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Judgment
 S. Usha, J
Appeal arises out of the order dated 24.02.2009 passed by the Deputy Registrar of Trade Marks dismissing the Interlocutory Petition to take on
record the evidence as per Rule 50/53. The first respondent herein filed an application for registration of the trade mark '""CHIKU MIKU"" under
No.959879 in class-25. The appellant herein opposed the registration by filing the notice of opposition. The first respondent filed their counter
statement. The Registry invited the appellant to file their evidence in support of opposition under Rule 50. The appellant, in the reply, stated that they
rely on the contents of the notice of opposition as evidence under Rule 50 and they stated that the matter may be proceeded with in accordance with
law. Thereafter, the Registry invited the applicant/first respondent to file their evidence. The 1st respondent filed their evidence. On receipt of the
evidence in support of application on 13.06.2005, the appellant informed the Registrar that they reserve their right to comment on the evidence filed by
the first respondent at the time of hearing. They also requested the Registrar to fix the matter for hearing. The 1st hearing was fixed on 20.02.2006.
After several adjournments, the matter was fixed for hearing on 8. 01.2008. On 07.01.2008, the appellant herein filed an Interlocutory Petition to take
on record the evidence in support of opposition under Rule 50 or 53.
The Registrar heard the Interlocutory Petition and held that Rule 53 cannot come into operation in the absence of compliance of Rules 50 and 51. In
view of the fact that the matter has already proceeded to Rule 56 stage, it cannot be taken back to Rule 50/53 stage and therefore, the Interlocutory
Petition was dismissed and the main matter was to be heard and decided in accordance with law.
We shall first deal with the Rules relating to the evidence, viz., Rule 50(1) of the Trade Marks Rules, 2002.
Evidence in support of opposition.-(1) Within two months from services on him of a copy of the counterstatement or within such further period not
exceeding one month in the aggregate thereafter as the Registrar may on request allow, the opponent shall either leave with the Registrar, such
evidence by way of affidavit as he may desire to adduce in support of his opposition or shall intimate to the Registrar and to the applicant in writing
that he does not desire to adduce evidence in support of his opposition but intends to rely on the facts stated in the notice of opposition. He shall deliver
to the applicant copies of any evidence that he leaves with the Registrar under this sub-rule and intimate the Registrar in writing of such delivery.
It is clear that evidence in support of opposition has to be filed within two months from the service of the counter statement. This two months' period
is extendable by the Registrar by only one month, if a request is made. The appellant shall either leave with the Registrar the evidence by way of
affidavit or he shall intimate to the Registrar and to the applicant in writing that he does not desire to file any evidence but intends to rely on the facts
stated in the notice of opposition.
The appellant herein had intimated to the Registrar of his intention to rely on the notice of opposition and that the matter may be proceeded with in
accordance with law. Therefore, it is clear that the appellant is relying only on the notice of opposition and has no evidence. The Registrar thereafter
proceeded to the next stage calling upon the 1st respondent/applicant to file their evidence in support of the application under Rule 51.
5 . The Registrar called upon the opponent i.e., the appellant to file their reply evidence under Rule 52. The appellant in reply stated that they reserve
their right to comment on the evidence at the time of hearing and requested the Registrar to fix up the matter for hearing.
6 . The appellant, who has intimated the Registrar of their intention of not filing evidence and relying on the contents of notice of opposition, cannot
now be allowed to file evidence.
7 . We have perused the Interlocutory Petition and the affidavit of evidence. The prayer in the Interlocutory Petition is to take on record the evidence
under Rule 50 or
The affidavit of evidence is in the form of reply to the affidavit of evidence filed in support of the application under Rule 51. The appellant
therefore intends to go back to the stage of Rule 50 or intends that the evidence may be treated as further evidence under Rule 53. It is also to be
noted that the Interlocutory Petition has been filed after a lapse of three years. The evidence under Rule 50 cannot be allowed after such long delay.
The evidence under Rule 53 can also not be allowed as this will come into operation only after evidence under Rule 50/52 is complied with. We are
therefore of the view that there is nothing that needs our interference in the impugned order. Accordingly, the appeal is dismissed with costs of
Rs.2000/-. We hereby direct the Registrar to hear and decide the matter in accordance with law.