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Judgment
S. Usha. J
The miscellaneous petition has been filed by the Respondent seeking dismissal of the appeal under Order 47 Rule 7of the Code of Civil Procedure
read with Section 161 of the Code of Civil Procedure.
The Respondent No. 2/Petitioner herein filed the miscellaneous petition on the ground that the appeal is not maintainable either in law or on facts of
the case as the well settled proposition of law is that the order rejecting the review petition is not appealable and the other ground is that the opposition
proceedings appealed against was by M/s Sachdeva and Sons where as, the appeal has been filed by M/s Sachdeva and Sons Industries Pvt. Ltd.
The Appellant/Respondent filed their reply to the miscellaneous petition stating that the miscellaneous petition is baseless and wrong. The provisions
of Order 47 Rule Order 47 Rule 7 of the Code of Civil Procedure are not operative here in this case. The counsel has relied on the prayer made in the
appeal seeking for an order from this Board to set aside the impugned order dated 02.01.2009 or in the alternative to modify the order dated
26.12.2002 (against which review petition has been filed - subject matter of the present appeal). The Respondent has mainly dealt with the merits of
the main appeal.
We have heard both the counsel and both reiterated what was stated in the miscellaneous petition and the reply respectively. The counsel for the
Respondent/Appellant had relied on few judgments in support of his contentions in the main matter. The counsel for Respondent had sent written
submissions dated 26.09.2010 after the miscellaneous petition was heard and orders were reserved which is the usual practice adopted by the counsel
in all matters. The same is not taken on record and considered for the reason as there was no such direction by us when orders were reserved and
also that no copy has been sent to the other side. Even if copies are sent we will have lo give an opportunity to the other party to reply.
We shall first deal with the ground as to whether the appeal is maintainable as against an order in the Review Petition. The order passed in a
review petition is not appealable as per the provisions of Order 47 Rule 7(1) of the Code of Civil Procedure. In the instant matter before the Board,
the provisions of the Trade Marks Act are to be taken into consideration for deciding this issue. It is worth quoting the provisions of Sub-section (1) of
Section 91 :
Appeals to Appellate Board. -- (A) Any person aggrieved by an order or decision of the Registrar under THIS Act, or me rules made Thereunder
may prefer an appeal to the Appellate Board within three months from the date on which the order or decision sought to be appealed against is
communicated to such person preferring the appeal.
On plain reading of the provisions, it is clear that an appeal can be preferred by any person aggrieved by an order or decision of the Registrar. It is,
therefore, clear that any person aggrieved by the order or decision can file an appeal within a period of three months from the date on which the order
is communicated. Based on this provision, any order or decision is appealable and therefore the present appeal is maintainable. Even though this Board
is not bound by the provisions of Code of Civil Procedure but in the interest of natural justice and as per the provisions of the Act, we are of the
opinion that the appeals maintainable.
The next ground was that there was mismatch in the cause title. The counsel for the Respondent though was only trying to defend his client by
pleading and arguing on the merits of the case did not counter this issue either in his reply to the miscellaneous petition or during the arguments. This
issue being the one which was supposed to have been raised by the Registry of the Board at the time of numbering the appeal, which has not been
done by the Registry, In such circumstances, we are of the view that the litigant should not be penalized for no fault on their part. We, therefore, direct
the Respondent/Appellant to file necessary miscellaneous petition with supporting documents, if any, for the mismatch of the cause title within a'
period of three weeks from the date of receipt of this order. The miscellaneous petition No. 160/09 is disposed of in the above terms with no costs.