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Miscellaneous Appeals Nos.30 of 1986, decided on 14th April, 1987.

‑‑‑S. 15‑‑Trade Marks Rules, 1963, R.76‑‑General Clauses Act (X of 1897), S. 3(35)‑‑Extension in time for filing counter‑statement‑‑Word "month"‑‑Definition‑‑Expression "month" used in R.76, Trade Marks Rules, held, would mean calendar month irrespective of fact whether the month consists of 31 days or 28 days‑‑Fifth extension in time for filing counter‑statement granted by Registrar upto 9‑2‑1986‑‑Sixth extension of time, held, could not be granted to a date beyond 9‑3‑1986.

A I R 1952 Orissa 279 and 2q Mad. 75; Black's Law Dictionary and Iyer's Law Laxicon ref.

29 Mad. 75 distinguished.

‑‑‑Ss. 15(3) & 76‑‑Trade Marks Rules, 1963, Rr. 32 & 76‑‑Filing of counter‑statement‑‑Maximum period of six months for which time for filing counter‑statement could be extended by Registrar expiring on 9‑2‑1986‑‑Failure of respondent to file counter‑statement within statutory period would entail consequences as spelt out in S. 15(3) of Act, viz. his application for registration would be deemed to have been abandoned and dispute between parties would stand disposed of and concluded‑‑Such failure by operation of law created a vested right in favour of other party‑‑Decision or order of Registrar affecting a vested right of party could not be considered to be of such interlocutory nature against which no appeal would lie‑‑Order of Registrar extending time beyond 9‑3‑1986, held, was illegal and without jurisdiction‑‑Appeal allowed.

P L D 1965 S C 292 and A I R 1977 Delhi 93 cited and examined.

Syed Shaukat Ali for Appellant.

Khalil Kazilbash for Respondents.

Date of hearing: 8th April, 1987.

These two miscellaneous appeals have been filed against the order of the learned Registrar Trade Marks dated 8‑5‑1986 whereby he allowed the respondent to file counter‑statement in Opposition Cases Nos.113 and 116 of 1985. As the appeals are against one order and the parties as well issues of fact and law involve are same I propose to dispose both the appeals by single judgment.

The brief facts are that the appellant had filed opposition to the two applications of the respondent for registration of his trade marks. The notice of this opposition was served by the Registrar upon the respondent by his letters dated 5‑8‑1985. The respondent instead of filing the counter‑statement continued to file applications for extension of time and the learned Registrar granted extension of time as follows:‑--

"1st Upto 9‑10‑1985 for filing counter

statement + documents.

2nd " 9‑11‑1985 ‑do

3rd " 9‑12‑1985 ‑do

4th " 9‑1‑1986 ‑do

5th " 9‑2‑1986 ‑do‑

The dates of notice and applications for extension of time are same in both the matters.

The counter‑statement in both the matters was filed by the respondent on 11‑3‑1986 alongwith the application of extension of time. The appellant opposed the admission of the counter‑statement on the ground that it was time‑barred.

The main contention of the learned counsel for the appellant before the learned Registrar was, that under rule 76 of the Trade‑Marks Rules, the extension granted shall not exceed a period of more than one month at one time. As the last extension granted was upto 9‑2‑1986, the period of further extension could not extend beyond 9‑3‑1986.

However, the learned Registrar relying upon A I R 1952 Orissa 279 and 29 Madras 75 held, that the word 'month' used in Rule 76 meant a month of 30 days and not of 28 days which the month of February, 1986 consisted of. In the alternative it is argued by Mr. Shaukat Ali learned counsel for the appellant, that if the month is to be counted to comprise of 30 days then the period of six months which is fixed as maximum period of extension under Rule 76 would comprise of 180 days only and if these 180 days are counted from the date the first extension was granted, would expire on 10‑3‑1986 and even then the counter statement filed by respondent would be barred by limitation as it has been filed after 181 days.

