Tarlochan Singh vs Prern Flour Mills And Ors

S. Usha, Technical Member

This Miscellaneous Petition is filed by the Respondent No. 1/registered proprietor seeking permission of this Appellate Board to take on record their

evidence in support of counter statement. The Rectification Petition was filed before the Hon'ble High Court of Delhi and transferred to this Appellate

Board pursuant to Section 100 of the Trade Marks Act, 1999.

Subsequent to the transfer of the matter, it was posted on 26.04.2007 for hearing for the first time. Both tin counsel requested for time to file their

affidavit of evidence alongwith documents. This Board was pleased to grant time of 3 months each to file their evidence and directed the Registry of

this Appellate Board to post the matter in November, 2007. The matter was taken up in February, 2008 and the applicant had taken out an application

to condone the delay in filing the documents and to take the same on record. The said application in M.P. No. 148/2007 was allowed on 15. 02.2008

and the evidence was taken on record and directions were given to the Respondent No. 1 to file their evidence within 2 months from the date of

receipt of order and reply affidavit, if any, on behalf of the applicant and the documents, if any, be filed within four weeks thereafter.

3 . The Respondent No. 1 ought to have filed the affidavit of evidence alongwith documents by April, 2008, whereas the same has been filed in

August, 2008, with a delay of 4 months. We find no reasons/explanations given by the Respondent No. 1 for the delay in the pleadings except for a

bald statement that the Respondent No. 1 had undergone ""Coronary Angiography"" and as such could not attend to his business and could not instruct

the counsel to prepare the affidavit. The counsel for Respondent No. 1 cited various judgments.

4 . The Learned Counsel for the applicant vehemently opposed the request for extension of time and submitted that no valid reasons were given for

the delay. He also pointed out that the doctor's certificate was not filed alongwith the application and is produced only at the time of hearing.

This Appellate Board has powers to extend time for filing the documents as per the rules. In fact, this Appellate Board had granted time to file the

documents by order dated 15.02.2008. The only issue is to condone the delay. Though the delay has not been reasonably explained, we are of the

view, in the interest of justice, the delay has to be condoned and evidence be taken on record. It is worth mentioning the observation made by this

Appellate Board in a judgment reported in 2008 (36) PTC 627, IPAB Prabha Shankar Agarwal and Ors. v. Deputy Registrar of Trade Marks and

Ors. ""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. There can be no injustice, it was held by

the Calcutta High Court in Rupendra Deb Rajkut v. Ashrumati Debi and Ors. AIR 1951 CAL 286, if the other sid can be compensated by costs. The

reason for the same being that a procedure of the Court is to aid administration of justice and not to hamper it. We are of the view that no prejudice

would be caused to the Respondent No. 1 if they too are afforded an opportunity to file documents in rebuttal.

6 . Applying these observations, we don't think it would be proper to shut down evidence by not extending the time to enable the evidence to be taken

on record. As has been observed by the Calcutta High Court, we are of the opinion that cost could be awarded. We, therefore, direct the Respondent

No. 1 to pay a sum of Rs. 1000/-towards cost within two weeks from the date of receipt of this order and send the acknowledgement in proof of the

same to the Registry of this Appellate Board. The applicant is directed to file his reply affidavit and the documents, if any, within four weeks

thereafter. Accordingly, the Miscellaneous Petition 177/2008 is allowed on the above terms. The registry is directed to post the matter immediately

after the pleadings are completed.