The Registrar of Trade Marks has the discretion to award costs under Rule 81 of the Trade Marks Rules, 1942, and his discretion will not be interfered with by the High Court.

1. This is an appeal against a decision of the Registrar of Trade Marks, Bombay. It is necessary at the outset to set out the history of this litigation as it has a direct hearing on some of the questions that have been canvassed before me on this appeal.

2. The petitioner applied for registration of his trade mark known as "HAUTIN" in respect of Bidis, cigars, scented tobacco and tobacco throughout India on 21-8-1942. The application was advertised on 1-10-1945 and the respondent filed his notice of opposition on 23-3-1946. Against this notice of opposition the petitioner submitted a counter-statement on 12-7-1946. Thereafter on 5-12-1947 the respondent filed an affidavit of the evidence in support of opposition in which a document called a Panchnama dated 19-10-1937 was referred to.

It was alleged that under the said panchnama the petitioner had admitted the right of the opponents father to the trade mark "HAUTIN" and had been permitted to use the trade mark in Trichinopoly only until such time as the petitioners father may choose to object to it; but the document was not filed with the Registrar along with the affidavit.

At the hearing before the Registrar a document bearing date 7-11-1937 and not 19-10-1937 was produced purporting to have been signed by the petitioner, the petitioner denied his signature and he desired to lead evidence to show that the signature was not his. - The Registrar refused to grant any adjournment to the petitioner, proceeded with the matter and passed an order basing it mainly on this document of 7-11-1937 granting registration to the petitioner in Trichinopoly and Tanjore only and rejecting it with regard to the rest of India.

Against this decision of the Registrar an appeal was filed which was heard by Shah J. My learned brother held that the Registrar was not justified in refusing an adjournment. He therefore set aside the order of the Registrar and directed him to hear the petition according to law and dispose of it. There were also cross-objections filed by the respondent which the learned Judge held were not maintainable. Against this decision of the learned Judge an appeal was filed to a Division Bench of this Court. The appeal Court took the view that the learned Judge was in error when he held that the cross-objections were not maintainable, and the appeal Court remanded

"the whole matter to the Registrar with directions that he should consider the application of the respondent de novo, hear all the evidence which is to be led both on the question of authenticity of the panchnama and also on the question of the proprietorship of the mark and also with regard to the user of the mark, and, after considering toe evidence, decide whether the respondent is entitled to registration of the mark, and, if so, whether to an unlimited extent or with limitations."

On the question of costs the appeal Court directed that both the costs of the petition and the costs of the cross-objections will abide the result of the application". Thereafter the matter went back to the Registrar who re-heard the matter and granted registration to the petitioner for Trichinopoly only and rejected his application for registration for the rest of India. He directed the petitioner to pay Rs. 3,000/- by way of costs to the opponent.

Against this decision of the Registrar of Trade Marks the petitioner tamo in appeal, and I heard and disposed of the appeal in the first instance on 1-7-1954. then took the view that it was not competent to the Registrar to take into account the so-called panchnama and I therefore set aside the decision of the Registrar of Trade Marks and remanded the case back to the Registrar with a direction to ignore the panchnama and to consider the matter afresh.

In making the order of remand I also pointed out that the Trade Marks Registrar had not determined whether the petitioner was the proprietor of the trade mark, and therefore he should proceed to determine it before coming to a final conclusion o