The appreciate the point involved in these appeals it will be advantageous to reproduce Rule 76 of the Revised Trade Marks Rules which reads as under:‑----

"76. Extension of Time.‑‑If in any particular case the Registrar is satisfied that the circumstances are such as to justify an extension of time for doing any act or taking any proceedings under these rules, not being a time expressly provided in the Act or prescribed by rule 55 or 59, he may extend the time upon such notice to other party, if necessary, and upon such terms as he may direct, and extension may be granted though the time for doing the act or taking the proceeding has already expired. An extension granted under this rule shall not exceed a period of more than one month at a time, provided that the total period of such extensions shall not exceed six months against each statutory period prescribed. An application for extension of time shall be made in Form TM‑55, on payment of the prescribed fee. "

It will be seen that under this rule the Registrar has got powers to extend time with two limitations; firstly that he cannot grant extension exceeding a period of one month at a time and secondly that the total period of such extensions shall not exceed six months.

It is, therefore, to be seen whether the word 'month' used in this rule refers to calendar month or not. Some of the calendar months comprise of 31 days, others of 30 days. One month in the year which is February comprises of 28 days, except in leap year when it will consist of 29 days. If month is interpreted to be the calendar month, this interpretation would be advantageous where month comprises of 31 days and it will be comparatively disadvantageous when the month comprises of 30 days or 28 days. It is contended that this could not be the intention of the rule‑making authority. In this connection, I may refer to the two cases relied upon by the learned Registrar. In the case reported in 29 Madras 75 the period of appeal under section 40 of the Rent Recovery Act of 1885 was one month. The learned Judges reading this section with the provisions of section 51, which provided the summary suit under the Act must be presented within 30 days, held that the word 'month' in section 40 was intended to be equivalent to 30 days. However, this question has again been discussed in A I R 1952 Orissa 279. The question in that case was when commencing day of the limitation was not the first of month, whether the computation of 'month' would be 30 or 31 days. In this case the month was considered to be calendar month from the day the order was passed and to the correspondent date of the next month. The month in that case was of October, which is of 31 days. In Black's Law Dictionary 'month' is defined as under:‑--

"Word month unless otherwise defined means calendar month as time from any day of any month to the corresponding day, if any, if not any, to the last day of next month."

Reference may be made to lyre's Law Lexicon describing term month as under:‑--

"The term 'month' whether employed in modern statutes or contracts, and not appearing to have been used in a different sense, denotes a period terminating with the day of the succeeding month numerically corresponding to the day of its beginning, less one. If there be no corresponding day of the succeeding month, it terminates with the last day thereof."

It may be pointed that section 3(35) of General Clauses Act provides that expression 'month' shall mean a month reckoned according to the British calendar.

The above discussion leads to the conclusion that ordinarily where expression 'month' is used and the period does not commence from first of month, the month will expire on corresponding date of next month. The first five extensions given by the learned Registrar appear to comply with this principle. However, the last extension which was to run from 9‑12‑1986 was extended by the learned Registrar beyond the corresponding date of next month viz. 9‑3‑1986 to 11‑3‑1987 considering the 'month' to mean 30 days. Word 'month' used in this rule will have to be considered in view of the definition of month in General Clauses Act and would be taken as calendar month. The Madras case is distinguishable because in that case the period for filing of summary suit under section 51 was 30 days and, therefore, it was held that period of appeal which was fixed as one month under section 40 should also be considered to be 30 days. In the Orissa case, however, the principle accepted was that period of one month was counted from the date the order was passed to the corresponding date of the next month, excluding the day, when the order was passed. No doubt adoption of this principle may cause hardships as pointed above, but it has one advantage, that the period can be calculated instantaneously. If we interpret the 'month' to mean strictly 30 days then even in the present case, some extensions have been given for 31 days which would not be warranted by provisions of Rule 76 under this interpretation. For instance extension number two after 9‑10‑1985 to 9‑11‑1985 was for 31 days and so also the third and fourth extensions after 9‑12‑1985 to 9‑1‑1986 and after 9‑1‑1986 to 9‑2‑1986 as the months of October, December and January are of 31 days. Therefore, in my opinion the expression 'month' used in the rule would mean the calendar month irrespective of the fact, whether the month consists of 31 days or 28 days. The sixth extension of time, therefore, could not have been granted by the learned Registrar to a date beyond 9‑3‑1986.

