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Judgment
S. Usha, J
The Appellant in the main appeal has filed a petition to review the order dated 19.03.2010 passed by this Appellate Board. The Registry of this
Board has raised the issue as to how this review petition is maintainable in view of the earlier orders of this Board in review petitions.
The review petition was filed stating the entire facts of the case and the merits of the appeal. The Petitioner also submitted that they had raised
various grounds which was not dealt by this Board as well as Judgments relied on during the arguments were not considered while passing the order
against which the review is preferred.
The matter was placed before the Board for deciding the issue of maintainability of the review petition on 24.09.2010. The counsel relied on Rule
23 of the Intellectual Property Appellate Board (Procedure) Rules, 2003 and submitted that it is prescribed in the rules that the review petition is to be
filed within a period of two months from the date of order as well a fee of Rs. 3000/-is prescribed. The counsel relied on the following Judgments:
(i) 2008(1) CCC 347 (SC) Mohd. Akram Ansari v. Chief Election Officer and Ors. -A point not dealt with in the judgment is presumed to be not
pressed at the time of arguments though pleaded. This is a rebuttable presumption. In case of a grievance that a point was pressed but not dealt within
the judgment an application has to be filed before the same Judge / Court / Bench.
(ii) 1982 (2) R.C.R. 193 M/s Aggarwal Hardware Works Pvt. Ltd. v. Kumari C.V.C. Vasantha -Right to file an appeal is a substantive right but once
that right is exercised, how the appeal is to be decided is a procedural matter.
(iii) 2002 (25) PTC 50 (Del) Virendra Sethi v. Kundas Das and Ors. -Because it many not always be of any interest to any lawyer or agent to raise
such objection and only the concerned or affected persons can at best be expected to raise such an objection. In any case it was the duty and
responsibility of the concerned authorities under the Trade and Merchandise Marks Act, 1958 to ensure that the advertisement is published properly
and nothing is left vague or uncertain.
(iv) Diary No. 3482/2009/TM/IPAB Amalco Herbal Products v. Three-N-Products Pvt. Ltd. - 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.
(v) 2010 (43) PTC 442 (Del) Rajnish Aggarwal and Ors. v. Anantam - The registration in class 35 is not correctly granted in accordance with the
Trade Marks Rules, 2002, hence the Defendant cannot take the benefit of Sections 28(3) and 30 of the Trade Marks Act, 1999. Thus there is no bar
to the suit for infringement against the Defendant.
(vi) AIR 2009 (Gau)121 Pranab Dhar v. Rajesh Deb and Anr. - Procedure to be followed -When the legislation in a Statute conferred a power either
on a Court or on a Tribunal to adopt its own procedure for deciding an issue, then that tribunal is not debarred to review its order in the interest of
justice.
(vii) 2010 (20 CCC 359 (RAJASTHAN) - Smt. Gavra Devi v. State of Rajasthan and Ors. - Courts must give reasons as to why the judgment cited is
not applicable in the facts and circumstances of the case.
(viii) J.T 1993 (5) S.C 27 . Nagaraj v. State of Karnataka - Any order passed by a court of law so by the higher court and specially this Court where
decisions are declarations of law are not only entitled to respect but are binding and have to be enforced and obeyed strictly. No court much less an
authority however high can ignore it. Any doubt or ambiguity can be removed by the court which passed the order and not by authority according to its
own understanding.
We have heard and considered the arguments of the counsel. Before we deal with the matter and give our finding we would like to condemn the
behaviour of the counsel in the Court. The counsel was passing unwarranted comments about the Members in the Bench. The records placed will
speak for it. The counsel first started asking the Board if he should argue as no notice for today's hearing was received either by his office or by his
client. The Board was wondering as to what the counsel was submitting as he was aware of the hearing and being present that question ought not to
have been raised. In fact on the earlier occasion i.e. on 6.8.2010 when the matter was listed the counsel for the Petitioner did not appear whereas had
sent a request on Form 5 seeking adjournment on the ground that ""the under-signed counsels (though signed by one counsel) are not in a position to
attend the aforesaid date of hearing on 6.8.2010 because of some personal difficulties. The matter was adjourned even in the absence of the counsel.
It is worthwhile to quote in this context the observation of the learned Judge of the Gujarat High Court in AIR 2004 Gujarat 99 Jai Ambe Ice Factory
v. Recovery Officer at para 7 ""...In my view, merely because a telegram is sent by the lawyer would not be sufficient ground to interfere with the
powers exercised by the Tribunal, because if the litigants or the lawyers are seeking adjournments in any of the matters, proper procedure is to move
appropriate application either personally or through some authorized representatives at the time when the matter is called out or is taken up for hearing
by the Tribunal. Merely because a telegram is sent, it cannot be asserted as a right that the Tribunal should have considered the same, because
normally when the proceedings are going on such type of correspondence would not be entertained. In a given case, if it is brought to the notice of the
Tribunal that such telegram is there, the tribunal may consider the matter for adjournment. However, it is not necessary that merely because the
telegram is sent to the Registrar of the Tribunal, the Tribunal would be required to exercise its judicial power upon such correspondence or such
telegram in the matter is exercising in the pending appeal.
