B. N. Kirpal ( 1 ) THIS is an appeal filed under Section 109 (5) of the Trade and Merchandise Marks Act, 1958 (hereinafter called the said Act ). Wherein the appellant has challenged the correctness of the Order of a Single Judge of this Court dated November 4, 1991 who in turn has upheld the decision of the Deputy Registrar of the Trade Marks withdrawing the acceptance of the Application which has been filed by the appellant. ( 2 ) BRIEFLY stated the facts are that on April 19, 1982 the appellant filed before the Registrar of Trade Marks an application for registration of his mark. The application was in respect of electric switchgears and other electrical goods. The application was filed for registration under Class 11 of the 4th Schedule to the Trade and Merchandise Marks Rules, 1959 (hereinafter called as the Rules ). In the application the user was claimed of the mark max STANDARD w. e. f. January 1, 1982. ( 3 ) IT appears that after the scrutiny has been conducted in accordance with provisions of Rule 38 of the said Rules the said application was accepted. Thereafter on January 24, 1986 the appellant has filed an application seeking amendment of the earlier application dated 19th April, 1982. The said amendment which was sought was that the description of goods for which the registration was sought was confined to Electrical Switchgears. In addition thereto the amendment application sought to change the Class 11 to 9. The date of user was also proposed to be changed from January 1, 1982 to January 1, 1979. The next relevant circumstance is that the amended application for registration filed by the appellant was advertised in the Trade Marks Journal on November, 1, 1988 and to that application opposition was filed by the Respondent herein. On August 23, 1989 the appellant herein filed a reply to the Opposition. It is alleged by the appellant that by ignoring this reply an Order was passed on October 16, 1989 by Trade Mark authority to the effect that the application for registration had been abandoned by the appellant herein. Soon thereafter on October, 23, 1989 an application in TM-57 for the review of the Order dated 16th October, 1989 was filed by the appellant. Soon thereafter on October, 23, 1989 an application in TM-57 for the review of the Order dated 16th October, 1989 was filed by the appellant. ( 4 ) PENDING hearing of the review application the Respondent herein filed an application from which the present proceedings arise in which it was inter alia contended that the appellant herein had not come before the Trade Mark Authority with clean hands. It was alleged that the appellant herein knew that the respondent was owner of registered trade mark mex in Class 9 and thereafter the appellant deliberately filed an application for registration under Class 11 and thereby got an order of the acceptance of the application for advertisement. The prayer made in the Interlocutory application filed by the respondent was that the application No. 388954 which has originally been filed by the appellant on April 19, 1982 and which was later on amended should be dismissed. Reply was filed to the said application and on March 13, 1991 the Deputy Registrar of Trade Marks allowed the said Interlocutory application of the appellant and further ordered that the opposition which had been filed by the respondent shall be treated as closed. The review petition was also rejected. In coming to this conclusion the Deputy Registrar observed that by the said amendment the appellant has sought to substantially alter the earlier application and the game was not permissible under law. ( 5 ) THIS decision was challenged by filing an appeal in this Court Mahinder Narain. J. vide his Order dt. November 4. 1991 observed that in view of Rule 38 of the Rules there should have been a fresh search in connection with the application for amendment which ought to have been treated as an amended-application but then directed that in view of the peculiar circumstances of the case the appellant herein should file a fresh application for registration of trade mark. ( 6 ) THE contention of the Appellant is that if a fresh application for registration is filed it will not get the benefit of seniority in the date of the application for registration. The submission is that registration so granted relates back to the date of the application. The initial application was filed on April 19, 1982 and amendment was sought on January 24, 1986. The submission is that registration so granted relates back to the date of the application. The initial application was filed on April 19, 1982 and amendment was sought on January 24, 1986. It was contended that the same relates back to April, 19, 1982 and when registration is granted in Class 9 of the 4th Schedule the of effect this would be that the trade mark of the appellant herein would be regarded as having been registered with effect from April, 19th, 1982. The significant advantage of this for the appellant would be it was contended that the period of seven years for the purpose of conclusiveness as to the validity of the registration as contemplated by Section 32 of the said Act would expire on April 19, 1989, but if a fresh application is filed this period of seven years would not even have commenced. ( 7 ) IT is not doubt true that under Section 22 of the said Act the Respondent may on such terms as he thinks just permit the correction of any error in or in connection with the application or permit an amendment of the application. The question which however arises for consideration is that even assuming the power to grant amendment is there can such a power be exercised which has the result of permitting an applicant to amend his application resulting in change of Class in which he is seeking registration. ( 8 ) IN Order to find an answer to aforesaid query it is necessary to refer to some of the Rules regarding the filing of the application and the procedure for registration thereof. ( 9 ) THE most important ride in this behalf is Rule 26. The same reads as under : "rule 26 : Application to be confined to one Class, etc. (1) Every application for registration of the trade mark shall be in respect of goods comprised in one class only of the Fourth Schedule. (2) In the case of an application for registration in respect of all the goods included in a class or of a large variety of goods in a class, the Registrar may refuse to accept the application unless he is satisfied that