ORDER No.11/2010


Ms S. Usha, Vice-Chairman:


1. Miscellaneous Petition No.159 of 2009 filed by the respondent in the main rectification application praying that the documents filed as Annexure A & B ? Copy of the written statement and the replication to the written statement filed in Civil Suit No.524 of 2004 before the Additional District Court be taken on record.


2. Miscellaneous Petition No.190/2009 filed by the respondent in the main rectification application seeking directions of this Board for amending the counter statement filed to the main rectification application.


3. The reasons for filing the annexures A & B was that the documents were relevant for deciding the issue as to whether the applicant is the respondent herein is a person aggrieved and has a locus standi to file the main rectification application. In the interest of justice and fair play that the evidence is relevant and needed for just decision and ought to be taken on record.


4. The respondent filed the reply stating that the miscellaneous petition was filed only to deliberately delay the hearing on the main rectification application. He also stated and relied on the orders of this Board in M.P. No.4/2009. The documents cannot be taken on record as they were very much available with the petitioner even on the date when the counter statement to the rectification application was filed. Those annexures are neither relevant nor needed for just decision of the matter. The miscellaneous petition be dismissed with costs.


5. Miscellaneous petition No.190/09 has been filed for amendment of the counter statement by adding the following paragraph 4 after paragraph 3 ?


?4. That the applicant has filed the present application in violation of the provisions of section 124 of the Trade Marks Act, 1999. It is submitted that the respondent is the registered proprietor of the impugned trade SIDHMOLA under No.948623 as of 18.03.2000 and had taken the defence of the said registration before the Court of the Additional District Judge, Delhi in the Civil suit already pending before filing the present application by the applicant against the respondent, in respect of the respondent?s composite trade mark consisting of the word SIDHMOLA. The applicant did not plead invalidity of the said registration before the trial Civil Court which as per the provisions of section 124 of the Trade Marks Act, 1999, is the condition precedent to filing the Application before this Tribunal. Under these circumstances, which already exist on the judicial record of the said civil suit, the present application cannot be entertained and tried by this Hon?ble Tribunal. In view of the same facts and circumstances, this Hon?ble Tribunal has no jurisdiction under section 125 of the Trade Marks Act, 1999.?


The reason for not incorporating the said facts earlier was due to the inadvertence.


6. The respondent filed their reply stating that the miscellaneous petition itself is not maintainable and is to be dismissed with costs. This is only to delay the proceedings as the pleadings are all complete and the main rectification application is ripe for hearing.


7. The counsels reiterated what was stated in both the miscellaneous petition and the reply to the same.


8. We have heard the counsels and have gone through the miscellaneous petition and reply. The settled principle of law is that the evidence should not be shut down at any stage as was laid down by the Supreme Court. We are also of the same view that evidence can be taken on record if it is necessary to decide the matter. The reason given is to decide the issue as to whether the applicant is a person aggrieved. We do not understand how the petitioner/respondent should shoulder the burden when the onus is on the respondent/applicant to prove the same. We think this application is filed only to satisfy the Board for the observation made by this Board in the order No.78/2009 dated 2205.2009 in M.P. No.04/2009.


?Paragraph 13 ? Even though there has been different view by different High Courts we are to decide the issue keeping in mind the facts and circumstances in the case on hand and follow the view of the jurisdictional High Court. The first point will be that the respondent i.e. the petitioner herein has not pleaded about the maintainability of the application in the counter statement nor has raised this issue as to filling of the rectification in the counter statement. The petitioner has only stated that the applicant is not a person aggrieved, the provision under which the application has been filed has not been mentioned and the application has not been filed in the proper format and has also stated that the rival marks are different.?


9. We are of the opinion that the two annexures A & B were in the possession of the petitioner at the time of filing of the counter statement in the year 2005. Filing of this miscellaneous petition is no doubt only to drag on the matter. In view of the above, we do not find any merit in the petition and hence liable to be dismissed.


10. The Appellate Board though not bound by the procedure of the Civil Code, in the interest of natural justice the principles are to be followed. Order 6 Rule 16 CPC provides for amendment at any stage. Amendment which is of such a nature which will not affect the rights of the other side can only be allowed. As was pointed out in the order dated 22.05.2009, that nothing was pleaded in the counter statement the petitioner is trying to get the defects rectified.


11. Applications of these nature cannot be allowed. The petitioner has adopted a different route to get the

mistakes corrected. On perusal of both the miscellaneous petitions, it is clear that it is only to rectify the defects stated in the order No.78/2009 that nothing was pleaded and no documents placed, the petitioner has filed a petition for pleadings those statements and to place the documents on record. The petitioner if aggrieved by the order dated 22.05.2009 has to approach the proper forum for remedy and cannot approach the same court for setting right the act. 12. We therefore find no merits in both the miscellaneous petition and accordingly dismiss Miscellaneous Petition Nos.159/2009 and 190/2009 with no order as to costs.