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The Goodyear Tyre and Rubber Company v/s Pankaj Group

    No:.........................
    Decided On, 24 July 1987
    At, Registrar of Trade Marks Kolkata
    By, THE HONOURABLE MR. H.P. SHUKLA
    By, ARTM
    For the Petitioners/Regd. Proprietors: Ms. Amarjyoti, Advocate instructed by M/s. Remfry & Son, Delhi. For the Respondents/Applicants for Rectification: Ashok Goyal, Advocate


Judgment Text
H.P. Shukla, ARTM:

1. These proceedings relate to the Registered Proprietors/Petitioners, Review petition dated 18-2-1987. The said Review Petition was filed to review the order and decision dated 20-1-1987 passed by me in the above Rectification proceedings.

2. The main grounds for the Review as stated in the Review Petition reads as under: -

The Petitioners requested the Assistant Registrar of Trade Marks to adjourn the above matter fixed for 17th December, 1986 vide their letter dated 11th December, 1986. They bona fide presumed that under normal circumstances the request for adjournment ought to have been allowed by the learned Tribunal. They were not present at the hearing fixed for 17th December, 1986 due to sufficient and bona fide reasons.

As per the order dated 20th January, 1987 passed by the Assistant Registrar of Trade Marks the matter was heard exparte as their application for adjournment was received on 19th December, 1986 i.e. before the impugned order was signed and sealed.

According to the established practice of the Trade Marks Registry in Bombay and its branches at Calcutta, Delhi and Madras, parties are given an opportunity to present their cases although their attorneys neither attended the hearing nor filed any request for adjournment.

That the observation of the Assistant Registrar of Trade Marks in his order dated 20th January, 1987 is not correct and is contrary to law convention and facts of the case. The learned Assistant Registrar of Trade Marks has failed to appreciate and that the applicants have copied our trade mark 'GOODYEAR' which also forms a prominent feature of our corporate name and trading style, have usurped our trade mark 'GOODYEAR' with dishonest intentions and ulterior motives. The applicants have failed to explain as to how they adopted the trade mark 'GOODYEAR'. The applicants who have come before this Hon'ble Tribunal with unclean hands ought not to be given any relief by this Hon'ble Tribunal.

That the petitioners will face irreparable loss and injury which cannot ber compensated in pecuniary terms by the removal of their Trade Marks under registration No. 12116 in Class 20.

The Hon'ble Tribunal has misinterpreted the provisions of Sections 46 and 50 of the Act.

In the circumstances and the reasons stated in foregoing paragraphs, the Learned Registrar is hereby requested to review his decision and re-open the entire matter and give the Registered Proprietors an opportunity to place their case and finally to proceed under the provisions of section 97(c) relating to Review Petition.

3. The matter came up before me for hearing on 2-6-1987 when Miss. Amarjyoti, Advocate instructed by M/s. Remfry & Son, Delhi appeared for Registered Proprietors/Petitioners and Shri Ashok Goel, Advocate for Delhi High Court appeared for the Applicants for Rectification/Respondents. Miss Amarjyoti, the learned Advocate for the petitioners contended at the hearing that the request on TM-56 for adjournment of the hearing fixed on 17-12-86 sent by the petitioners though received by the office on 19-12-86 after hearing was concluded but it was received by the office on 19-12-86 after hearing was concluded but it was received before the impugned order was signed and sealed and hence she requested me to allow the review petition. She also invited my attention to some instances mentioned in the Review Petition in this connection. Shri Ashok Goel, Advocate for the Respondents on the other hand vehemently opposed the aforesaid argument of Miss Amarjyoti, Advocate and submitted that the failure to attend hearing is no ground for review as the decision has been fully discussed and issued on merits. Further he submitted that the Petitioners were not deligent and they did not on merits. Further he submitted that the Petitioners were not deligent and they did not send the request on TM 56 for adjournment of hearing sufficiently in advance at the result it could not reach on or before the date of hearing. Shri Goel further submitted that the instances cited in the review petition were applicable in this case. Mr. Goel, Advocate of the Respondents relied on a decision issued by the Deputy Registrar of Trade Marks, Delhi in the matter of Magan Soap Industries vs. Soap Works (1982 PTC at page 23) where review petition was no allowed in the similar circumstances.

