Bhupinder Jain Trading As Mahaveer Rice Traders vs Sachdeva And Sons Industries Pvt. Ltd. And The Registrar Of Trade Marks, Trade Marks Registry

S. Usha, Technical Member

1 . The above three miscellaneous petitions are filed by the applicant herein in the main application for rectification. Miscellaneous petition No. 132/08

is for staying the operation of the impugned order dated 23.06.08 pending disposal of the present appeal. Miscellaneous petition No. 186/08 is for

taking on record the list of documents mentioned along with this petition. Miscellaneous petition No. 187/08 is for a direction to the respondent No. 1 to

produce the original courier/postal receipt dated 28.06.05 with acknowledgement.

2 . The petitioner stated that the respondent No. 1 in their counter statement to the main appeal had stated that they had forwarded their evidence

under Rule 50 of the Trade Marks Rule, 2002 to the Registrar of Trade marks along with copies to the petitioner herein in the opposition proceedings.

The petitioner stated that he had not received the entire set of documents said to have been sent, before the Registrar of Trade Marks. The petitioner

had, therefore, contacted the counsel for respondent No. 1 to ascertain the same. The petitioner prayed that the original courier receipt along with the

acknowledgement be produced by the respondent No. 1 by a direction of this Appellate Board and that the correspondences sent to the respondent be

taken on record.

The respondent No. 1 filed their reply denying the material allegations made in the petition.

4 . The petitioner stated that the impugned order be stayed till the disposal of the appeal in the miscellaneous petition No. 132/08 on the ground that the

impugned order was contrary to the facts on record and the provisions of law and that the order cannot be sustainable in law.

The respondent No. 1 filed their reply denying the material allegation and prayed that the petition for stay be dismissed with costs.

All the three applications were heard together. We have considered the arguments of both the counsel and have gone through the records.

M.P. No. 132/08

The petitioner, who was the applicant before the Registrar of Trade Marks has prayed that the impugned order dated 23.06.08 be stayed pending

disposal of the appeal. The Registrar has passed an order allowing the opposition and dismissing the application for registration. The only ground on

which the petitioner has filed this petition is that the order was contrary to law and that the petitioner has got a good case on merits. In our opinion the

petitioner has not made out a prima facie case to grant an order of stay. The application for registration has been rejected. So by not having the trade

mark registered, the rights of the petitioner are not affected. Common law rights are still available to the petitioner. Therefore, the petitioner will not in

any way be put to loss or cause hardship if no order to stay the operation of the impugned order is granted. The balance of convenience is not in

favour of the petitioner to grant stay. In such circumstances the miscellaneous petition No. 132/08 is dismissed.

M.P. Nos. 187 and 187/08

The petitions are for taking on record the list of documents and to direct the respondent No. 1 to produce the original courier receipt with

acknowledgement.

The main matter is an appeal against the order of the Registrar which was ordered on 23.06.08. The documents which are now being relied on by

the petitioner is of the year 2005. Apart from that, the petitioner has now raised a new issue which was not before the Registrar. On perusal of the

impugned order, the petitioner has not raised or submitted before the Registrar as to non receipt of the documents filed by the respondent No. 1.

Even though this Appellate Board is not bound by the Code of Civil Procedure, in the interest of justice, if we are to take on record the documents,

the petitioner has not satisfied the conditions laid down in the provisions of Order 41 Rule 27 of the Code of Civil Procedure. The petitioner could have

produced documents which were of the year 2005 which were very much in the custody of the petitioner at the time of opposition and this issue as to

not having received the documents were not raised before the Registrar.

We are also of the view that the petitioner having not raised such an issue before the Registrar cannot raise the same before us and pray for

taking on record the list of documents. Assuming that this issue was raised and not dealt with by the Registrar, it is for the petitioner to go before the

same Court for remedy and not by way of appeal. Here, it is worthy to mention the observation of the Supreme Court reported in 2008 (1) CCC 347

(SC) in Mohd. Akram Ansari v. Chief Election Officer and Ors.

In this connection we would like to say that there is a presumption in law that a Judge deals with all the points which have been pressed before him. It

often happens that in a petition or appeal, several points are taken in the memorandum of the petition or appeal, but at the time of arguments only some

of these points are pressed. Naturally a Judge will deal only with the points which are pressed before him in the arguments and it will be presumed

that the appellant gave up other points, otherwise, he would have dealt with them also. If a point is not mentioned in the judgment of a court, the

presumption is that the point was never pressed before the learned Judge and it was given up. However, that is a rebuttable presumption. In case, the

petitioner contended that he had pressed that point also (which has not been dealt with in the impugned judgment), it is open to him to file an

application before the same learned Judge (or Bench) which delivered the impugned judgment, and if he satisfies the judge (or Bench) that the other

points were in fact pressed, but were not dealt with in the impugned judgment, it is open to the concerned Court to pass appropriate orders, including

an order of review. However, it is not ordinarily open to the party to file an appeal and seek to argue a point which even if taken in the petition or

memorandum filed before the court below, has not been dealt with in the judgment of the Court below. The party who has this grievance must

approach the same Court which passed the judgment and urge that the other points were pressed but was not dealt with.

In view of the above observation, we are also of the view that the petitioner ought to have approached the learned Registrar for proper remedy.

However, on going through the impugned order, we do not find any such argument was made on behalf of the petitioner. We, therefore, cannot take

on record the list of documents and also cannot direct the respondent No. 1 to file the courier receipt.

The petitioner has neither raised this issue before the Registrar not has satisfied the conditions under Order 41 Rule 27 of CPC. We accordingly

dismiss the miscellaneous petition Nos. 186 and 187/08. There shall be no order as to costs.