The main legal point established in the judgment is that the Registrar has the power to extend time for filing evidence under Rule 53(2) of the Trade & Merchandise Marks Act.

JUDGMENT :

S.K. Mahajan, J.

The appellant herein had taken proceedings under Section 21 of the Trade & Merchandise Marks Act before the Registrar of trade mark by opposing the registration of the trade mark applied for by the respondent. On 19th July, 1989 the respondent lodged the counter statement denying all the material averments contained in the notice of opposition. The appellant was instructed to file evidence within two months from the receipt by them of the counter statement vide a registered letter dated 29th March, 1989. Despite several adjournments, the appellant failed to rile evidence in support of the averments made in the opposition.

2. Assistant Registrar of Trade Mark thereafter called for evidence under Rule 54 from the respondent in support of its application for registration of the mark. The respondent on 13th July, 1994 filed an application with the prayer that since the opponent had failed to comply with Rule 53(1), the mandatory provision of 53(2) had come into play and there was, therefore, no reed to call for evidence under Rule 54 from the respondent. Relying upon a judgment of this Court in Hindustan Embroidery Mills Pvt. Lid. v. Hemla Embroidery Mills Pvt. Ltd. & Anr. , the Deputy Registrar of trade marks held that Rule 53(2) being mandatory in nature, the opposition would be deemed to have been abandoned on the opponent not complying with the provisions of Rule 53(2) of the Rules framed under the Act. It was held by the Deputy Registrar of Trade Marks that Registrar has no power to proceed on in the absence of compliance with the provisions of Rule 53(2) and the Rule being mandatory deeming provision of the Rule will immediately come into operation and the Registrar will have no power to call for evidence under Rule 54 of the Act. The Deputy Registrar of Trade Marks, therefore, held that the opposition shall be deemed to have been abandon, the application for registration of trade mark shall be accepted and the same shall be proceeded with for registration. Being aggrieved by the order of the Deputy Registrai of Trade Marks, present appeal was filed under section 109 of the Trade and Merchandise Marks Act by the appellant.

3. In a recent Full Berich judgment of this Court in Hastimal Jain Trading as Oswal Industries v. Registrar of Trade Marks & Anr., 2000 PTC 24 (FB), it was held that determination of the questions raised would depend on whether Rule 53(2) can be said to be mandatory or directory. It was held :

"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 lying 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 circumstances under which time cannot be extended by the Registrar is where a time has been expressly provided in the Act. Sim;ltriy, '.ruder Rules 106 the time can he extended by the Registrar, in all cases except for the four, which have been mentioned in paragraph 14 above. It is all the mor,- significant that Rule 53(2) and R