4. Section 97(c) empowers the Registrar to review his own decision. The act or the rules do not specify any ground for review of the Registrar's decision. It has been held in a patent case (in re National Co., Inc., A.I.R. 1934 CAL. 725) that the Code of Civil Procedure is not applicable to proceedings before the Controller of Patents and Designs, but the principles underlying the Code, insofar they are principles of natural justice, must of course be observed by him. The principle embodied in the provisions under Order 47 Rule 1 of Code of Civil Procedure, would, therefore, appear to be applicable to a review application under Section 97 (c). Under Order 47 Rule 1, of the Code of Civil Procedure, a review application can be entertained only on the basis of one or more of the following grounds;

(1) On the ground of discovery of new and important matter or evidence which, after the exercise of due diligence, was not within the applicants' knowledge or could not be produced by him at the time when the decree was passed or order made, or

(2) On account of some mistake or error apparent on the face of the record, or

(3) For any other sufficient reason.

The review petition does not contain the grounds that new and important matter or evidence has been discovered or that the decision dated 20-1-1987 contains some mistake or error apparent on the face of the record. The point which arises for consideration is whether the ground stated in the review petition is covered by the phrase, "any other sufficient reason". In Chaju Ram V. Neki (1922) 49 IA 144 followed in Moran Mar Basselios Catholicos v. most Rev. Mar Poulose Athenasius, AIR 1954 SC 526). It was held that 'any other sufficient reason' must be analogous to the other grounds mentioned in Order 47 Rule 1. The above decision was followed in Abdul Wajid v. Vishvanath (FB) AIR 1950 Mysore 55 at 56. Paragraph 4 of that decision reads as under: -

"The next point urged by the learned advocate for the petitioners is that his clients were only very anxious to get the services of their senior advocate who was then in Delhi and that in the interest of justice another opportunity may be given to them to have their case argued by admitting the review or re-hearing the case. Order 47, R.1 is restricted in its scope and confines itself to obtain a review on the grounds of the discovery of new and important matter of evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by the party at the time when the decree was passed or order made, on account of some mistake or error apparent on the face of the record. The learned Advocate does not deny that the grounds upon which the admission of review is urged do not come under any of these two categories; but he desires that the grounds urged by him should be considered to fall under 'any other sufficient reason' contained in the Section. It is explained by the Privy Council in Chhajju Ram v. Neki, A.I.R. (9) 1922 P.C. 112: (3 Lah, 127) that

"any other sufficient reason as meaning a reason sufficient on grounds at least analogous to these specified immediately previous"

It is obviously that neither the absence of the counsel nor the refusal to take part in the arguments which in fact is the case in these appeals can be brought under 'sufficient reason' as they cannot be said to be analogous to the grounds immediately proceedings. We are, therefore, of opinion that the grounds urged for the review are not within the purview of Order.47 Rule 1. Civil P. C. as held by the privy Council in Chhajjuram's case (A.I.R. (9) 1922 P.C. 112; 3 Lah 127) referred to above"

6. The main ground of review is that the request on Form TM. 56 for adjournment of the hearing was filed before the impugned order was signed and sealed, though, after hearing was concluded. The instances cited in review petition is of no help to the petitioners in this circumstance of the case as the fully discussed decision has already been issued on merits. Hence, in view of the decision issued by the Privy Council in Chhajju Ram vs. Neki case AIR (9) 1922 P. C. 112, which has been followed in other cases (AIR 1950 Mysore 55 at p 56, AIR 1954 Patna 63 at p. 164 and AIR 1954 SC. 526), it is obvious that the ground urged for review cannot be the ground on which a review can lie.

7. The act provides for review as well as an appeal and obviously the scope of the two must be different. A review cannot be considered a substitute for an appeal. This rule of law is stated in Tungbhadra Industries vs. Govt. of Andhra Pradesh AIR 1964 S.C. 1572 at page 1377 para 11): -

"A review is by no means an appeal in disguise whereby an erroneous decision is reheard and corrected, but lies only for patent error…………………&hell

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ip;….. where without any elaborate argument one could point to the error and say he is a substantial point of law which states one in the face and there could reasonably be no two opinions entertained about it a clear case of error apparent on the face of the record would be made out." 8. According to the above decision, a review is not an appeal in disguise whereby erroneous decision is reheard and corrected, but it lies only for patent error. The Registered Proprietors/Petitioners have not pointed out any error which can be considered is an error without advancing elaborate arguments and about which there cannot be two opinions. The other errors referred to by the Registered Proprietors/Petitioners in their review petition can be considered as errors apparent on the face of the record. 9. In view of above reasons, the said review petition is rejected. 10. The Registered Proprietors/Petitioners shall pay Rs. 50/- (Rupees Fifty only) to the Applicants for Rectification / Respondents as costs.
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