(PER : HONOURABLE MR.JUSTICE JAYANT PATEL)

1. The present appeal is directed against the judgment and order passed by the learned Single Judge in Special Civil Application No.8361/97 whereby the learned Single Judge did not interfere with the decision taken by the Registrar of Trade Marks under the Trade and Merchandise Marks Act, 1958 (hereinafter referred to as the Act ).

2. The short facts can be summarised as under.

3. On 28.03.1988, the application was made by the appellant-original petitioner for registration of mark CONAZOLE. On 01.10.1995, the application was advertised in trademark journal. On 26.12.1995, opposition was submitted by respondent no.3. On 06.11.1996, the copy of the opposition was sent to the appellant-original petitioner by Trade Mark Registry. On 13.12.1996, counter statement was filed by the appellant-original petitioner. On 07.01.1997, the copy the of the counter statement was sent to the respondent no.3 by Trade Mark Registry. On 10.01.1997, counter statement was received by the respondent no.3. On 11.03.1997, respondent no.3 was required to file evidence under the Trade and Merchandise Marks Rules, 1959 (hereinafter referred to as the Rules ). On 21.03.1997, i.e., after the expiry of the period of two months, the application was filed for extension of time by respondent before the Trade Mark Registry. On 29.03.1997, the petitioner sent a letter to the Trade Mark Registrar requesting him to treat the opposition as abandoned by invoking the provisions of Rule 53 (2) of the Rules. On 30.04.1997, evidence under Rule 53(1) was forwarded to the Trade Mark Registry by the respondent no.3. On 07.05.1997, the time was extended for filing evidence by respondent no.3 and on 09.05.1997, the Trade Mark Registry acknowledged the receipt of the evidence on record. On 29.05.1997, the original petitioner filed application seeking direction of the Registrar to treat the opposition of abandonment under Rule 53(2) of the Rules. The said interlocutory application was heard by the Registrar and vide order dated 08.10.1997, the Registrar dismissed the interlocutory application. Being aggrieved by the decision of the learned Registrar, the petitioner preferred Special Civil Application No.8361/97 and the learned Single Judge vide the impugned order dismissed the petition. Under the circumstances, the present appeal before this Court.

4. In Special Civil Applications No.8327/97 and 8328/97, similar questions arise for consideration, but as the LPA was pending before the Division Bench of this Court, the learned Single Judge has directed for hearing of the main Special Civil Applications with the present appeal. Hence, those Special Civil Applications are listed for simultaneous hearing with the main Letters Patent Appeal.

5. We have heard Mr.Chhatrapati, learned counsel for the appellant in the Letters Patent Appeal as well as for the petitioners in Special Civil Applications No.8327/97 and 8328/97. We have heard Mr. PP. Banaji, for respondents in the Special Civil Applications No.8327/97 and 8328/97. Mr. Y. J. Trivedi has filed his appearance for respondent no.3 in Letters Patent Appeal No.1679/99. The other respondents are served but none has appeared on their behalf.

6. In the present group of matters, the interpretation called for is of Rule 53(2) of the Rules and further as to whether it could be said that there is abandonment of opposition in the event the evidence in support of the opposition is not filed within a period of two months and the time is extended by the Registrar after expiry of the period of two months.

7. Learned counsel Mr. Chhatrapati for the appellant and the petitioners did contend that sub-rule (2) of Rule 53 enabling the Registrar to extend the period has role to play if any application is moved within the outer limit of two months as provided in sub-rule (1), but if no application is made, the deeming fiction of abandonment of opposition would apply and the Registrar thereafter will have n