Per Anoop V. Mohta, J.

. The present appeal filed by the appellants (Original Petitioners) against the judgment and order dated 5th July, 2002 passed in Miscellaneous Petition No. 42 of 1995, whereby, an order dated 19 December, 1994 of the Assistant Registrar of Trade Marks, by which the respondents have been permitted to register the trade mark "MAGNUM" in class 34 in respect of Cigarettes, bidis, safety matches, cigars, smokers and other articles as contemplated, on the application filed by the respondents under the Trade and Merchandise Marks Act, 1958 (for short, "the 1958 Act"), has been maintained and the Miscellaneous Petition filed by the Appellants was dismissed.

2. The relevant dates and events are as under.:-

3. The appellants are manufactures inter-alia of Tobacco and or Tobacco products including cigarettes.

4. On 23/12/1987, respondent No.1 filed an application for registration of Trade Mark "MAGNUM" which was proposed to be used in respect of cigarettes, bidies etc. as contemplated in clause 34 of the schedule to the Trade Mark rules.

5. On 01/03/1992, the application of respondent No.1 was advertised in Trade Mark Journal No. 1026. On 14/05/1992, the appellants filed their Notice of Opposition opposing the registration of Trade Mark. On 11/08/1992, respondent No.1 filed their counter claim. On 08/02/1993, the appellant filed their evidence in support of opposition.

6. On 19/12/1994, respondent no.2 by his order and judgment dismissed Notice of Opposition of the Appellants and allowed the application of respondent No.1.

7. On 20/04/1995, the appellants filed Misc. Petition No. 42 of 1995 in this Hon’ble Court challenging the order of respondent No.2 dated 19/12/1994.

8. On 02/08/1995, order passed in interim Petition No. 44 of 1995 inter-alia recording the assurance of counsel for respondent No.1 that respondent No.1 would not collect the certificate of registration during the pendency of main petition. Interim petition No. 44 of 1995 disposed of.

9. On 05/07/2002, the impugned order passed inter-alia dismissing Misc. Petition No. 42 of 1995 with no order as to cost. The counsel for respondent No.1 has given an assurance that respondent No.1 would not collect the certificate of Trade Mark for a period of 4 weeks.

10. On 16/08/2002, the appellants filed the present appeal.

11. The learned Senior Counsel Dr. Virendra Tulzapurkar submitted that the provisions of Trade Marks Act-1999 (T.M.Act-1999) are applicable and therefore, the appeal be decided accordingly, though the application was made under the 1958 Act. The commencement date of the T.M.Act-1999 is 15/09/2003. The present appeal has been pending since 16/08/2002.

12. Sub-Section (3) of Section 159 provides that the provisions of this Act shall apply to any application for registration of the trade mark pending at the commencement of the T.M. Act-1999 and to any proceedings consequent thereon and also to any registration granted in pursuance thereof.

13. Sub-Section 3 of Section 159 is reproduced as under. "The provisions of this Act shall apply to any application for registration of a trade mark pending at the commencement of this Act and to any proceedings consequent thereon and to any registration granted in pursuance thereof."

14. Another submission is about new and old Section 9 of the respective T.M.Acts. 15. Section 9 of the 1958 Act is reproduced as under:-

9. Requisites for registration in Parts A and B of the register-

1)A trade mark shall not be registered in Part A of the register unless it contains or consists of at least one of the following essential particulars, namely:-

a) the name of a company, individual or firm represented in a special or particular manner;

b) the signature of the applicant for registration or some predecessor in his business;