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Judgment
S. Usha, J
1 . The instant application has been filed by the appellant in the main appeal to review the order dated 21.07.2008 passed by this Appellate Board.
The original appeal was preferred against the order dated 15.02.2007 refusing the patent application No. IN/PCT/2002/2104/CHE filed on
18.12.2002, under Section 15 of the Patents Act, 1970 (hereinafter referred to as the Act). The main appeal was posted for hearing on 12.03.2008 and
the same was adjourned on the request of the appellant's counsel on personal grounds to 09.06.2008 in the presence of the authorized counsel. On
09.06.2008, the matter was adjourned to 21.07.2008 at the request of the authorized counsel for the appellant. On 21.07.2008, as there was no
representation on behalf of the appellant, the appeal was treated as abandoned as per Rule 17(2) of the Intellectual Property Appellate Board
(Procedure) Rules, 2003.
3 . Aggrieved by the said order dated 21.07.2008, the appellants have filed this review petition to recall and review the impugned order and to restore
the appeal it its original position.
4 . The petitioner has in the review petition stated that on 25.02.2008 and on 22.05.2008 they received hearing notice for the dates on 12.03.2008 and
09.06.2008 respectively. The petitioner could not be present to attend the hearing on those days and hence authorized a counsel to represent and the
authorized counsel filed Form-5 a request for adjournment. On 09.06.2008, the matter was adjourned to 21.07.2008, for which no notice of hearing
was received by the appellant. So the appellant could not make arrangements for either attending the hearing or seeking adjournment. The normal
practice followed by this Board is to inform about the next date of hearing to the parties concerned. Hence the counsel was awaiting for the notice of
hearing.
On 28.07.2008, the appellant received the order dated 21.07.2008 abandoning the appeal for non appearance. The non appearance on the part of
the counsel was unintentional and bonafide as no notice was received.
The grounds of review are as under:
(a) The abandoning order dated 21.07.2008 passed by the Appellate Board ought to be reviewed and recalled as the statutory requirement of issuing
notice of hearing always adhered to by the Appellate Board was not followed.
(b) The non appearance was neither intentional nor deliberate but for the only reason of not receiving the notice of hearing.
(c) In the interest of justice, the appellant should not be denied of its right of hearing and seeks compassion from this Appellate Board.
7 . The review petition was posted for hearing to decide the maintainability on 05.08.2009 where we heard Mr. Hemant Singh counsel for the review
petitioner.
The learned Counsel for the review petitioner submitted that as per the provisions of Section 92 of the Trade Marks Act, 1999, in the interest of
justice the review powers as per Civil Procedure Code are applicable to this Appellate Board. The Board has powers to review its own order.
9 . The counsel submitted that as per Rule 16 of the Intellectual Property Appellate Board (Procedure) Rules, 2003, no notice of hearing was received
from this Board by the appellant to appear before the Appellate Board. The counsel also submitted that the authorized counsel did not inform the date
of hearing to attend the hearing. The counsel, therefore, prayed that this Hon'ble Board may review the order of abandonment and hear the appeal on
merits.
The foremost issue for consideration is whether this Appellate Board has powers to review its own order or judgment.
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 must confer it either specifically or by necessary implication. The review is not an appeal in disguise whereby an
erroneous decision is reheard and corrected, but lies only for patent error. The scope of review is for review of an ""error apparent"" only and not to
review the judgment / order, even if the parties are in a position to satisfy the Court that the order under review is an erroneous order.
11 . In Grindlays Bank v. Central Government MANU/SC/0308/1980 the Court was required, inter-alia, whether the Labour Tribunal had any
jurisdiction to set aside the ex parte, 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 ex-parte award. It is urged
that the award although ex-parte 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 ex-parte award.
The Supreme Court held as follows:
It is true 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 known
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.
The Supreme Court in Patel Narshi Thakershi v. 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 justiitiae to prevent the abuse of its process, and such powers inheres in every court or tribunal.
13 . The review petition has been filed to review and recall our order not due to procedural defect or inadvertent error committed or even on the
grounds of violation of principles of natural justice, but for the mistake committed by the review petitioner. Even on the lines of the observation of the
Supreme Court in Narshi Thakershi's case we do not find any procedural error or inadvertent error committed by the Appellate Board. The Review
Petitioner had admitted that they were not communicated by the authorized counsel and hence could not be present when the matter was called. We
are of the view that it is an error committed by the petitioner, for which the Tribunal has no power to recall and review the order already passed.
Courts have also held that the absence of counsel or parties or negligence on the part of the party or its pleader is not a ground for granting
review. The reason for default in appearance when the case was called cannot be a sufficient ground for review of the ex parte, order.
Though the specific Form No. 6 has been prescribed, fees to be paid along with the review petition given, time limit given for filing the review
petition, no powers are conferred under the Act. In fact, the Registrar as well as the Controller have the powers to review his own order under
Section 127 (c) of the Trade Marks Act, 1999 and Section 77(f) of the Patents Act, 1970. There is no provision either under the Act or the Rules
framed thereunder conferring power on the Intellectual Property Appellate Board to review its orders or decisions.
We are of the opinion that the Appellate Board has no powers to review its own orders except for a procedural defect or inadvertent error
committed by the Tribunal. In the instant case there is no procedural or inadvertent error committed by the Tribunal to review the order. We,
therefore, dismiss the review petition as not maintainable.