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Shri Rajinder Singh, Trading as M/s Master Metal Industries v/s M/s. A.V.R. Engineers & Another

    S.R.No.246/09 in ORA/49/08/TM/DEL

    Decided On, 11 September 2009

    At, Intellectual Property Appellate Board


    For the Appellant : Shri M.R. Bhalerao, Advocate. For the Respondents : R1, Shri S.K. Bansal, Advocate.

Judgment Text

(Circuit Bench Sitting at Delhi)

Hon?ble Ms.S.Usha, Vice- Chairman:

Review petition filed by the respondent in the original rectification application in ORA/49/08/TM/DEL to review the order dated 01.05.2009 allowing the rectification application and directing the Registrar to remove the trade mark under No.1047896 in class 11 from the Register of Trade Marks.

2. The review petition has been filed on the grounds that the applicant in the rectification application i.e. AVR Engineers have not disclosed the correct address even though they were aware of the same and had obtained an order in their favour by playing fraud and on the merits of the matter.

3. We have heard the counsel for the review petitioner. The counsel reiterated the contents of the application. The counsel drew our attention to Rule 23 of the Intellectual Property Appellate Board (Procedure) Rules, 2003 and submitted that when there is a rule provided for review petition as to fees, limitation time, the Board has powers to review its own orders.

4. Review means an act of looking, offer something again with a view to correction or improvement. The power of review is not an inherent power, it is a creature of Statute. Law 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.

5. In Grindlays Bank Vs. 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 exparte 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 exparte award. It is urged that the award although exparte 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 exparte 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.?

6. The Supreme Court in Patel Narshi Thakershi Vs. 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

7. The review petition has been filed to review the exparte order passed on merits. The original rectification application was heard and decided exparte after substituted service by way of publication as the earlier notices were returned unserved with the endorsement ?left?. The main contents of the review petitioner is that fraud has been played by the applicant in the main application for rectification by not disclosing the correct address. It has been the view of various Courts that non appearance of the counsel or party cannot be a ground for recalling the order.

8. In the case on hand, the order has been passed on merits after completion of service. The review petition is not due to procedural defect or inadvertent error. The rule merely prescribes the form in which an application for review may be made. The rule may be contrasted with section 127(c ) of the Act. The provision deals with the power of Registrar of trade marks and based upon that the Registrar, may on application made in the prescribed manner review its own decision. There is

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no such corresponding provision either under the Act or the Rules, framed thereunder conferring power on the Intellectual Property Appellate Board to review the orders or decision. 9. We are of the view that the Appellate Board has no jurisdiction to review its own order or decision except due to procedural defect or inadvertent error. We, are therefore, of the opinion that the review petition is not maintainable. Accordingly, without going into the merits of the review petition, the same is dismissed.