In the given circumstances and based on the above observation, we are of the view that the Petitioner cannot sit back in his office and expect this
Board to inform him of the next date of hearing. In the interest of his client the counsel should have taken steps to find out the next date of hearing. It
is also pertinent to mention that the usual practice of this Board is to send notices to clients and the counsel if it is for the first time, if already listed and
adjourned no notice is sent and it is also put up in the website of this Board regularly. In such a case, the counsel being present and prepared to argue
before us should not have raised the question.
The main matter i.e. the original appeal was heard and orders reserved on 02.02.2010. The orders were pronounced on 19.03.2010. The main
appeal was against the order of the Registrar of Trade Marks dismissing the opposition under Rule 50(2) of the Trade Marks Rules, 2002.
On 30.03.2010 after the orders were sent to the counsel, the counsel wrote to the Registry of this Board requesting for the certified copies of the
case laws and / or references"" as relied on and submitted by them in support of their case at the hearing on 02.02.2010. They also stated that they
are prepared to pay the necessary copying fee, if required by the Registry. The Registry replied back on 01.04.2010 stating that the certified copies of
case laws or references placed before the Board during hearing are not supplied to the counsel. Even before this reply could be sent the counsel again
on 31.03.2010 and 21.04.2010 had written letters to the Registry stating at ""the notes in the handwriting of the Judge"" as well as the order sheet,
pleadings, Judgments and all the documents received n by the court form part of the court records, according to Part A and Chapter 16 of the Delhi
High Court Rules (Photo copy enclosed) the copies of the aforesaid/ desired case laws and / or references can thus duly be furnished to us and
cannot hence be denied by the Registry to be supplied to us. The registry reiterated what was stated in its letter dated 01.04.2010 by letters dated
15.04.2010 and 25.05.2010.
On 24.5.2010, the instant review petition was filed. The matter was placed before the Board to enable the counsel to satisfy as to the maintainability
of the review petition. The counsel was only trying to argue the matter on merits of the case and after hearing the case orders were reserved. On
25.09.2010 after the orders were reserved, the counsel had sent a letter along with the written submissions which was not directed by this Board while
reserving orders. (A copy of the letter is annexed for clear reference). The comment of the counsel is unwarranted. The counsel on appearing before
us did not seek adjournment but only wanted to know if he was to argue without a notice, we made it clear that when he was there he could get along
with the matter. To say we forced the counsel or hurriedly heard the matter does not hold good, as the counsel was prepared to argue the matter with
the relevant Judgments in support of his case which has been mentioned in para 3 of this order.
We shall now deal with the Judgments referred to by the counsel in support of his case as regards the issue of maintainability - Mohd. Akram
Anasari's case (supra) this was relied on to say that the grounds relied on and pleaded were not considered and dealt with in the impugned order under
challenge by the review Petitioner. We think this case has no relevance to the case on hand as it is for the counsel to satisfy the Board the powers of
the Board whether their own decision could be reviewed when there is no such provision in the Act M/s Aggarwal Hardware's case (supra) was
relied on to say that power of review is a procedural matter. In this matter it is under the Delhi Rent Control Rules 1959 - Rule 23 it is said that the
provisions of the Code of Civil Procedure have virtually become part and parcel of the Act which again has no relevance to the issue on hand.
Virendra Sethi's case (supra) this is matter where the application which was advertised in the Trade Marks Journal was not clear and the court held
that the concerned authorities to ensure that the advertisement is proper and not uncertain. Amalco Herbal case (supra) - no doubt this is a matter
pertaining to the powers of the Board to review. This Board had in fact held that the Act did not provide any provisions to review its own decision and
it was held that the Board has no powers except only in the case of procedural defect. In the instant case, we do not think there is any procedural
defect. Rajnish Aggarwal's case (supra) has no relevance to the case on hand as it relates to an infringement action. Pranab Dhar's case (supra) - in
this case the statute has conferred powers on the claims Tribunal to adopt its own procedures unlike in the present Act and therefore the Gauhati
Court has distinguished the Judgments of the Supreme Court. Gavra Devi's case (supra) not relevant to the issue on hand.S. Nagaraj's case (supra) -
review is exercised to remove an error and not for disturbing finality which case is not relevant here. In fact, we observed that if really they were
aggrieved by the order, they could as well approach the next forum for their remedy, for which the counsel had no answer.
We shall deal with the powers of the Appellate Board as to reviewing its own decision or order. This Board has clearly held in a number of
matters that the Board has no review powers to review its own order except for any procedural defect or mistake committed by the Board. Rule 23 of
the Intellectual Property Appellate Board (Procedure) Rules, 2003 quoted by the Petitioner when considered provides for a time limit of two months
for a review petition to be filed and also the form in which it is to be filed. This Rule does not confer any powers on the Board to review its own
orders.
In this regard we quote the observations made this Board in a similar matter in R.P. No. 09/07 in M.P. No. 131/06 in ORA/50/06/TM/KOL
In Grindlays 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 thereunder 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 thereunder 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.
During course of the arguments the counsel submitted that the grounds raised in the memo of appeal was not considered while passing the order,
so there is a procedural defect and the order is to be reviewed. Based on the contention of the counsel we are of the opinion that review is based on
merits of the case and not on any procedural defect. Even though the matter was placed before us for deciding the issue as to the powers of review
and not the review petition on merits, the counsel was trying to justify by placing the facts of the case on merits.
When the Act or the Rules do not confer power on the Board to review its own orders or decisions, we are of the view that this Board has no
powers to review its own orders. The petition is therefore not maintainable and is dismissed with no order as to costs.