CADILA LABORATORIES LIMITED v. KAMATH ATUL — 1992 DIGILAW 243 (GUJ)

THAKKER, J. ( 1 ) ). This appeal is filed by Cadila Laboratories-appellant against m/s. Kamath Atul and Co.- respondent No. 1 herein against the order passed by the Assistant Registrar of Trade Marks, Ahmedabad-respondent No. 2 herein- annexure c dated 1/01/1992, by which the application of the appellant being TM 16 has been rejected. ( 2 ) ). To appreciate the controversy in question few relevant facts may now be stated. It is the case of the appellant that it is a company incorporated under the provisions of the Companies Act, 1956 and is carrying on its business of manufacturing and marketing of medicinal and pharmaceutical preparations since many years. It is the case of the appellant that on 4/04/1986, it made an application for registration of its Trade Mark herbinol with the Trade Mark Registry, Bombay and the said application was given Sr. No. 452044, in accordance with the provisions of the Trade and Merchandise marks Act, 1958 (hereinafter referred to as the Act ). The application was advertised under Sec. 20 (1) of the Act, in the Trade Marks Journal No. 956 dated 1/04/1989 at page 19. Under the provisions of Sec. 20 (1) of the act, such application can be resisted by making appropriate application before the authority. It is the case of the appellant that the first respondent made an application in the form of notice of opposition Form TM 5 along with the request in Form TM 4 4/08/1989, objecting the registration of Trade Mark of the Company. According to the appellant an application in the form of notice of opposition must be made within a period of 3 months from the date of advertisement of an application for registration or within such further period not exceeding one month in the aggregate as the registrar, on application made to him in the prescribed manner and on payment of prescribed fee allows. It is the case of the appellant that when the application was published in the Journal on 1/04/1989, the respondent no. 1 was required to file notice for opposition on or before 1-7-1989 or at the most on or before 1-8-1989. It is the case of the appellant that when the application was published in the Journal on 1/04/1989, the respondent no. 1 was required to file notice for opposition on or before 1-7-1989 or at the most on or before 1-8-1989. It is the case of the appellant-Company that the Company came to know about the fact that the notice of opposition was made by the first respondent on 2/08/1989, and therefore, the appellant-Company filed an interlocutory petition (Annexure b) on 28/12/1989, inter alia, contending that since the application was made on of after 2/08/1989, the notice of opposition was ab initio Void and should not have been entertained. It was, therefore, required to to be taken off the file and the entire notice of opposition was required to be summarily rejected. The respondent No. 2 heard the said application and passed an order on 24/01/1991. In the said order, he observed that it was the case of the first respondent that the notice of opposition was sent by the first respondent by speed-Post on 27/07/1989 and was delivered in the office of the 2nd respondent on 28/07/1989. It was a mistake and or fault on the part of the office of the second respondent that receipt was issued to the first respondent as late as on 2/08/1989. Looking to the order annexed to the Misc. Petition, it clearly appears that the second respondent accepted the said explanation put forward by the first respondent and held that if there was any fault on the part of the Registry of the second respondent, the first respondent should not be penalised for such an act. He, therefore, observed as under:"it is a very simple matter where the issuance of receipt was delayed by the office and the opponents are in no way or cannot be held to be responsible for the same. "in view of the above finding recorded by the second respondent, he rejected the application filed by the present appellant-Company with costs. The appellant- company filed Review Petition against the said order passed by the second respondent on 25/02/1991, which also came to be rejected by an order dated 19/07/1991. Thereafter, the present application, namely, TM 16 was filed by the appellant-Company for amendment of its counter statement. The appellant- company filed Review Petition against the said order passed by the second respondent on 25/02/1991, which also came to be rejected by an order dated 19/07/1991. Thereafter, the present application, namely, TM 16 was filed by the appellant-Company for amendment of its counter statement. In form TM 16, after para 7 in the counter statement, the appellant-Company wanted to add para 7 (A) which reads as under :"we say that the notice of opposition is bad-in-law and not maintainable as it was filed beyond the time prescribed therefor. Besides this TM-5, a request on TM- 44 is also bad-in-law and not maintainable as it was filed beyond the time prescribed therefor, i. e. , it was not filed before the expiry of three months period. We, therefore, submit that the TM-5 and TM-44 are illegal, not maintainable and should be dismissed in limine. "the Registrar, after hearing the parties, rejected that prayer by the impugned order dated 1/01/1992, and against this order the present appeal is filed by the appellant-Company. ( 3 ) ). Mr. R. R. Shah, learned Counsel for the appellant-Company contended that the order passed by the second respondent is clearly illegal, contrary to law and requires to be quashed and set aside. He submitted that the second respondent has committed an error of law in rejecting the application for amendment. According to Mr. Shah, the principles analogous to the provisions of Order VI, :rule 17 of the Code of Civil Procedure, 1908 (hereinafter referred to as the Code) are applicable to the present proceedings also and as per well settled principles of law, the provisions relating to amendment of pleadings are required to be liberally construed. For the said purpose, Mr. Shah drew my attention to the leading decision of the Supreme Court including the case of Patil v. Patil, reported in AIR 1957 SC 357 and contended that in rejecting the application, the second respondent has exceeded his jurisdiction and power which requires to be corrected by this Court. Mr. For the said purpose, Mr. Shah drew my attention to the leading decision of the Supreme Court including the case of Patil v. Patil, reported in AIR 1957 SC 357 and contended that in rejecting the application, the second respondent has exceeded his jurisdiction and power which requires to be corrected by this Court. Mr. Shah also submitted that there is an error apparent on the face of record, committed