In the case of Sachdeva & Sons Industries Pvt. Ltd v Deputy Registrar of Trademarks, a miscellaneous petition was filed by the Respondent No.2/Petitioner, under Order 47 Rule 7(1) of the Civil Procedure Code(CPC) read with Section 161 of the CPC, seeking for dismissal of the appeal (filed by Sachdeva & Sons Industries Pvt. Ltd [appellant/respondent]).
The Respondent/Petitioner filed the said miscellaneous petition on the following grounds:
- that the appeal is not maintainable either in law or on the facts of the case, as, the well settled proposition of law is that the order rejecting the review petition is not appealable.
- that the opposition proceedings appealed against was by M/s Sachdeva and Sons, whereas, the appeal had been filed by M/s Sachdeva and Sons Industries Pvt. Ltd.
The appellant/respondent in their reply stated that the miscellaneous petition was baseless and wrong and that the provisions of Order 47 Rule 7(1) of the CPC was not operative in this case.
The Circuit Bench Sitting at Delhi of the Intellectual Property Appellate Board, Chennai, began, first with the ground as to whether an appeal is maintainable as against an order in the Review Petition. It was pointed out that the order passed in a review petition is not appealable as per the provisions of Order 47 Rule 7(1) of the CPC. In the present matter before the Board, it was stated that the provisions of the Trademarks Act were to be taken into consideration for deciding the issue. The relevant provisions of sub-section (1) of Section 91 is as follows:
"91. Appeals to Appellate Board- (A) Any person aggrieved by an order or decision of the Registrar under This Act, or the rules made thereunder may prefer an appeal to the Appellate Board within three months from the date on which the order or decision sought to be appealed against is communicated to such person preferring appeal.
The Board opined that on a plain reading of the above-mentioned provision, it was clear that an appeal can be preferred by any person aggrieved by an order or decision of the Registrar within three months from the date on which the order was communicated. Thus, based on the same, any order or decision is appealable and thus the present appeal was maintainable. The Board further opined that even though it was not bound by the provisions of the CPC, however in the interest of natural justice and as per the provisions of the Act, it was of the opinion that the appeal was maintainable.
With regard to the second issue, i.e. the mis-match in the cause title, the Board was of the opinion that this was an issue which should have been raised by the Registry of the Board at the time of the numbering of the appeal and in the present case it had not been done by the Registry. In such a circumstance therefore, the Board stated, that the litigant should not be penalized for no fault on their part. Thus, in this light, the respondent/appellant was directed to file necessary miscellaneous petition with the supporting documents, if any, for the mis-match of the cause title within a period of three weeks form the receipt of this particular order. Accordingly, the present miscellaneous petition was dismissed.
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