Cadila Healthcare Ltd. vs Union of India and Others

S.K. Keshote, J.—This matter was earlier fixed for hearing on 5-5-1998. On this date, this Court has called upon the learned counsel for

the petitioner who put appearance, to satisfy how this petition which is filed against an interlocutory order is maintainable. The learned counsel for

the petitioner prayed for time to prepare on this question and that prayed was accepted and this matter was ordered to be fixed for hearing for

today. Though the matter is fixed today for hearing on the request of learned counsel for the petitioner, none is present for the petitioner. Heard

learned counsel for respondent No. 3.

Briefly, the facts of the case which are necessary for the purpose of deciding this matter are as follows :

The petitioner applied for registration of trade mark ''Conazole'' under No. 488075 in Class 5 on 28th March, 1988 before the respondent No.

The respondent No. 3, Wockhardt Limited gave a notice of opposition opposing the registration of the mark advertisement under number

488075 in Class 5 in the Trade Marks Journal No. 1112 dated 1-10-1995 at page No. 1949 before respondent No. 2 on 26-12-1985. The

respondent No. 2, vide its letter No. GEN-4882-4883 dated 10-1-1996, acknowledged the receipt of the notice of opposition and the said

notice of opposition was numbered as opposition No. AMD-1042 under intimation to the petitioner. Thereafter, the respondent No. 2, vide its

letter No. 2996-2997 dated 6-11-1996 forwarded a copy of the notice of opposition to the petitioner. The petitioner filed counter statement

before the respondent No. 2 on 13-12-1996, a copy of which has been sent to respondent No. 3 by respondent No. 2 vide its letter dated 7-1-

1997, under intimation to the petitioner"".

The respondent No. 3 vide its letter dated 3-3-1997, made a request on form TM to the respondent No. 2 for an extension of time of two

months for filing their evidence under Rule 53 of the Trade and Merchandise Marks Rules, 1959 (hereinafter referred to as the ""Rules 1959""), in

support of the notice of opposition. The aforesaid request made by respondent No. 3 was entered in the record of the registry on 21st March,

1997 and it was granted by respondent No. 2 and time for filing of the evidence by respondent No. 3 was extended upto 7th May, 1997. The

respondent No. 3, thereafter, vide its letter dated 30th April, 1997, forwarded its evidence in support of the opposition by way of an affidavit of

one Mr. K. M. Mirza, along with some exhibits as mentioned therein which was also taken on record by the registry vide its letter dated 9-5-

1997, under intimation to the petitioner, inter alia inviting its attention to Rule 54. At this stage, the petitioner filed an interlocutory petition in the

registry on 29th May, 1997 praying therein that the opposition of the respondent No. 3 to the application filed by the petitioner be deemed to have

been abandoned under Rule 53(2) of the Rules aforesaid long back as it did not take any action within the statutory period and the registry had no

occasion to pass any order under Rule 53(2) of the Rules, 1959. Under the impugned order, the respondent No. 2 rejected the aforesaid

interlocutory petition filed by the petitioner and further direction that the petitioner may file its evidence under Rule 54 in support of the application

within two months from the date of receipt of copy of the order. Hence this Special Civil Application before this Court. The respondent No. 3 filed

reply to the Special Civil Application to which the petitioner filed a rejoinder affidavit.

It is not in dispute that the respondent No. 3 could have filed its evidence in support of the notice of opposition on or before 9th March 1997.

The respondent No. 3, vide its letter dated 3-3-1997, made a request in Form TM-56 to the registry requesting therein for extension of time of

two months for filing evidence under Rule 53 of the Rules 1959, in support of the notice of opposition. This fact is also not in dispute. So the

respondent No. 3 submitted and application for extension of time for filing its evidence under Rule 53 of the Rules 1959 in support of the notice of

opposition before time as it was permissible to it under Rule 53 for filing of the evidence in support of the notice, has expired. This application of

respondent No. 3 was accepted by respondent No. 2 as it is evident from the letter of the latter dated 5th May, 1997. It is also not in dispute that

within the extended period of time for filing of the evidence under Rule 53 of the Rules 1959, in support of the notice of opposition, the respondent

No. 3 submitted its evidence vide letter dated 30th April, 1997. This evidence was taken on record by the registry, as it is not disputed by

petitioner, vide its letter dated 9th May, 1997 and the petitioner was called upon to produce evidence in support of this application.