the specification is justified by the use of the mark which the applicant has made or intends to make if and when it is registered. (3) Applications for registration of the same trade mark in different classes shallbe treated as separate and distinct applications, and in all cases where a trade mark is registered under the same official number for goods in more than one class, whether on conversion of the specification under Rule 105 or otherwise, the registration in respect of the goods words "if in respect of non-textile goods" omitted vide Trade and Merchandise Marks (Amendment) Rules 1985. ( 10 ) A perusal of the said rule would show that if one type of goods is sought to be registered in more than one class then separate applications have to be filed. Sub-rule 3 Specifically provides that each application for registration of the same trade mark in different classes shall be treated as a separate and distinct application. For each application which is filed specific fee has to be paid. After the application is filed. Rule 38 postulates a search being carried out amongst the registered trade marks and amongst the pending applications for the purpose of ascertaining whether there is on record in respect of the same goods or description any similar trade mark registered or an earlier application pending. After search is completed the application is accepted and thereafter is advertised and objections invited. It is obvious that a search which is conducted would relate to the Class in which the goods are sought to be registered. In the present case when the application sought registration in Class 11 the search was carried out in respect of items in question under Class 11. It is only when no similar mark was found that the application was accepted and advertised. By allowing the amendment the result would have been that an entirely new application would have come into existence. If the applicant had any doubt as to under which of the classes the goods falls then the same could have been just resolved by applying for registration both under Class 11 and under Class 9. All that would have cost the appellant is extra fee. If the goods fell under both the classes then registration would have been granted under both of them. All that would have cost the appellant is extra fee. If the goods fell under both the classes then registration would have been granted under both of them. The Trade Marks authority could have on the other hand come to the conclusion that the registration does not falls under Class 11 but fell under Class 9 and if otherwise the appellant was entitled to the registration the same would have been granted. In such a case it is possible that no loss of fee would have also been suffered by the applicant because of the provisions of the Rule 40 which contemplate the withdrawal of the application for registration in a particular class if the Registrar inter alia objects to the acceptance of the application. Be that as it may Rule 26 read with Rule 38 leave no manner of doubt that separate applications have to be filed for registration being sought in different classes. If amendment like the present was to be allowed not only will it result in the application of the appellant being considered to have been filed with effect from April 19, 1982 but by permitting the change to Class 9 the appellant would also avoid paying the fee which would have otherwise had to pay if he had to file an independent application in respect thereto. We are informed at the Bar that the fee for an application for each of the class under Rule 26 is approximately Rs. 300 while an application for amendment requires a fee of only Rs. 20 to be paid. While the quantum of fee may not be much but what is important is that by allowing amendment the provisions of the Rule 38 will also be by-passed. Once acceptance has been granted under Class 11 then the question of amending the application can under no circumstances arise for the purpose of changing the class. This is precisely what has been alleged by the respondents in the present case and in our opinion rightly so. Applying the analogy of Order VI Rule 17 of the Code of Civil Procedure it would appears to us that by seeking to amendment the application with a view to change the class and also the date of user the appellant is in effect filing a new application which is not permissible under the said provisions. Applying the analogy of Order VI Rule 17 of the Code of Civil Procedure it would appears to us that by seeking to amendment the application with a view to change the class and also the date of user the appellant is in effect filing a new application which is not permissible under the said provisions. In the grab of amendment the character of the earlier application is. sought to be changed and a totally new application will come into existence by passing the provisions of Rule 38 and this cannot be allowed. ( 11 ) THE amendment contemplated by Section 22 of the Act cannot in our opinion permit the change of class of an application which is the substance of the matter. If by mistake or otherwise both Class 11 and Class 9 are written in one application then certainly amendment could have been allowed prior to the search allowing the applicant to delete one of the two classes so as to bring the application in conformity with the provisions of Rule 26 which contemplates one application for one class. The said rule does not contemplate joinder of classes in respect of one item. Any other mistake which may occur possibly even with regards to the date of user but within the same class may be permitted to be amended. Under no circumstances can in the grab of amendment a new application be filed under a different class. The Deputy Registrar (Shri Om Prakash) was therefore right in allowing the interlocutory application of the respondent and in withdrawing the acceptance. ( 12 ) THE learned Single Judge has of course observed that a fresh search should have been conducted in connection with the application for amendment but it appears that no arguments were addressed in the question as to whether such an amendment can at all be allowed. The learned Single Judge has rightly come to the conclusion that the petitioner should file a fresh application for registration of trade mark. This direction in effect means that amendment of the type sought by the appellant herein was not permissible. ( 13 ) FOR the aforesaid reason this appeal is dismissed with costs.