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High Court Of Delhi
HASTIMAL JAIN TRADING AS OSWAL INDUSTRIES - Appellant
Versus
REGISTRAR OF TRADE MARKS - Respondent
Civil Miscellaneous (Main) 525 of 1994
Decided On : 12/08/1999
Held:
The determination of the questions raised would depend on whether Rule 53 (2) can be said to be mandatory or merely directory. Mere use of the word "shall" is not sufficient to treat the Rule as mandatory. Even though the word "shall" prima facie indicates that it is mandatory, still the Court must ascertain the real intention of the Legislature by looking to the Statute as a whole. It must also be remembered that a legal fiction cannot be stretched beyond the purpose for which it was enacted. As seen above the legal fiction is not absolute. It is limited by the words "unless" the "Registrar otherwise directs". In our view it is significant that wherever the Legislature intended to prescribe a fixed time, which could not be extended, it has specifically so done. The necessary implication of this is that in all other cases the time was not to be fixed but one which would be within the power of the Registrar to extend. Undoubtedly the intention of the Legislature was to minimise delays. For that fixed time is laid down in the Statute itself. However a reading of Section 21 itself shows that for procedural matters like filing evidence the Legislature was not laying down a fixed time in the Statute. This view is supported by a reading of Section 101 and Rule 106. Section 101 indicates that the only circumstance under which time cannot be extended by the Registrar is where a time has been expressly provided in the Act. Similarly, under Rules 106 the time can be extended by the Registrar, in all cases except for the four, which have been mentioned in paragraph 14 above. It is all the more significant that Rule 53 (2) and Rule 54 have not been included in Rule 106. To interpret it otherwise would be to add in Rule 106 the words "or Rue 53". The Legislature has purposely omitted to do so. It is not possible to accept submission that Rule 53 gets incorporated in Section 21. If the Legislature wanted to provide a fixed term of two months in Section 21 (4) as they have done in Section 21 (1) and (2), they would have done so. This interpretation is also borne out by the fact that the deeming provision, in Rule 53 (2), comes into play only if the Registrar does not otherwise directs. The fact that the legal fiction is subject to the direction of the Registrar also shows that it is not absolute but is being controlled by discretion of Registrar. In our view Section 101 and Rule 106 permit the Registrar to extend time, even though the time has expired. To hold otherwise would be to negate the words to that effect used both in Section 101 as well as Rule 106.
( 1 ) ALL these three matters can be disposed of by this common Judgement. In all these matters the questions referred to the Full Bench are :-
" (A) Whether Rule 53 (2) of the Trade and Merchandise Marks Rules, 1959 is directory or mandatory?
(B) Whether the Registrar s power to extend the time for filing evidence in support of the opposition stands extinguished if an application for extension of time is not filed or extension is not granted before the expiry of the period of two months prescribed under Rule 53 (1) of the Trade and Merchandise Marks Rules, 1959?
(C) What is the effect of Rule 106 of the said Rules on the exercise of powers by the Registrar under Rule 52 (2)?
( 2 ) THESE questions had arisen for consideration before a learned Single Judge in FAO 21/68. This was decided on 21st December 1971. In that case the learned Single Judge held as follows:-
"this provision deals with the extension of time which has not been expressly provided by the Act. The time mentioned in Rule 53 (1) i. e. , two months is a time which has not been expressly provided in the Act and, is therefore, capable of being extended by the Registrar himself. This time can be extended even if the time has expired i. e. , even if the two months period has expired and Rule 53 (2) has come into operation and the opposition has been deemed to have been abandoned; the Registrar has still power under Section 101 to extend the time, which necessarily means that the opposition becomes alive again if this power is exercised. The Rule made under the Act cannot operate so as to defeat the Act. It is clear, therefore, that even if the deeming provision in Rule 53 (2) has come into application, if time is subsequently extended by the Registrar, the time for doing the acts mentioned in Rule 53 (1) will stand extended and, therefore, the opposition will again be deemed to be subsisting inspite of Rule 53 (2 ). "it must be mentioned that in this case the learned Single Judge has also held that by virtue of the legal fiction in Rule 53 (2) the deemed abandonment became operative automatically and no specific order was required to be passed by the Registrar. The learned Single Judge held that an order passed by the Registrar to the effect that the opposition had stood abandoned was passed without jurisdiction and it had no legal existence.
( 3 ) IN this very case, after the abovementioned Judgment, the Registrar issued a Notice under Rule 54. The matter was again carried to this Court. It resulted in a Judgment which is reported in 1978 (3) IPLR 148. Coincidentally this Judgment was also delivered by the same Judge. While considering the questions which had been raised in this matter the learned Single Judge now holds as follows:-
"at first sight, it would seen that the view I have taken works a hardship, but any other interpretation does violence to the Rule 53. It is not possible for the Registrar to resuscitate an application which had to be deemed to be abandoned long before by legal action, merely by giving a direction that evidence should now be filed. Of course, if during the period of two months before the deeming effect of Rule 53 (2) came into operation, the Registrar could have directed that the opposition shall not be deemed to be abandoned. If he had extended time under Rule 106 for filing the evidence in opposition, he could act thus within the extended period although beyond two months. If however, the Registrar did not choose to make any direction under Rule 53 (2) during the period, he was not entitled to later on issue a notice allowing evidence to be filed, because by this method he would be defeating the purpose and provisions of Rule 53 (2 ). No such discretion is given to the Assistant Registrar and, therefore, I have to hold that the opposition had to be deemed to be abandoned. "
( 4 ) READING of the two Judgements indicates that contrary opinions have been expressed by the same Judge.
( 5 ) THESE questions again arose in
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