Instead of producing the evidence in support of the application as provided under Rule 54 of the Rules 1959, the petitioner has filed an

interlocutory petition and prayed for declaration that the opposition of the respondent No. 3 be deemed to have been abandoned under Ruled

53(2) of the Rules 1959 long back as it did not take any action within the statutory period. It has further been prayed that the respondent No. 2

had no occasion to pass any order under Rules 53(2) of the Rules, 1959.

The learned counsel for the respondent No. 3 raised manifold contentions raising therein the preliminary objection regarding maintainability of

this Special Civil Application as well as on merits of the matter. One of the contentions has been raised that powers do lie with the respondent No.

2 to extend time for filing of the evidence in support of the notice of opposition even after expiry of the statutory period as provided for doing so

and a reference in this respect has been made to Section 101 of the Trade and Merchandise Act, 1958 (hereinafter referred to as the ""Act 1958)"".

Though prima facie I find sufficient merits in the contention raised by the learned counsel for respondent No. 3, I am not expressing any opinion

on any of the contentions as in my opinion, this petition, at this stage, is not maintainable and this petition deserve to be dismissed only on the

ground that it has been filed against an interlocutory order.

From the reading of the Special Civil Application as well as the contentions raised by the learned counsel who appeared for respondent No. 3 in

the matter, I find that the petitioner tried to raise contention that in case the evidence in support of the notice of opposition is not produced within

two months from the service on it of a copy of counter statement by the registry, then it should have been deemed to have been a case of

abandonment of the opposition. The learned counsel for respondent No. 3 has raised a contention that sub-rule (2) of Rule 53 of the Rules 1959,

read with Section 101 of the Act, 1958 empowers the authority, herein the respondent No. 2, to extend the time for filing of the evidence in

support of the opposition even after expiry of statutory period as provided for filing the same under sub-rule (1) of the said rules. Though prima

facie this contention of the learned counsel for respondent No. 3 cannot be said to be without any substance, but still I do not consider it to be

appropriate to express any final opinion on this contention as, as stated earlier, this petition deserve to be dismissed only on the ground that it has

been filed against an interlocutory order.

This petition has been filed by the petitioner under Article 226 of the Constitution of India. Speaking for the Division Bench of this Court, Mr.

Justice K. G. Balakrishnan, in the case of Chhagan Ranchod Kukava v. General Manager, Western Railway, Bombay 1998(1) GLH 461,

observed that an order passed by the Tribunal can be challenged under Article 226 or 227 of the Constitution of India only if there is a

jurisdictional error or procedural error apparent on the face of the record. Under the impugned interlocutory order, the respondent No. 2 has

decided that it is not the case where the opposition of the respondent No. 3 should be deemed to have been abandoned. So, the matter has not

been decided finally. Only the action of respondent No. 2 taking on record of these proceedings, the evidence filed by respondent No. 3 has been

held to be justified. That evidence has been taken on record by extending the period of filing evidence and the petitioner has been given

opportunity to produce its evidence in support of its application. So by this impugned order, the proceedings are not finally culminated in favour of

the respondent No. 3. The matter has to be decided on merits. An interlocutory order is always subject to challenge after the proceedings in which

it has been passed are finally terminated while challenge the final order passed by the authority before the appropriate forum. One of the cardinal

principles of exercising extraordinary powers by this Court under Article 226 of the Constitution is that even if the order impugned in the writ

petition appears to be illegal, in case it does not result in failure of justice to the party concerned or in denial of any right of challenging the same,

this Court will not interfere in the matter under Article 226 of the Constitution of India. A reference in this respect may have to the two decisions of

the Apex Court in the case of A. M. Allison v. B. L. Sen AIR 1958 SC 227, and in the case of Balvant Rai Chemical Trivedi v. M. N. Nagrashna

(AIR 1950 SC 407). In the present case, if ultimately the matter is decided against the petitioner by the respondent No. 2, then while challenging

the final order, the petitioner has all the right to challenge this interlocutory order also, if it is worthy of challenge, before the appropriate forum

available to challenge the final order. Normally, the matters are to be decided on merits by affording to the contesting parties all the opportunities to

produce their evidence, but even if it is taken that the respondent No. 3 could not have been permitted to produce evidence in support of its notice

of opposition, as what the petitioner contends, still the extension of time granted to respondent No. 3, for filing the evidence by respondent No. 2

will not result in failure of justice as, as stated earlier, that order is always subject to challenge, but not at this stage. The petitioner has to wait for

