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Judgment
Z.S. Negi, J
1 . The appeal above is under Section 91 of the Trade Marks Act, 1999 (hereinafter referred to as the Act) against the order dated 7.7.2003 passed
by the Assistant Registrar of Trade Marks disallowing the opposition and accepting the application for registration. During the pendency of the appeal,
the appellant has under Section 151 of the Code of Civil Procedure, 1908 filed a miscellaneous application being M.P. No. 112/2008 seeking
permission to file additional evidence.
In the miscellaneous application it is stated that the appellant's case through out has been that the respondent No. 1 has manipulated records to
create a case based on false user and that it has through the right to information applications collected certain material in respect of respondent No. 1
and now it seeks permission to file the additional affidavit with those documents/materials as additional evidence. It is alleged that the respondent No.
1 has deliberately concealed material particulars and approached the Registrar of Trade Marks with unclean hand and made false statement of user
before him. Averment is made that at the time of preferring the appeal, the appellant was not in possession of the documents presently sought to be
filed, whereas the respondent No. 1 was always aware of the same though it sought to camouflage the same. The appellant has stated that the
present application is made with bona fide and for genuine reasons and the documents sought to be filed along with the affidavit are otherwise very
relevant and necessary for proper adjudication of the matter. It is urged that in the interest of justice, equity and good conscience, the additional
evidence may not be shut out and is taken on record.
3 . The respondent No. 1 filed reply to the miscellaneous application denying the material averments made in the application and stating that the
application is beyond the scope of statutory provisions, frivolous, vexatious, founded with mala fide and ulterior motive, and without any merit. It is
stated that the respondent No. 1 categorically deny the allegations, in particular that the respondent No. 1 manipulated records to create a case based
on false user or approached the Registrar with unclean hands or suppressed any material facts or documents relevant to the proceedings. It is
submitted that collecting copies of the documents through the right to information application is a deliberate attempt of appellant to project that it had
no prior knowledge about those documents and thus to mislead this Appellate Board. The documents sought to be filed are irrelevant to the
proceedings and in any event all along the proceedings right from the lower tribunal up to present proceedings, the documents referred to by the
appellant were within its knowledge and at no point of time the appellant whispered about these documents in its pleadings and apart from this, the
documents are old and most of them are forming part of the records of the proceedings and not required at this stage of proceedings. It is further
stated that the present application, even otherwise, is not maintainable at this highly belated stage and in contravention of Rule 8 of the Intellectual
Property Appellate Board (Procedure) Rules, 2003. The present application is against the principles of allowance of further evidence and further
evidence is permissible only to put forth the subsequent events and happenings before the court/tribunal. Therefore, the question of taking them as
further evidence does not arise as the appellant was always aware of these documents and should have filed the same by obtaining them from the
authorities at the earlier stages of proceedings. It is submitted that the appellant is time and again filing frivolous applications in order to build up the
case in this manner knowing well that the present proceedings are appeal proceedings wherein the Appellate Board has to appreciate the evidence
which is adduced in the lower tribunal and not to permit further documents on record, especially which is bound to delay the final disposal of the
appeal. The present application is nothing but yet another attempt to stall the proceedings and to divert the attention of this Appellate Board from the
merits of the case.
4 . The miscellaneous application came up before us for hearing on 4.2.2009 when Shri Shailen Bhatia, Advocate, appeared for the appellant and Shri
Darius Dalal, Advocate, appeared for the respondent No. 1.
5 . We have carefully heard the learned Counsel for either side who made their submissions mostly on the lines of averments made in the pleadings.
Now the issue before us is whether the documents sought to be filed as additional evidence by the appellant is to be allowed or not. As the application
is made under Section 151 of the Code of Civil Procedure, 1908 but there is no express provision in or under the Act empowering the Appellate Board
to allow filing of additional evidence. However, Sub-rule (1) of Rule 8 of the Intellectual Property Appellate Board (Procedure) Rules, 2003 provides
that every application shall be in paper-book form and all evidences shall be in the form of affidavits, if any. Obviously this provision does not provide
for filing of additional evidence. Section 92 of the Trade Marks Act, 1999 deals with the procedure and powers of Appellate Board. Sub-section (1) of
that section provide that the Appellate Board is not bound by the procedure laid down by the CPC but shall be guided by the principles of natural
justice and Sub-section (2) thereof provide that the Appellate Board shall have, for the purpose of discharging its functions under the Act, the same
powers as are vested in a civil court under the CPC while trying a suit in respect of receiving evidence, etc. When the Appellate Board is to be guided
by the principles of natural justice, the burden is onerous on the Appellate Board and there cannot be any better principles than the time tested
principles of the CPC, to which we can fall back safely. The principle for adducing additional evidence contained in Order LXI Rule 27 of the CPC is
well known. It would be worth while to refer the judgment of the Apex Court in the case of Mahavir Singh and Ors. v. Naresh Chandra and Anr.
