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2011 Supreme(SC) 775
SUPREME COURT OF INDIA
DALVEER BHANDARI & GYAN SUDHA MISRA, JJ.
POLYDRUG LABORATROIES P. LTD. Appellant(s)
VERSUS
CONTROLLER OF PATENTS & ORS. Respondent(s)
Civil Appeal No. 7326 of 2011 (Arising out of SLP(C) No.9397 of 2011)-
Decided on 16-08-2011.
Headnote:
Patent Rules, 2003 – Rule 138 – Extension of time for filing evidence – Appellant filing evidence but Assistant Controller of Patents and Designs not considering Rule 138 – Matter remitted back to Assistant Controller for fresh adjudication. (Para 6)
Facts of the case:
Rule 138 provides for extension of time for filing evidence. Appellant is aggrieved because the Asstt. Controller did not consider the said rule.
Result:
Matter remitted back.
ORDER
1. Leave granted.
2. We have heard the learned counsel for the parties.
3. Learned counsel for the appellant has drawn our attention to Rule 138 of the Patent Rules, 2003, which reads as under:
"138. Power to extend time prescribed.-
(1) Save as otherwise provided in the rules 24B, sub-rule (4) of rule 55 and sub-rule (1A) of rule 80, the time prescribed by these rules for doing of any act or the taking of any proceeding there under may be extended by the Controller for a period of one month, if he thinks it fit to do so and upon such terms as he may direct.
(2) Any request for extension of time made under these rules shall be made before the expiry of prescribed period."
4. According to a plain reading of Rule 138, it is clear that the Controller may extend the time for filing evidence for a period of one month. Learned counsel for the appellant submits that the Assistant Controller of Patents and Designs has not considered the said Rule 138 of the Patent Rules, 2003 in its proper perspective. He further submits that he has filed the evidence but the same has not been taken on record. We are of the considered view that according to Rule 138, the Controller has the power to extend the time for a period of one month.
5. Mr. Grover, learned counsel appearing on behalf of respondent No.4 submits that the evidence, which has already been filed, may be taken on record subject to the objections available to him under the rules.
6. In the facts and circumstances of the case, we deem it appropriate to set aside impugned judgment and remit the matter to the Assistant Controller for adjudication afresh in accordance with law. The appeal is accordingly disposed of.
