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Miscellaneous Appeals Nos. 29 to 35 of 1981, decided on 29th September, 1986.

(a) Trade Marks Rules, 1963------

----Rr. 30, 31, 32, 33 & 35 [as amended by Trade Marks (Amendment) Rules, 1977]-Trade mark-Procedure to oppose registration before and after amendment of Rules.

Under old rules 30 and 31 of Trade Marks Rules, 1963, a party wishing to oppose registration of trade mark advertised by an applicant for regis tration had to file notice of opposition stating only the grounds of opposi tion within two months of the advertisement. Similarly the applicant in reply to opposition notice was required to submit a counter-statement in accordance with old rule 32 within one month, either admitting or denying the facts mentioned in the opposition notice. No evidence was required to be filed either with the opposition notice or with the counter-statement, which was regulated under rules 33 to 35 of the Trade Marks Rules. By an amendment introduced in the Trade Marks Rules, 1953, in the year 1977 the period' provided under rule 30 was enhanced to 4 months from 2 months and the party wishing to oppose registration of a trade mark is now required under amended rule 31 to submit all the evidence relied by him in support of the opposition with the notice of opposition. Similarly the applicant when filing the counter statement in reply to opposition notice is also required to submit all the supporting evidence in accordance with amended rule 32 alongwith the counter-statement. Rules 32 to 35 which provided for leading of evidence in support of opposition and counter-statement and the rebuttal evidence by the party filing opposition notice stand omitted by the amend ment of 1977.

(b) Trade Marks Rules, 1963 -

Rr. 36 & 76-Applicability and scope of rules 36 and 76 of Trade Marks Rules-Rule 36 is independent of rule 76 and power vested in Tribunal under former rule, held, is neither circumscribed nor controlled by latter Rule.

Rule 36 of the Trade Marks Rules is independent of rule 76 and the power vested in the tribunal by virtue of this rule is neither circumscribed nor controlled by the said rule. Rule 76 deals with the power of registrar generally to grant extension of time to perform an act by a party for which time is either prescribed under the rules or for performance of which time is granted by the tribunal. The powers of tribunal under rule 76 of the Trade Marks Rules is in many respect comparable with the power of a civil Court under section 148 of the Code of Civil Procedure. How ever, the power conferred on the tribunal under rule 36 of the Trade Marks Rules, 1963, is of a special nature and is neither comparable nor has any nexus with the jurisdiction exercised by the tribunal under rule 76. The power available to the tribunal under rule (ibid) 36 is to be exercised in exceptional, cases to do complete justice between the parties and reservation of such powers for the tribunal is necessary to meet the ends of justice.

(c) Trade Marks Rules, 1963----

.---.- Rr. 31, 32 & 36--Registration of trade mark-Production of additional evidence-Power of Tribunal to allow-Tribunal while dealing with a case of trade marks, held, could allow leading of additional evidence in appropriate cases by a party who could not produce evidence earlier.

(d) Trade Marks Act (V of 1940)-

--- S. 76-Trade Marks Rules, 1963, R. 76-Appellate jurisdiction. exercise of-Where additional evidence was allowed to be produced under R. 36, Trade Mark Rules, no qualifications for exercise of such power having been prescribed, High Court in exercise of appellate jurisdiction declined to interfere.

S. Shaukat Ali for Appellant.

Chughtai M. Jamiluddin for Respondents.

Date of hearing : 29th September, 1986.

This order will govern the disposal of above-noted 7 Miscellaneous Appeals filed under section 76 of the Trade Marks Act, 1940 in which a common question of law has been agitated.

The appellant in all the above cases opposed registration of Trade Marks "Playboy" with a device of rabit head in respect of different articles produced by respondent No. 2 under different classes by filing opposition proceedings under section 15(2) of the Trade Marks Act, 1940. Alongwith the opposition the appellant produced all the evidence relied on by him in accordance with rule 31 of the Trade Marks Rules, 1963. Similarly in reply to the opposition notice respondent No. 2 submitted counter-state ment duly supported by documents. Thereafter, the Registrar directed the parties to file T. M. 7 for final hearing of the case on 18-3-1981. Both the parties submitted Form T. M. 7 showing their intention to attend the hearing on the aforesaid date personally. On 18-3-1981 the case was however, adjourned to 10-2-1982 and on the adjourned date of hearing instead of proceeding with the case the respondent No. 2 submitted additional evidence and prayed before respondent No. 1 that he may be allowed to rely on the affidavit dated 28-11-1981, with annexures in support of the application for registration of trade mark and the counter-statement. This prayer was opposed by the appellant who contended that the respon dent having availed sufficient opportunity for submitting evidence in support of the application and the counter-statement in accordance with rule 76, was no more entitled to any further opportunity to lead evidence in the case. Respondent No. 1 however, did not agree with the appellant and took the view that he had enough power under rule 36 of the Trade Marks Rules, 1963 to allow any party to lead further evidence in a fit case and for reasons stated in the impugned order allowed the prayer of respondent No. 2 to bring additional evidence on record in support of application and the counter-statement. Mr. Syed Shaukat Ali, the learned counsel for the appellant did not challenge the grant of prayer by the Registrar to allow respondent No. 2 to lead additional evidence in the case on merits but questioned the impugned order only on legal grounds. It is contended by the learned counsel that after deletion of rules 33 to 35 and amendments in rules 31 and 32 which now provide that all the suppor ting evidence is to be produced at the time of filing of opposition and the counter-statement respectively the power left with the tribunal under rule 36 to allow additional evidence is to be treated subject to the provision of rule 76 which provides that the tribunal cannot allow exten sion of time for doing an act by a party exceeding six months. It is accordingly contended that as in the present case the respondent No. 2 had already availed six months time by obtaining six extensions of time under rule 76 ibid for producing evidence in support of their application as well as counter-statement, the tribunal was left with no power under rule 36 to allow them any further time for leading additional evidence in the case.

