AI Structured Summary
Not yet generated for this judgment
Judgment
S. Usha, J
Application to condone the delay of 4 years, 3 months and seven days in filing the appeal. The applicant/appellant herein has preferred an appeal
against the order dated 11.12.2003 with a delay of 4 years, 3 months and seven days. The order dated 11. 12.2003 was passed by the Assistant
Registrar treating the opposition as abandoned for noncompliance of sub-rule (2) of Rule 50 of the Trade Marks Rules, 2002. The appellant preferred
a review petition against the said order before the Registrar on 11.02.2004. The said Review Petition was dismissed by the Assistant Registrar on
05.05.2005. On 04.08.2005, the appellant filed an appeal against the Review Petition order before this Board which was also dismissed on 19.03.2008.
The appellant on receipt of the Board's order dated 19.03.2008, had to consult the lawyers as to the next course of action and therefore, filed the
appeal against the main order dated 11.12.2003, with a delay, on 01.08.2008. As the Review Petition was pending till 2005, the appellant could not file
the appeal. In the interest of justice, the delay ought to be condoned.
2 . The respondent strongly opposed to this application to condone the delay. The respondent had also filed a miscellaneous petition raising an issue as
to the maintainability of such application to condone the delay as well as the main appeal.
We have heard both the counsel.
The settled principle of law is that the litigant shall not be made to suffer on too technical grounds. In this case on hand, delay is too long. The
reasons given for the delay, though justifiable, cannot be said to be accepted. The appellant has in fact challenged the Review order where a detailed
order has been given dealing with the merits of the case, and therefore, now challenging the same order after a long delay cannot be granted.
When a Review Petition is pending, the main order cannot be challenged. After an order has been passed in the Review Petition, the aggrieved
person may challenge the main order. The dismissal order passed in the Review Petition is not appealable. But, as per the provisions of Section 91 of
the Trade Marks Act, any order is appealable before this Board. Therefore, the appeal filed against the Review order was entertained by this Board.
Having appealed against the Review order and not succeeded, the appellant cannot again file appeal against the main order. If such method is allowed
to be followed, there will be multiplicity of proceedings which will have no end. In view of the reasons, we think that the delay cannot be condoned.
We do not find any valid or sufficient reasons to condone the delay. Accordingly, the application for condoning the delay is dismissed with no order as
to costs.