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Judgment
S. Usha, J
1 . This review petition has been filed to review the order of this Board dated 17.03.2009, treating the appeal as abandoned in terms of Sub-rule (2) of
Rule 17 of the Intellectual Property Appellate Board (Procedure) Rules, 2003.
2 . The review petition has been filed on the grounds that the counsel for the first respondent has made false, incorrect and misleading statements; by
which gross miscarriage of justice has resulted; the adjournment application on Form 5 has been placed in time before the Board; the counsel for the
respondent had only sought for adjournment on the earlier occasions on the ground that the matter is being settled; the non appearance of the
petitioner was neither willful nor wanton.
We have heard the counsel for the petitioner on the issue as to the maintainability of the review petition. The counsel submitted that the counsel for
the respondent had misled this Board by stating that no talks of settlement were going on, whereas there was several matters pending before various
forums between the same parties, where settlement talks were going on. The counsel further submitted that the provisions under the Intellectual
Property Appellate Board (Procedure) Rules, 2003 provide that the review petition is to be filed within two months from the date of order under
review, in that case the Appellate Board has powers to maintain the review petition.
4 . In Grindlays Bank v. Central Government MANU/SC/0308/1980 the Court was required to consider, inter alia, where 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 time 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 know 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.
5 . The Supreme Court in Patel Narshi Thakershi v. Pradyumansinghji Arjunsinghji MANU/SC/0433/1970 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 review petition has been filed to review and recall the order of this Appellate Board not due to procedural defect or inadvertent error
committed, but for the mistake committed by the review petitioner. Review means an act of looking, offer something again with a view to correct or
improve. The power of review is not an inherent power, it is creature of statute. Law must confer it either specifically or by necessary implication.
The review is not an appeal in guise whereby an erroneous decision is reheard and corrected, but lies only for patent error. The scope of review is for
review of ""error apparent"" only and not to review the judgment / order, even if the parties are in an position to satisfy the court that the order under
review is an erroneous order.
7 . Courts have held that absence of counsel or parties or negligence on the part of the party or his pleader is not a ground for recalling or reviewing
the order. Non-appearance of the party when the matter is called cannot be a sufficient ground for review of the order. The error committed by the
petitioner cannot be considered to be an error apparent on the face of the order to be reviewed.
8 . There is no provision either under the Act or the Rules framed thereunder conferring powers on the Intellectual Property Appellate Board to
review its own order or decision. Though under Rule 23 of the Intellectual Property Appellate Board (Procedure) Rules, 2003, a time limit for filing the
review petition is given, fees to be paid is specified and also Form No. 16 is given, no powers are conferred under the Act.
We are, therefore, of the opinion, without going into the merits of the review, that the review petition is not maintainable. Accordingly the review
petition is dismissed.