The duty of the Court to rectify orders based on wrong assumptions of facts and the limited scope of review compared to an appeal.

JUDGMENT

Saurabh Banerjee, J.

REVIEW PETITION NO.153/2023

1. By the present petition under Section 114 and Order XLVII rule 1 read with Section 151^1[Hereinafter referred to as "review petition"^] of The Code of Civil Procedure, 1908^2[Hereinafter referred to as "CPC"^] appellant seeks review of order dated 12th May, 2023 whereby this Court, while making certain interim arrangements in disposing of its appeal, after considering multifarious factors, has modified the impugned order dated 19th April, 2017 passed by the learned Single Judge to the extent specified in paragraph 15 therein.

2. According to appellant, the said order calls for review as there is an error apparent on the face of the record as this Court has relied upon the misstatement of the learned senior counsel for respondents qua the respondents' application under Order VI rule 17 of the CPC for bringing the registrations of the word mark "Darzi/The Darzi"^3[Hereinafter referred to as "word mark"^] in various Classes on record before the learned Single Judge being allowed whereas actually the said application was pertaining to the registrations for the composite logo mark^4[Hereinafter referred to as "logo mark"^] only

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and also as this Court by virtue of the order under review has granted independent rights to the respondents over the word mark and further as the appellant has never sought any exclusivity over the word "Darzi" but has always asserted its right over the logo mark only. Further replying upon Jain Shikanji Private Limited Vs. Satish Kumar Jain, 2023/DHC/001486 delivered by this very Court, it was contended that this Court could not have taken the fresh/new registrations into consideration. Lastly, relying upon S. Nagaraj & Ors. vs. State of Karnataka & Anr., 1993 Supp (4) SCC 595 and M.M. Thomas vs. State of Kerala & Anr., (2000) 1 SCC 666, learned counsel for appellant contended that it is the duty of the Court to rectify, revise and recall its orders as and when it is brought to its notice that certain orders were passed on a wrong or mistaken assumption of facts and that the implementation of those orders would have serious consequences.

3. In response, the learned senior counsel for respondents contended that despite obtaining registrations for the word mark in various Classes, respondents were unable to file any application under Order VI rule 17 of the CPC for bringing them on record before the learned Single Judge due to change of counsel thereby resulting in miscommunication. Further, drawing attention of this Court to paragraph 11 of the order under review, it is contended that this Court was duly apprised of the fresh registrations for the word mark obtained by respondents in Class 38 in 2018 and Class(s) 24 and 35 in 2021, however, it was inadvertently submitted before this Court that the said grants had been amended/incorporated in the pleadings and reliefs before the learned Single Judge.

4. In rejoinder, the learned counsel for appellant contended that the respondents have neither disclosed anything qua the objection raised by the Trade Mark Registry for the word mark in Class 40 nor amended their pleadings either qua it or qua grant of registrations for the word mark in different Classes before the learned Single Judge. However, the same has no relevance for adjudicating the present review petition.

5. Interestingly, it is factually recorded in paragraph 9 of the order under review that the respondents had obtained registrations for the word mark in various Classes de hors their forming a part of the record before the learned Single Judge. The grant of said registrations in favour of respondents, being a matter of fact, have not been denied by the appellant. Thereafter, based on a pointed query by this Court, it was recorded in paragraph 10 of the order under review about "......few fresh (additional) documents......" which included both the logo mark and the word mark and which were, as per respondents, already forming a part of t