by the second respondent in not considering the vital fact that at an earlier occasion when the interlocutory petition was filed by the Company on 28/12/1989, it was not with regard to amendment of counter statement but a specific prayer for treating the notice of opposition as null and void and to throw away the said objections at that stage. The present interlocutory application is entirely different in nature and, therefore, the second respondent was not justified in invoking the provisions analogous to the doctrine of res judicata. He also submitted that irrelevant considerations have been taken into account by the second respondent in observing that the first respondent was a small company being harassed by the appellant-Company. He contended that if in law, it is open to the appellant-Company to take objection with regard to limitation by amending his counter statement, the second respondent cannot reject the said prayer made by the company. He, therefore, submitted that the appeal may be allowed and the order may be quashed and set aside. ( 4 ) ). Mr. B. B. Naik, learned Counsel appearing on behalf of the first respondent, on the other hand, supported the decision passed by the second respondent. He submitted that there cannot be two opinions about well settled principle of law that amendment of pleadings must be liberally granted by the Court. He, however, submitted that in the facts and circumstances of the case, that was not the question before the Court and the real controversy was whether the point was earlier decided by the second respondent or not. He submitted that it cannot be denied that in an earlier interlocutory petition, the prayer was to treat the notice of opposition as null and void and to throw away the said objection at the threshold. He submitted that it cannot be denied that in an earlier interlocutory petition, the prayer was to treat the notice of opposition as null and void and to throw away the said objection at the threshold. But it is also clear that the ground put forward by the appellant company was regarding limitation and that the said ground was precisely negatived by the second respondent at that time. He, therefore, submitted that the Court correctly and properly decided the matter holding that the interlocutory petition filed by the appellant-Company was not maintainable at law. ( 5 ) ). Having heard the learned Counsel for the respective parties, I am of the opinion that the order passed by the second respondent requires to be affirmed and the appeal requires to be dismissed. It cannot be gainsaid that the provisions relating to amendment of pleadings are required to be liberally construed. In my opinion, however, this is not question in the present proceedings. The material question is whether the second interlo- cutory petition filed by the appellant-Company on 8/10/1991 was maintainable, in view of the order passed in an interlocutory petition on 24/01/1991 and review application having been rejected on 25/02/1991 ? The Honble Supreme Court had an occasion to consider application of doctrine of res judicata at the interlocutory stage in a number of decisions. I, do not intend to discuss the doctrine in detail. It is, however, necessary to refer to a decision in the case of Arjun Singh v. Mohindra Kumar, reported in AIR 1964 SC 993 . In that decision, relying upon an earlier leading decision in the case of Satyadhyan v. Smt. Deorajin Debt, reported in AIR 1960 SC 941 , the Supreme Court observed that interlocutory orders are of various kinds. Some orders like that of stay, injunction or receiver are designed to preserve the status quo pending the litigation and to ensure that the parties might not be prejudiced by the normal delay which the proceedings before the Court usually take. They do not, in that sense, decide in any manner the merits of the controversy in issue in the suit and do not, of coarse, put an end to even a part of the proceedings. There may, however, be different types of orders though interlocutory in nature. They do not, in that sense, decide in any manner the merits of the controversy in issue in the suit and do not, of coarse, put an end to even a part of the proceedings. There may, however, be different types of orders though interlocutory in nature. But at the same time, they are not directed to maintain the status quo or to preserve the property pending the final adjudication but are designed to ensure the just, smooth, orderly and expeditious disposal of the suit. They are interlocutory only in the sense that they do not decide any matter or issue arising in the suit nor put an end to the litigation. At the same time, however, they cannot be re-opened if the appeals are not filed, appeals are filed and they are disposed of, or no appeal lies against those orders. A similar view is taken by the Supreme Court in a number of subsequent decisions also. ( 6 ) ). Therefore, the question before me is whether the order passed in the first interlocutory petition can be said to be an order of such a nature, by which the appellant-Company would not be entitled to file another interlocutory petition ? Mr. Shah strenuously argued that the relief prayed for in the first interlocutory application was to throw away the notice of opposition at the threshold and not to amend the counter statement, as has been done by filing the present interlocutory application. In my opinion, however, the contention of Mr. Naik is well-founded that the ground put forward in an earlier application was the same which is put forward in the present interlocutory petition. In an earlier interlocutory petition the appellant-Company submitted and prayed that the notice of opposition should be dismissed in limine inasmuch as it was barred by limitation. The present application, i. e. , TM 16 is in the prescribed form by which the appellant- company wants to amend his counter statement by taking the plea of limitation. In view of the findings recorded in the earlier interlocutory petition that the office received the notice of opposition on 28/07/1989 and it was within the period of limitation, the present application is not maintainable at law. The finding recorded earlier cannot be re-opened in the present proceedings. ( 7 ) ). In view of the above discussion, I do not find any substance in this appeal. The finding recorded earlier cannot be re-opened in the present proceedings. ( 7 ) ). In view of the above discussion, I do not find any substance in this appeal. The appeal is required to be dismissed. Hence, the appeal is dismissed, however, in the facts and circumstances of the case, with no order as to costs. ( 8 ) ). R and P be sent back immediately. Copy of this order to be sent to the second respondent. .