- Honourable Judges: Ms.S.Usha, Vice-Chairman and Shri Syed Obaidur Rahaman, Technical Member
- Issue: Intellectual Property Appellate Board (Procedure) Rules, 2003 – Rule 10
- Date of Judgement: 16/12/2010
- Case No: M.P.No.130/2009 in ORA/128/2008/TM/DEL
- Counsel: For Respondent: Shri A.M.Saha, Advocate
Ms.S.Usha, Vice-Chairman, (At New Delhi)
1. This miscellaneous petition has been filed by the petitioner/ respondent in the original rectification petition seeking direction of this Board to take on record the documents filed in support of registration.
2. The grounds for filing these miscellaneous petitions are that there are several matters between the same parties before various forums and that it has taken time to scrutinize the documents. The delay is neither willful nor wanton but for the reasons stated above. The respondent/applicant will not be prejudiced in any manner if these miscellaneous petitions are allowed, but the petitioner will be seriously injured if this petition is not allowed.
3. The respondent/applicant have filed their counter-statement stating that the delay in filing the documents have not been explained and there is no sufficient cause given for the delay. The counsel during the course of arguments relied on judgments in support of his contention that delay cannot be condoned if sufficient cause is not given.
4. The matters were taken up for hearing in the Circuit Bench Sitting at Delhi on 20.09.2010. Learned counsel Shri A.M. Saha appeared for the petitioner/respondent. None appeared for the respondent/applicant.
5. We have heard both the counsel for the petitioner/respondent and carefully considered his arguments. Rule 10 of the Intellectual Property Appellate Board (Procedure) Rules 2003 provides that the respondent in the application for rectification has to file counter-statement along with the documents within a period of two months from the date of receipt of the application. The counter-statement has been filed without documents in this case and now this miscellaneous petition has been filed to take on record those documents. The reason for filing these documents at the belated stage is that there were several other litigations between the same parties and it took time for the counsel to file the documents. In our considered opinion, in the interest of justice, the delay can be condoned and evidence can be taken on record affording an opportunity to the respondent/applicant to file their reply evidence, if any, as has been held by this Appellate Board in Prabhu Shanker Agarwal and others Vs. Deputy Registrar of Trade Marks and others. “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.”
5. On the above observation, we think it proper to take on record the evidence filed by the petitioner/respondent with a direction to the respondent/applicant to file their reply statement along with documents., if any, within four weeks from the date of receipt of the order. Accordingly, on the above terms the miscellaneous petition No.130/2009 is allowed. No order as to costs.
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