AI Structured Summary
Not yet generated for this judgment
Judgment
U.D. Salvi, J.—Rule. Taken up for final hearing with the consent of parties.
The orders dated 13/03/2009 passed by the Intellectual Property Appellate Board (Circuit Bench at Mumbai) rejecting the prayer for production of additional documents in M.P. No. 112/2008 in OA/20/2004/TM/MUM, M.P. No. 108 & 110/2008 in TA/62-63/2003/TM/MUM (M.P. No. 27 & 28 of 2003). M.P. Nos. 111/2007 & 106/2008 in ORA/14/2007/TM/MUM and M.P. No. 114/2008 in OA/90/2004/TM/MUM are assailed in these petitions.
The aforesaid bunch of appeals are the result of row over the registration of Trade mark "Laxman Rekha" between the petitioner Bhatia, the sole proprietor of M/s. V. Bhatia International and the respondent No. 3 Midas Hygiene Industries Pvt. Ltd. before the Assistant Registrar of Trade Marks. The petitioner moved the said Misc. Applications for production of the following documents in the said appeals:
The petitioner pleaded that the documents sought to be produced before the Appellate Board were not in his possession when the appeals were preferred and could be secured by means of provisions of Right to Information Act with great effort; and the said documents are relevant and necessary for proper adjudication of the said matters particularly for showing how the respondent No. 3 M/s. Midas Hygiene Pvt. Ltd. by concealment of material particulars and manipulation of the records had succeeded in making out a case based on false user before the Registrar of Trade Marks.
The contesting respondent No. 3 Midas Hygiene Industries Pvt. Ltd. resisted the applications by filing replies. The contesting respondent contended that the documents sought to be produced are irrelevant and despite the same being in the knowledge of the appellant, there was no whisper about them in the pleadings. Generally, the contesting respondent No. 3 denied all the contentions of the appellant in support of the claim for production of the additional evidence. The maintainability of the applications for production of additional evidence was also questioned by the contesting respondent, particularly with reference to Rule 8 of the Intellectual Property Appellate Board (Procedure) Rules, 2003.
After hearing the parties, the learned Board Members with reference to the said Rules observed that though there is no express provision for tendering additional evidence at the appellate stage, Section 92 of the Trade Marks Act, 1999 exhorted the Appellate Board to be guided by the principles of natural justice and for the purpose of discharging its function under the Act to exercise powers as vested in a Civil Court under the Civil Procedure Code, 1908 while trying a suit in respect of receiving evidence, etc. The learned Board for the purposes of the said applications moved by the petitioner/appellant thought it fit to take recourse to the principles for production of additional evidence in C.P.C. contained in Order 41 Rule 27 and sought guidance from the judgment of the Apex Court in Mahavir Singh and Ors. v. Naresh Chandra and Anr. 2001 (1) S.C.C. 309 expounding the said principles. With reference to Clauses 1(a) and (aa) of Order 41 Rule 27 of CPC, the learned Board observed as under:
...In so far as the second circumstance (i.e. 1(aa) of Order 41 Rule 27 of CPC) is concerned, it is noticed that the applicant/appellant has not averred that the subject documents were not in its knowledge but only has said that the subject documents were not in its possession when it preferred the appeal. It is not specified whether the applicant/appellant made any diligent attempt or effort to obtain copies of those documents from the concerned authorities. Further, the applicant/appellant has not pointed out that it has mentioned about the non-availability of those documents and reserved its right to produce as and when the same comes in its possession. It is also not the case of the applicant/appellant that notwithstanding the exercise of due diligence, the evidence sought to be filed was not within its knowledge or could not, after exercise of due diligence, be produced by it at the time when the impugned order was passed by the Assistant Registrar of Trade Marks. The diligence or otherwise of the applicant/appellant can be safely inferable from the instance that the appeals were filed by the appellant in the first half of year 2004 and now sought to file the additional evidence in the second half of the year 2008.
The observations made by the learned Board are not correct. The Appellate Board has to allow the production of additional evidence in either of the three contingencies spelled out in Clause 1(a)(aa) or (b) of Order 41 Rule 27 of the C.P.C. So far as the contingency under Clause 1(aa) of Order 41 Rule 21 of the C.P.C. is concerned, it is sufficient for the parties seeking permission to produce the evidence to establish that notwithstanding the exercise of due diligence, such evidence was not within his knowledge or could not after after the exercise of due diligence, be produced by him at the time when the decree appealed against was passed. It is, therefore, sufficient for the party seeking permission to produce additional evidence that it establishes that such evidence could not, after the exercise of due diligence, be produced by him at the time when the decree appealed against was passed.
Evidently, there is an averment made by the applicant/appellant that some of the documents sought to be produced were not in his possession and could be secured with considerable effort by resorting to the provisions of Right to Information Act, 2005. It can also be seen that after the orders were passed by the Registrar of Trade Marks and appeals preferred against them the Right to Information Act, 2005 came to be enacted and as such before such enactment, there was no effective tool to secure the documents from the concerned quarters. The perusal of the documents sought to be be produced in evidence and listed at Annexure Q of the petition reveals that the documents marked as Exhibit "A", Exhibit "A1", Exhibit "C", Exhibit "G", Exhibit "I", Exhibit "J", Exhibit "M", Exhibit "N", Exhibit "P" and Exhibit "W" could be secured from the concerned quarters by resorting to the provisions of the Right to Information Act, 2005, and could not have been in the possession of the applicant/appellant and, therefore, could not have been produced at the time of passing the impugned order by the Registrar of Trade Marks. The production of the said documents, except at serial Nos. 6 to 8 and 17 to 21 before the Appellate Board is, therefore, justified. In our opinion, the lower appellate forum ought to have allowed the public documents on record with the aid of Order 41 Rule 27 of C.P.C. The petitions are partly allowed accordingly. Hence, the order.
The orders dated 13/03/2009 passed in M.P. No. 112/2008 in OA/20/2004/TM/MUM, M.P. No. 108 & 110/2008 in TA/62-63/2003/TM/MUM (M.P. No. 27 & 28 of 2003). M.P. Nos. 111/2007 & 106/2008 in ORA/14/2007/TM/MUM and M.P. No. 114/2008 in OA/90/2004/TM/MU are set aside. The production of aforesaid documents listed at Annexure "Q" to the petitions and except the documents at serial Nos. 6 to 8 and 17 to 21, before the Intellectual Property Appellate Board (Circuit Bench at Mumbai) is allowed. All the petitions are partly allowed accordingly. The pending appeals are directed to be heard and decided, as per law, as expeditiously as possible and preferably before 31st March, 2011.
Rule is made absolute in terms of the above order with no order as to costs.