Tarlochan Singh And Ors vs Prem Flour Mills And Ors

S. Usha, J

The miscellaneous petition is filed by the applicant in the rectification application seeking permission from this Appellate Board to cross-examine the

respondent Mr. Prem Sood and also for a direction to the respondent to produce the original documents of the copies filed along with the affidavit.

This petition is filed on the main merits of the application. The petitioner has also stated that this Appellate Board has powers to allow cross-

examination as per the provisions of Section 92 of the Trade Marks Act, 1999. The respondent No. 1 filed their counter statement to the

miscellaneous petition and stated that the petition is devoid of any merits and has got to be dismissed. The miscellaneous petition has been filed after

long delay only to harass the respondent No. 1 and to take undue advantage of the delay. He, therefore, prayed that the main rectification application

itself be taken up for hearing and the miscellaneous petition be rejected.

We have heard both the counsel. The learned counsel for the petitioner contended that as per the provisions of the Act, this Appellate Board has

powers to allow cross-examination of the party. The counsel further submitted that the Appellate Board has powers as a civil court. The counsel also

pointed out to various discrepancies in the documents filed by the respondent No. 1 and stated in such case it was necessary for the respondent to be

cross- examined.

The counsel for the petitioner relied on various judgments in support of his case. The counsel mainly relied on the order of the High Court in a Writ

Petition No. (C) 7974/05 against the order of this Appellate Board, where there was a direction by the High Court to cross-examine the witness

rejecting this Board's order.

4 . The counsel for the respondent No. 1 contended that the petition was a belated one only to drag on the proceedings. The counsel pointed out to

rule 12 of the Intellectual Property Appellate Board (Procedure) Rules, 2003 and submitted that the respondents were prepared to produce the

originals as and when there was a direction from this Board. The counsel relied on various judgments in support of his case.

5 . We have carefully considered the arguments of both the counsel. This Appellate Board has been of the view that cross-examination of the parties

to prove the contents of the documents will only lead to waste of time. Section 92 of the Act provides that the Appellate Board shall not be bound by

the procedure laid down in the Civil Procedure Code, 1908, but shall be guided by the principles of natural justice and powers to regulate its own

procedures. What should be the scope of the cross-examination is for the decision of the Tribunal before which the cross-examination takes place.

In the instant case, the contention of the petitioner is that there are discrepancies in the documents and there is nothing on record to prove how the

respondents acquired the right to use the trade mark from their predecessor. The documents are also not clear as there are overwritings in the same.

The respondent has also undertaken to produce the originals of all the documents. When that be the case, based on the affidavit and evidence, the

petitioner may argue the application pointing out the discrepancies and there is no need to cross-examine the respondent. We are also of the opinion

that the witness even if cross-examined will only rely on the documents with him which will only delay the hearing of the matter.

7 . The judgment relied on by the petitioner allowing the petition for cross-examination and reversing this Appellate Board's order is not relevant to this

matter. In that matter, the rectification application was transferred to this Board, when there was already an order for cross-examination by the

Hon'ble High Court which was refused by this Board. We would quote the order of the Hon'ble High Court in W.P. (C) 7974/05:-

From the above narrative, it is evident that this Court had directed filing of affidavit and also recorded that the witnesses would be cross- examined.

By another order, the records sought by the present petitioner were directed to be summoned. The reasoning of the board, though facially attractive,

ignores the fact that it did not at any point of time, after receipt of records from the High Court, decide to initiate de novo proceedings. The logical

corollary, therefore, is that the previous proceedings continued to bind the parties; in the circumstances, the Board could not have concluded as it did in

this case that it exercised independent powers under Section 92, while rejecting the application.

8 . The object of the creation of the Appellate Board has been stated to be speedy disposal of the appeals and rectification applications when that be

so, by allowing cross-examination of the witness will only lead to delay in disposal of the matter. We, therefore, are of the view that cross-examination

is not a general rule, and is recognised as an exceptional procedure. The miscellaneous petition is partly dismissed. The prayer to direct the respondent

No. 1 to produce the originals is allowed. The respondent is, therefore, directed to produce the original documents relied on by him for inspection by

the petitioner on 02.02.2010 at 2.30 p.m. The main rectification application is posted on 03.02.2010.