adjudication of the matter as well as for final termination of proceedings. There are all possibilities that the petitioner may succeed in the case and in

that eventually, there may not be any necessity of challenging this order. This is another point which favours the view which I am taking that against

an interlocutory order, normally, the petitions are not maintainable. It is not gain say that the present problem with the Court is of heavy pendency

of the matters and if the petitions are entertained against interlocutory orders, which can always be challenged while challenging the final orders

passed in the proceeding, it will be nothing but nothing by only an act of injury which the litigants are suffering on account of delay in disposal of

their matters by the Courts. Moreover, not it can be justified at this stage to challenge this order when it will not result in failure of justice to the

petitioner. The petitioner will have all the opportunity to submit its evidence upon the application and still if it feels that this order could have been

passed, it has all the right to challenge the same at the appropriate stage, for which it has to wait till the matter is finally decided.

This application of the petitioner has been filed u/s 18 of the Act, 1958. On this application, final order has to be passed by respondent No. 2

u/s 21 of the Act, 1958 and that may be either the registration as prayed for of the trade mark is granted or it is rejected. u/s 109 of the Act

aforesaid an appeal does lie to this Court within a prescribed period of limitation from any order or decision of Registrar under the Act, 1958 or

the Rules made thereunder. Where the final order of the authority is appealable, then certainly any interlocutory order passed in the proceedings

can be challenged by the aggrieved person in the appeal filed against final order. In such class of cases, challenge to the interlocutory order,

normally should not be entertained by this Court, under Article 226 or 227 of the Constitution of India. The party concerned should be asked to

first wait for the final adjudication of the matter and still after the termination of the matter finally, if it feels aggrieved of the interlocutory order, then

it can be made a ground of challenge in the appeal or any other proceeding provided, while challenging the final order as one of the grounds

therein.

The matter is yet to be examined from another angle. From the scheme of the Act, 1958 it transpires that the application for registration of

trade marks has to be disposed of expeditiously. Otherwise also, leaving apart the scheme of the Act aforesaid, whether it is a proceeding before

the Civil Court or Criminal Court or before this Court or even before any quasi judicial authority or administrative authority, the same has to be

disposed of expeditiously. This object, as well in some of the cases the mandate of the statute, can only be achieved or attained where the Courts

which are having powers of superintendence or extraordinary powers under Article 226 of the Constitution of India, do not permit the parties to

stall the final adjudication of the matter by questioning the decision of the authorities with regard to interlocutory matters when the matter if worthy,

can be agitated even after final orders are passed. I consider it to be fruitful here to make for reference to the decision of the Apex Court in the

case of The Cooper Engineering Limited Vs. Shri P.P. Mundhe, . The Court, in this case, held at page 1902 (of AIR) :

In Management of Ritz Theatre (P) Ltd. Vs. Its Workmen, , this Court was required to deal with a rather ingenious argument. It was

contended in that case by the workmen, in support of the tribunal''s decision that since the management at they very commencement of the trial

before the Tribunal adduced evidence with regard with regard to the merits of the case it should be held that it had given up its claim to the

propriety or validity of the domestic enquiry. While repelling this argument this court made some significant observations :

In enquiries of this kind, the first question which the Tribunal has to consider is whether a proper enquiry has been held or not. Logically, it is only

where the Tribunal is satisfied that a proper enquiry has not been held or that the enquiry having been held properly the findings recorded at such

an enquiry are perverse, that the Tribunal derives jurisdiction to deal with the merits of the dispute .....

If the view taken by the Tribunal was held to be correct, it would lead to this anomaly that the employer would be precluded from justifying the

dismissal of his employee by leading additional evidence unless he takes the risk of inviting the Tribunal to deal with the merits for itself, because as

soon as he asks for permission to lead additional evidence, it would follow that he gives up his stand based on the holding of the domestic enquiry.

Otherwise, it may have to be held that in all such cases no evidence should be led on the merits unless the issue about the enquiry is tried as a

preliminary issue. If the finding on that preliminary issue is in favour of the employer, then, no additional evidence need be cited by the employer, if

the finding on the said issue is against him, permission will have to be given to the employer to cite additional evidence.

Taking into considering the totality of the facts of this case, this writ petition which has been filed by the petitioner against an interlocutory order

cannot be entertained and the same is dismissed. Notice discharged. Interim relief granted by this Court stands vacated. No order as to costs.

Petition dismissed.