Under old rules 30 and 31 of Trade Marks Rules, 1963 a party wishing to oppose registration of trade mark advertised by an applicant for registration had to file notice of opposition stating only the ground of opposition within two months of the advertisement. Similarly the applicant in reply to opposition notice was required to submit a counter-statement in accordance with old rule 32 within one month, either admitting or denying the facts mentioned in the opposition notice. No evidence was required to be filed either with the opposition notice or with the counter-statement, which was regulated under rules 33 to 35 of the Trade Marks Rules By an amendment introduced in the Trade Mark Rules, 1963, in the year 1977 the period provided under rule 30 was enhanced to 4 months from 2 months and the party wishing to oppose registration of a trade mark is now required under amended rule 31 to submit all the evidence relied by him in support of the opposition with the notice of opposition. Similarly the applicant when filing the counter statement in reply to opposition notice is also required to submit all the supporting evidence in accordance with amended rule 32 alongwith the counter-statement, Rules 32 to 35 which provided for leading of evidence in support of opposition and counter-statement and the rebuttal evidence be the party filing opposition notice stand omitted by the amendment of 1977. Learned counsel for the appellant contends that as a result of the above change in the procedure brought about by the amendment of 1977, the parties are now required to file all their evidence at the time of filing of opposition and the counter-statement and thereafter, no further opportunity could be given to them for leading evidence. With regard to power of registrar reserved in rule 36 of Trade Marks Rules, to allow the parties to lead further evidence, learned counsel contended that in view of omission of rule 35 which allowed opportunity to the party filing opposition notice to lead evidence in rebuttal, the power of Registrar to allow additional evidence should be treated as limited to only those cases where power of Registrar under rule 76 was not exhausted. I have carefully examined the above contentions of the learned counsel and after going through they relevant rules I am of the view that rule 36 of the Trade Marks Rules is independent of rule 76 ibid and the power vested in the tribunal by virtue of this rule is neither circumscribed nor controlled by the said rule. Rule 76 in my view deals with the power of registrar generally to grant extension of time to perform an act by a party for which time is either prescribed under the rules or for performance of which time is granted by the tribunal. The powers of tribunal under rule 76 of the Trade Marks Rules is in many respect comparable with the power of a civil Court) under section 148 of the Code of Civil Procedure. However, the power) conferred on the tribunal under rule 36 of the Trade Marks Rules, 1963,, is of a special nature and is neither comparable nor has any nexus with the jurisdiction exercised by the tribunal under rule 76 ibid. The power available to the tribunal under rule 36 ibid is to be exercised in exceptional cases to do complete justice between the parties and reservation of such powers for the tribunal is necessary to meet the ends of justice. Mr. Shaukat Ali, the learned counsel for the appellant contended that as a result of omission of rule 35 a party filing the opposition now has no opportunity to lead evidence in rebuttal which was available to him under the omitted rule 35. It is true that the omitted rule 35 specifically allowed the party filing opposition proceedings an opportunity to file evidence in rebuttal after filing of the evidence by the applicant under omitted rule 34 ibid but in spite of omission of rule 35, there is still ample power available with the tribunal by virtue of rule 36 to allow the party filing opposition, if necessary, opportunity to lead evidence in rebuttal in appropriate cases. After hearing the learned counsel for the parties I am in doubt that the tribunal in appropriate cases has ample power under rule 36 of Trade Marks Rules to allow leading of additional evidence by party who may not have produced the evidence under rules 31 and 32 ibid. As the prayer of respondent No. 2 for allowing him to lead additional evidence in the case was allowed by respondent No. 1 after the latter was satisfied as to the genuineness of the cause, no exception could be taken to the exercise bf power by respondent No. 1 under rule 36 ibid in spite of the fact that respondent No. 2 had not produced this evidence although six extensions of time were granted to them by the Registrar under rule 7 ibid. The question of payment of Rs. 30 for every extension of time G granted by the Registrar under rule 76 was also not relevant in the case as the power was exercised by the respondent No. 1 under rule 36 which made no such qualification for exercise of power. No other point was raised. No case for interference is made out. The appeals are accordingly dismissed but there will be no order as to costs.