2001 (1) SCC 309 wherein the Court observed thus:
5 . Before we proceed further we would like to refer to the scope of an application under Order 41 Rule 27 CPC. Section 107 CPC enables an
appellate court to take additional evidence or to require such other evidence to be taken subject to such conditions and limitations as are prescribed
under Order 41 Rule 27 CPC. The principle to be observed ordinarily is that the appellate court should not travel outside the record of the lower court
and cannot taken evidence on appeal. However, Section 107(d) CPC is an exception to the general rule, and additional evidence can be taken only
when the conditions and limitations laid down in the said rule are found to exist. The court is not bound under the circumstances mentioned under the
rule to permit additional evidence and the parties are not entitled, as of right, to the admission of such evidence and the matter is entirely in the
discretion of the court, which is, of course, to be exercised judiciously and sparingly. The scope of Order 41 Rule 27 CPC was examined by the Privy
Council in Kessowji Issur v. Great Indian Peninsula Rly. Co. in which it was laid down clearly that this rule alone can be looked to for taking additional
evidence and that the court has no jurisdiction to admit such evidence in cases where this rule does not apply. Order 41 Rule 27 CPC envisages
certain circumstances which additional evidence can be adduced:
(i) the court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted, or
(ii) the party seeking to produce additional evidence, establishes that not withstanding the exercise of due diligence, such evidence was not within his
knowledge or could not, after the exercise of due diligence, be produced by him at the time when the decree appealed against was passed, or
(iii) the appellate court requires by any document to be produced or any witness to be examined to enable it to pronounce judgment, or for any other
substantial cause.
In the present case, it is not the case of either party that the first situation is attracted. So far as the second circumstance noticed above is concerned,
question of exercise of due diligence would not arise because the scientific equipment concerned from which examination is sought to be made itself
was not in existence at the time of trial and so that clause is also not attracted. In the third circumstance at the time of trial and so that clause is also
not attracted. In the third circumstance, the appellate court may require any document to be produced or any witness to be examined to enable it to
pronounce the judgment, or for any other substantial cause. The expression ""to enable it to pronounce judgment"" has been the subject of several
decisions including Syed Abdul Khader v. Rami Reddy wherein it was held that when the appellate court finds itself unable to pronounce judgment
owing to a lacuna or defect in the evidence as it stands, it may admit additional evidence. The ability to pronounce a judgment is to be understood as
the ability to pronounce a judgment satisfactory to the mind of the court delivering it. It is only a lacuna in the evidence that will empower the court to
admit additional evidence (see Municipal Corporation of Greater Bombay v. Lala Pancham). But a mere difficulty in coming to a decision is not
sufficient for admission of evidence under this rule. The words ""or for any other substantial cause"" must be read with the word ""requires"", which is set
out at the commencement of the provision, so that it is only where, for any other substantial cause, the appellate court requires additional evidence that
this rule would apply as noticed by the Privy Council in Kessowji Issue v. G.I.P. Rly. it is under these circumstances such a power could be exercised.
Now we would come to the facts of the case to see whether a case has been made out by the applicant/appellant to attract any of the above
circumstances enunciated under the above referred provision. It is not the case of either party that the first situation is attracted. In so far as the
second circumstance is concerned, it is noticed that the applicant/appellant has not averred that the subject documents were not in its knowledge but
only has said that the subject documents were not in its possession when it preferred the appeal. It is not specified whether the applicant/appellant
made any diligent attempt or effort to obtain copies of those documents from the concerned authorities. Further, the applicant/appellant has not pointed
out that it has mentioned in the pleadings about the non-availability of those documents and reserved its right to produce as and when the same comes
in its possession. It is also not the case of the applicant/appellant that notwithstanding the exercise of due diligence, the evidence sought to be filed was
not within its knowledge or could not, after exercise of due diligence, be produced by it at the time when the impugned order was passed by the
Assistant Registrar of Trade Marks. The diligence or otherwise of the applicant/appellant can be safely inferable from the instance that the appeal
was filed by the appellant in the first month of year 2004 and now sought to file the additional evidence in the second half of the year 2008. The third
circumstance is also not attracted in the case on hand. Almost all the documents sought to be filed as evidence pertain to the period prior to filing of
notice of opposition on 15.4.1999 by the appellant. The averment of the respondent No. 1 that the documents are old and most of them are forming
part of the records of the proceedings and not required at this stage of proceedings remains unrebutted by the appellant. The main appeal along with
other matters was with the consent of both the parties posted for hearing at Chennai on 9th and 10th July, 2008 but due to miscellaneous applications
filed by the appellant, the hearing of main appeal could not take place. We are of the opinion that the Appellate Board can pronounce the order
without having the documents sought to be filed now. This Appellate Board has so far neither required these documents to enable it to pronounce the
order nor there is any other substantial cause which exists to require such documents.
7 . For the reasons stated above, we are of the view that the miscellaneous application is devoid of any merits and deserve to be dismissed.
Accordingly, the miscellaneous application is dismissed without any order as to costs.