The learned counsel for the respondent relied upon P L D 1965 S C 292. In that case it was contended that objections had not been filed within the time prescribed by the rules. This objection was not accepted by their Lordships because the appellant did not protest before the Registrar against the filing of belated objection but in fact waived this delay by filing his counter‑affidavit within the time prescribed under rule 32 and in the opinion of their Lordships this amounted to submission to jurisdiction. It was further contended in that case, teat Registrar had no power to extend the time for doing an act prescribed by statute and even if he had such power, he could have extended time by following the procedure provided under that rule, that is to say by express order made in that behalf. It was observed by their Lordships as under:‑--

"Section 84 of the Trade Marks Act expressly authorises the Central Government to make rules for prescribing the times or periods required by the Act to be prescribed and section 15 merely says that notice of objection must be filed within the time prescribed. This necessarily means prescribed by the rules. Rules 30 to 35 prescribe the time within which the steps therein specified should be taken. These rules are, therefore, in no way ultra vires. The time so prescribed could also be extended in exercise of the power given by Rule 76. There is, furthermore, nothing in the said rule 76 to include that that an express order is necessary for extending the time. The mere fact, therefore, that the opposition was admitted after the lapse of the prescribed time and served upon the applicant by the Registrar himself indicates that the Registrar must have condoned the delay."

It is pointed by the learned counsel for the appellant that this case pertains to a period before Rule 76 was amended whereby maximum period of six months for which extension can be granted has been fixed whereas there was no such maximum period fixed prior to amendment of rule 76 vide S.R.O. dated 11‑6‑1977, which was to take effect from 1‑7‑1977. This period of six months according to the appellant expired on 9‑3‑1986 and the learned Registrar had no power to extend the time beyond this date.

The learned counsel further argued that even if this order is considered to be beyond the jurisdiction of the Registrar still it is not appealable as it is interlocutory order. In support he relied upon AIR 1977 Delhi 93 where it is held by a learned Single Judge:

"The object of section 109(2) of the Act is to give a right of appeal to a party aggrieved by some order which affects his right or liability. The words 'from any order or decision of the Registrar under this Act' though very wide do not include interlocutory orders, which are merely procedural or processual and do not affect the rights and liabilities of the parties. The legislature could not have intended that the parties should be harassed with endless expense and delay by appeals from such procedural orders. It is open to a party to set forth the error, defect or irregularity, if any, in such an order as a ground of objection in his appeal from the final order in the main proceeding."

It may be pointed that section 109(2) of the Trade Marks and Merchandise Act of India is equivalent to section 76 of the Trade Marks Act, 1940. However, the learned counsel has not produced the rules under the Indian Act to show if any maximum time for granting extension is fixed under these rules.

This maximum time has been fixed under the statutory rules which also have got the force of law and are binding.

Section 15 of Trade Marks Act provides that every application for registration shall be advertised.

Subsection (2) provides procedure for filing notice of opposition. Subsection (3) which is relevant is reproduced as under:‑--

"The Registrar shall serve in the prescribed manner a copy of the notice on the applicant, and within the prescribed time the applicant shall send to the Registrar, in the prescribed manner, a counter‑statement of the grounds on which he relies for his application, and, if he does not do so, he shall be deemed to have abandoned his application."

The period of filing counter‑statement under section 15(3) is prescribed under Rule 32 to be one month from the receipt of notice, This time can be extended by the Registrar under Rule 76 for a maximum period of six months which as already pointed expired on 9‑2‑1986. The failure of respondent to file counter‑statement within the," statutory period would entail consequences as spelt out in subsection (3) viz. their application for registration would be deemed to be abandoned. In other words the dispute between the parties would stand disposed of and concluded. This consequence for failure to file counter statement in time by operation of law creates a vested right in favour of the other party. A decision or order of the Registrar affecting a vested right of party cannot be considered to be of such interlocutory nature against which no appeal would lie. I, therefore, hold that the order of the learned Registrar extending the time beyond 9‑3‑1986 was illegal and without jurisdiction and, therefore, allow the appeal. The parties under the circumstances of the case are directed to bear their own costs.

The appeal was disposed of by short order on 12‑4‑1987. Above are the reasons in support of said order.

S.Q/H‑10/K Appeal allowed.

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