ORDER (ORAL)

% 16.02.2023 C.O. (COMM.IPD-TM) 244/2021 C.O. (COMM.IPD-TM) 245/2021 C.O. (COMM.IPD-TM) 342/2021 C.O. (COMM.IPD-TM) 395/2021 CS(COMM) 779/2022

1. These matters were listed today in view of a somewhat intricate objection raised by Mr Jayant Kumar, learned Counsel for the respondents in CO (COMM. IPD-TM) 244/2021 and CO (COMM IPD-TM) 245/2021, to the taking, on record, of the rejoinders filed by the petitioners. This order disposes of the objection.

2. Mr. Jayant Kumar, learned Counsel for the respondent submitted that the rejoinders filed by the petitioner in these petitions had been filed beyond the time stipulated in Rule 7(x)1 of the Intellectual Appellate Division (IPD) Rules, 2002 as applicable to this Court and that, therefore, they could not be taken on record. According to Mr. Jayant Kumar, the use of the word ―shall‖, in Rule 7(x) of the IPD Rules supra forecloses the right of the petitioner to file a rejoinder once the maximum period envisaged in the said Rule has expired.

3. Rule 7(x) of the IPD Rules which, admittedly, relates to the procedure to be followed in the case of original petitions, and would, therefore, apply to the present case, requires the rejoinder to the reply filed by the respondent in an original petition to be filed ―within the period prescribed by the Court or within 30 days from the date on which the Court directs the filing of such rejoinder‖. Mr. Jayant Kumar points out that, in these cases, the learned Joint Registrar in this Court had directed filing of rejoinder on 12th September 2022 without stipulating any period within which the rejoinder was to be filed. Rule 7(x) would, therefore, in his submission, require the rejoinder to be filed within a maximum period of 30 days from 12th September 2022. The rejoinder having been filed on 13th February 2023, Mr. Jayant Kumar submits that it could not be taken on record. The order dated 12th September 2022 of the learned Joint Registrar (Original) read thus:

― Reply/counter statement filed by respondent no. l along with documents.

Rejoinder to counter statement and affidavit of

1 7. Procedure for Original Petitions (Civil Original Petition)

(x) Rejoinder to the reply, if so directed, shall be filed within the period prescribed by the

Court or shall be filed within 60 days from the date on which the Court directs filing of the Reply.

admission/denial be filed in terms of Delhi High Court Intellectual Property Rights Division Rules 2022.

It is submitted by counsel for petitioner that connected matter i.e. C.O. (COMM.IPD-TM) 737/2021 is listed before the Hon'ble Court for 11.11.2022 and has prayed that this matter may be listed along with the said case.

Accordingly, list the matter for completion of pleadings on

11.11.2022.‖

4. Mr. Jayant Kumar has also placed reliance on Rule 52 in Chapter VII of the Delhi High Court (Original Side) Rules, 2018 in conjunction with Rule 7(xiii)3 of the IPD Rules. He submits that, by application of Rule 5 in Chapter VII of the Original Side Rules, the Court was empowered to grant extension of time for filing rejoinder by a maximum period of 15 days beyond the period of 30 days originally provided, subject to costs. The Rule, he submits, further provides that, if the rejoinder is not filed within the said maximum period, it shall not be taken on record.

5. The mandate of Rule 5 in Chapter VII of the Original Side Rules, according to Mr. Jayant Kumar, is clear and, therefore, the rejoinder filed by the petitioner in these petitions cannot be taken on record.

6. Mr. Sanjeev Sindhwani, learned Senior Counsel for the 2 5. Replication. – The replication, if any, shall be filed within 30 days of receipt of the written statement. If the Court is satisfied that the plaintiff was prevented by sufficient cause for exceptional and unavoidable reasons in filing the replication within 30 days, it may extend the time for filing the same by a further period not exceeding 15 days but not thereafter. For such extension, the plaintiff shall