U.S. Sharma, SETM:
1. This dispose the review Petition (TM-57) filed on 10th May, 1990 by M/s. J.B. Hosiery Industries, B-70/18 DSIDC Complex, Lawrence Road, Delhi (hereinafter referred to as "the Opponents") against this Tribunal's order date 10th April, 1990 the facts in brief are :-
2. On 26th October, 1990 the Opponents filed an Interlocutory Petition praying therein to the stay Opposition proceedings DEL-4848 till the disposal of Suit No. 801 of 1989 filed by M/s Roop Hosiery Factory, Sadar Bazar, Delhi (hereinafter referred to as "the applicants"). The above stated Interlocutory Petition was dismissed by this Tribunal vide order dated 10th April, 1990. The Opponents have now sought review of the aforesaid order by filing their request on form TM-57 on 10th May, 1990. A copy of review petition was sent to the Applicants who filed their comments on 28th May, 1990. The matter came up before me on 27th July, 1990 when Shri S.K. Bansal, Advocate instructed by Shri K.C. Bansal, Advocate appeared for the Opponents and Shri K.L. Aggarwal, Advocate appeared for the Applicants.
3. The Opponents have stated in support of their review application that this Tribunal did not take into consideration the decision of the then Deputy Registrar of Trade Marks, Delhi, dated 30th August, 1989 in the matter of Interlocutory Petition in opposition proceedings DEL-4904 wherein the learned Deputy Registrar allowed the stay of Opposition proceedings till the disposal of suit pending in the High Court of Delhi. According to the Opponents the issues raised in that Interlocutory Petition in Opposition No. DEL-4904 and that of the Interlocutory petition in the present opposition proceedings are similar and identical, hence, the aforesaid decision in binding on this Tribunal. The counsel for the Opponents stressed that the ignorance or owner-looking the Deputy Registrar's order dated 30th August, 1989 which is a binding authority while passing the impugned order is an error apparent on the face of the record. The counsel for Opponents are my attention to the judgment of various High Courts in support of his contention that the decision of Co-ordinate or of superior benches should be followed as binding precedent in the interest of Judicial propriety and decorum. The counsel for Applicants contracted in the above stated plea of the Opponents emphasising that the decision dated 30th August 1985 is not a binding authority being based on entirely different facts and circumstances. The learned counsel specifically stressed that the Opponents are playing delay tactics to delay the opposition proceedings by one way or the other.
4. Undoubtedly, it is a well settled principle of Judicial decorum pad propriety that the decision of co-ordinate or of superior benches deciding upon any or some specific questions of law and establishing a general principal is a binding precedent which must be followed while deciding the same subject-matter in the interest of homoginity in judicial decisions. I also agree with the learned counsel for the Opponents that the failure to give effect to a binding precedent by oversight of otherwise is a mistake or error apparent on the face of record to justify the review. In the present case while giving the decision dated 10th April, 1990 this Tribunal has mainly relied upon the Supreme Court Judgment in case of National Sewing Thread Co. Ltd. v. Jamesh Chadwick and Bros. Ltd., AIR 1953 SC 357 The relevant extract of the judgment was reproduct at page '5' and '6' of the order dated 10th April, 1990. it is surprising that the Opponents have not mentioned either in their application for review-(TM-57) or in their pleadings, anything about the aforesaid Supreme Court judgment three reference of which is available on the face of the record i.e. the order dated 10th April, 1990, sought for review by the Opponents, by operation of Art. 141 of the Constitution of India, the principles laid down by the Supreme Court of India through their decisions enjoys the status of 'law'. I do not think that it is a mistake or error committed by a Tribunal, their arriving at a decision, if it has not discussed any decision of Co-ordinate bench because it has taken into consideration an earlier decision of a superior Court. I, therefore, do not agree with the plea of the Opponents' counsel that this Tribunal has committed a mistake or error in not considering the earlier judgment of this Registry dated 30th August, 1989, because the main guidance has been taken from the judgment of the Supreme Court referred to in the decision.
5. Before parting with the matter, I do want to put down that the Courts or Tribunals in their day to day affairs oftenly pass interlocutory orders on the interlocutory position filed by the litigants praying for one or the other interim relief. These orders are more oftenly based on the specific, facts and circumstances of that particular case and are not directed to lay down any legal principle, such orders, therefore, to my mind, cannot acquire as status of a binding precedent. The order dated 30th August, 1989 is the decision of the same nature based on the facts and circumstances of that case and as it is impossible that the facts and circumstances of two cases may be exactly the same, the order cannot be termed as a binding precedent. In Parkash Chand Pathak v. State of U.P., AIR 1960 SC 195 at p. 197-198 the Supreme Court of India held :-
"Decision even of the highest Court on questions which are essentially questions of facts, cannot be cited as precedents governing the decision of other cases which must rest in the ultimate analysis upon their own particular facts. The general princip
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les governing appreciation of circumstantial evidence, are well-established and beyond doubt or controversy. The more difficult question is one of applying these principles in the facts and circumstances of a particular case coming before the Court. That question has to be determined by the Court as and when it arises with reference to the particular facts and circumstances of that individual case. It is no use, therefore, appealing to precedents in such matters, No case on facts can be on all fours with those of another." 6. In the results, the Review Petition dated 10th May, 1990 is dismissed with no order as to costs.