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Judgment
S. Usha, J
These Miscellaneous Petitions have been filed by the Petitioner/ Respondent in the original rectification petition seeking direction of this Board to
take on record the documents filed in support of registration.
The grounds for filing these miscellaneous petitions are that there are several matters between the same parties before various forums and that it
has taken time to scrutinize the documents. The delay is not wanton. The Respondent/applicant will not be prejudiced in any manner if these
miscellaneous petitions are allowed, but the Petitioner will be seriously injured if these petitions are not allowed. The Respondent/applicant have filed
their counter-statement stating that the delay in filing the documents have not been explained and there is no sufficient cause given for the delay. The
counsel during the course of arguments relied on judgments in support of his contention that delay cannot be condoned if sufficient cause is not given.
The matters were taken up for hearing in the Circuit Bench Sitting at Kolkata on 21.6.2010. Learned counsel Dr. Alok M. Saha appeared for the
petitioner /respondent and learned Counsel Shri Debnath Ghosh appeared for the respondent/applicant.
We have heard both the counsel and carefully considered their arguments. As the parties in all the rectification applications are same and the facts
are also same in all the miscellaneous petitions, a common order is being passed. Rule 10 of the Intellectual Property Appellate Board (Procedure)
Rules 2003 provides that the Respondent in the application for rectification has to file counter-statement along with the documents within a period of
two months from the date of receipt of the application. The counter-statement has been filed without documents in these cases and now these
miscellaneous petitions have been filed to take on record those documents. The reason for filing these documents at the belated stage is that there
were several other litigations between the same parties and it took time for the counsel to file the documents.. In our considered opinion, in the interest
of justice, the delay can be condoned and evidence can be taken on record affording an opportunity to the Petitioner/Respondent to file their reply
evidence as has been held by this Appellate Board in Prabhu Shanker Agarwall and Ors. v. Deputy Registrar of Trade Marks and others. ""As a
general rule, evidence upon what a party relies is not to be shut out. Courts have leaned in favour' of affording opportunity to a. party to give evidence
whenever justice of the case requires it. However, negligent or careless may have been the first omission and however late the proposed evidence,
courts have. allowed it to be taken on record, if it can be done without injustice to the other side*
On the above observation, we think it proper to take on record the evidence filed by the Petitioner/Respondent with a direction to the
Respondent/applicant to file their reply statement along with documents., if any, within four weeks from the date of receipt of the order. Accordingly,
on the above terms the miscellaneous petition Nos. 84, 89 to 93 & 96/2009 are allowed.