Dr. M. K. Sharma, J:

( 1 ) THIS order would dispose of the petition filed by the petitioner against the order dated 21. 12. 1998 passed by the Assistant Registrar of Trade Marks. By the said order learned Assistant Registrar dismissed the interlocutory petition filed by the petitioners seeking to cross-examine Mr. R. C. Jain, Mr. Bhanwar Lal Baid and Mr. D. M. Biswas.

( 2 ) A label mark consisting of the letter `tt in a circle device was sought for registration in class 6 for the goods steel pipes and tubes by the petitioners. the aforesaid application was advertised before acceptance. Subsequent thereto the respondent herein filed a notice of opposition objecting to the registration of the impugned mark. The petitioners filed their counter statement and thereafter the respondents filed their evidence under Rule 53. The petitioners were called upon to file their evidence under Rule 54 by a letter dated 13. 8. 1996. The petitioners sought for extension of time upto 15. 6. 1997 filing their evidence and thereafter filed the interlocutory petition on 21. 8. 1997 seeking to cross-examine the witnesses who had filed their evidence by way of affidavits on behalf of the respondents. It is however, to be mentioned herein that the petitioners did not file any evidence as envisaged under Rule 54 of the Rules. The aforesaid interim application was taken up for consideration and the Assistant Registrar of Trade Marks disposed of the said application rejecting the prayer holding that the cross-examination of a person who has filed an affidavit is permissible only in rare cases and cannot be permitted as a rule and that since the petitioners have failed to establish the reasons and circumstances requiring to cross-examine the deponents the said request of the petitioners for cross-examination of the three above named persons cannot be granted. Being aggrieved by the said order the present petition was filed in this Court.

( 3 ) IT was submitted by the counsel appearing for the petitioners that because of the denial of the opportunity to cross-examine the witnesses whose affidavits by way of evidence have been filed by the respondents the petitioners have been denied the right to test the genuineness and veracity of the contents of the depositions which could only be done by way of cross-examination. He further submitted that the affidavits filed by the witnesses of the respondents are not reliable and, therefore, there is a necessity to cross-examine them. Counsel appearing for the respondents however, submitted that in the application filed by the petitioners seeking to cross-examine the witnesses, no sound and cogent reasons have been given for allowing opportunity to cross-examine and that on the basis of a bald allegation made in the application that the affidavits of the three witnesses are not reliable no opportunity could be given to the petitioners to cross-examine the witnesses, for filing of affidavit by way of evidence is the general rule and opportunity of cross-examination is an exception.

( 4 ) IN the light of the aforesaid submissions I have perused the record placed before me and in the light of the aforesaid record I propose to dispose of the question which arises before me for consideration. Mainly two questions arise for my consideration in the present appeal filed by the petitioners -

(1) Whether a party has a right to cross-examine the witnesses whose evidence is adduced by the other party by filing affidavits under the provisions of the Trade and Merchandise Marks Act?

(2) Whether in the instant case the request of the petitioners for cross-examination of the three deponents who filed their affidavits by way of evidence was justified?

( 5 ) REFERENCE may be made to the provisions of Section 99 of the Act wherein it is provided that in any proceedings under the provisions of the Trade and Merchandise Marks Act before the Registrar evidence shall be given by affidavits. However, the Registrar is empowered in an appropriate

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