( 1 ) THIS appeal has arisen from the order of the Deputy Registrar, Trade Marks allowing the application of the applicant treating the opposition proceedings as having been abandoned by operation of Rule 52 sub-rule (2) of the Trade and Merchandise Marks Rules, 1959 (hereinafter referred to as "the said Rules" ).

( 2 ) IN the present case, Notice of opposition was filed on 10. 8. 92 and the counter- statement thereto was filed on 20. 11. 93. The evidence in support of opposition should have been filed latest by 20th January 1994 us provided under Rule 53 (1) of the said Rules. As the opponents did not seek extension of time for filing the evidence within the period prescribed under Rule 53 (1), it was held by the impugned order that the deeming provisions of Rule 53 (2) of the said Rules had already come into operation and the opposition was deemed to have been abandoned and the Registrar had no power to extend the time after the deeming provision came into play.

( 3 ) BEFORE proceeding further with the case, it is relevant to peruse the provisions of Rules 53 and 106 of the said Rules which are reproduced hereunder:-

53. Evidence in support of opposition-

(1) Within two months from the service on him of a copy of the counter-statement by the Registrar, the opponent shall cither leave with the Registrar such evidence by way of affidavit as he may desire to adduce in support of his opposition or shall intimate to the Registrar and to the applicant in writing that he does not desire to adduce evidence in support of his opposition but intends to rely on the facts stated in the notice of opposition. He shall deliver to the applicant copies of any evidence that he leaves with the Registrar. under this sub-rule

(2) If an opponent lakes no action under sub- rule (1) within the time therein prescribed he shall, unless the Registrar otherwise directs he decmed to have abandoned his opposition. "

106. Extension of time-

(1) An application for extension of time under section 101 (not being a time expressly provided in the Act or prescribed by Rule 81 or sub-rule (4) of Rule 82 or a time for the extension of which provision is made in the rules) shall be made on Form TM-56.

(2) Upon an application made under sub-rule (1) the Registrar, if satisfied that the circumstances are such as to justify the extension of the time applied for, may, subject to the provisions of the rules where a maximum time-limit is prescribed and subject to such conditions as he may think fit to impose extend the time and notify the parties accordingly and the extension may be granted though the time for doing the act or taking the proceeding for which it is applied for has already expired. "

( 4 ) IN support of the impugned order and the interpretation of rule 53 (2), reliance has been placed on the decision of this Court in C. M. (Main) No. 20 of 1977 Hindustan Embroidery Mills Pvt Ltd Vs. Hemla Embroidery Mills Pvt Ltd and another, wherein a single Judge ( D. K. Kapur, J. , as his Lordship then was) has held that "unless the Registrar otherwise directs" the opposition under Rule 53 (2) is deemed to have been abandoned and that Rule 53 (2) is mandatory and operates automatically. The court in that case has held that it is not possible for the Registrar to extend time beyond the period prescribed under Rule 53 (1), if no action is taken by the opponent and no extension is sought before the time runs out because the deeming effect of Rule 53 (2) would then come into operation. However, before the deeming provision of rule 53 (2) came into operation, the Registrar could have directed that the opposition shall not be deemed to have been abandoned and that he could also extend the time under rule 106 of the said rules for filing evidence.

( 5 ) THIS matter again came up for consideration before another single bench of this Court ( B. N. Kirpal, J, as his Lordship then was) in the case of Richardson-Merrel Inc. Vs. La-Medica Private Ltd etc. in C. M. (Main) No. 77