiction to do so. But it is a well known rule
of statutory construction that a Tribunal or body should be considered to be endowed with such ancillary or incidental powers as are necessary to
discharge its functions effectively for the purpose of doing justice between the parties. In a case of this nature, we are of the view that the Tribunal
should be considered as invested with such incidental or ancillary powers unless there is any indication in the statute to the contrary. We do not find
any such statutory prohibition.
The expression, 'review', it was held by the Supreme Court, in the above case is used in two distinct senses, namely ""(1) a procedural review which is
either inherent or implied in a Court or Tribunal to set aside a palpably erroneous order passed under a misapprehension by it, and (2) a review on
merits when the error sought to be corrected is one of law and is apparent on the face of the record"". It was further held, that it is in the latter sense
that the Supreme Court in Patel Narshi Thakershi v. Pradyumansinghji held that no review lies on merits unless a statute specifically provides for it. It
was also held that when a review is sought due to a procedural defect, the inadvertent error committed by the Tribunal must be corrected ex debito
justitiae to prevent the abuse of its process, and such powers inheres in every Court or Tribunal.
The decision in Patel Narshi Thakershi V. Pradyumansinghji AIR 1970 SC 1273) is an authority for the proposition that the power of review is not
an inherent power, it must be conferred by law either specifically or by necessary implication.
Based on the above observation, we are of the view that there is procedural error in the case on hand, rather the Petitioner has sought review on
merits. There is no provision to review our own order either in the Trade Marks Act or in the Rules framed hereunder.
We do agree that the Intellectual Property Appellate Board (Procedure) Rules provides two months time limit to file the Review Petition on Form 6
with a prescribed fee, but under the Act or the Rules and the Board is not conferred with the powers to review its own order or decision. In fact, the
Registrar has powers to review its own order as per Section 127(c) of the Act, whereas this power is not there for the Board under the Act or Rules.
We therefore are of the view that the Review Petition is not maintainable and is accordingly dismissed without costs.