Cadila Healthcare LIMITED v. UNION OF INDIA — 1998 DIGILAW 305 (GUJ)

S. K. KESHOTE, J. ( 1 ) THIS matter was earlier fixed for hearing on 5. 5. 1998. On this date, this court has called upon the learned counsel for the petitioner who put appearance, to satisfy how this petition which is filed against and interlocutory order is maintainable. The learned counsel for the petitioner prayed for time to prepare on this question and that prayer was accepted and this matter was ordered to be fixed for hearing for today. Though the matter is fixed today for hearing on the request of learned counsel for the petitioner, none is present for the petitioner. Heard learned counsel for respondent No. 3. ( 2 ) BRIEFLY, the facts of the case which are necessary for the purpose of deciding this matter are as follows : the petitioner applied for registration of trade mark conazole under No. 488075 in class-5 on 28th March, 1988 before the respondent No. 2. The respondent No. 3, wockhardt Limited gave a notice of opposition opposing the registration of the mark advertisement under number 488075 in class-5 in the Trade Marks Journal No. 1112 dated 1. 10. 1995 at page No. 1949 before respondent No. 2 on 26. 12. 1995. The respondent no. 2, vide its Letter No. GEN-4882-4883 dated 10. 1. 1996, acknowledged the receipt of the notice of opposition and the said notice of opposition was numbered as Opposition no. AMD-1042 under intimation to the petitioner. Thereafter, the respondent No. 2, vide its Letter No. 2996-2997 dated 6. 11. 1996 forwarded a copy of the notice of opposition to the petitioner. The petitioner filed counter statement before the respondent No. 2 on 13. 12. 1996, a copy of which has been sent to respondent No. 3 by respondent No. 2 vide its letter dated 7. 1. 1997, under intimation to the petitioner. ( 3 ) THE Respondent No. 3, vide its letter dated 3. 3. 1997, made a request on form TM to the respondent No. 2 for an extension of time of two months for filing their evidence under rule 53 of the Trade and Merchandise Marks Rules, 1959 (hereinafter referred to as the "rules, 1959"), in support of the notice of opposition. 3. 1997, made a request on form TM to the respondent No. 2 for an extension of time of two months for filing their evidence under rule 53 of the Trade and Merchandise Marks Rules, 1959 (hereinafter referred to as the "rules, 1959"), in support of the notice of opposition. The aforesaid request made by respondent No. 3 was entered in the record of the registry on 21st March, 1997 and it was granted by respondent No. 2 and time for filing of the evidence by respondent No. 3 was extended upto 7th May, 1997. The respondent No. 3, thereafter, vide its letter dated 30th april, 1997, forwarded its evidence in support of the opposition by way of an affidavit of one Mr. K. M. Mirza, alongwith some exhibits as mentioned therein which was also taken on record by the registry vide its letter dated 9. 5. 1997, under intimation to the petitioner, inter alia inviting its attention to Rule 54. At this stage, the petitioner filed an interlocutory petition in the registry on 29th May, 1997 praying therein that the opposition of the respondent No. 3 to the application filed by the petitioner be deemed to have been abandoned under Rule 53 (2) of the Rules aforesaid long back as it did not take any action within the statutory period and the registry had no occasion to pass any order under Rule 53 (2) of the Rules, 1959. Under the impugned order, the respondent No. 2 rejected the aforesaid interlocutory petition filed by the petitioner and further directed that the petitioner may file its evidence under Rule 54 in support of the application within two months from the date of receipt of copy of the order. Hence this Special Civil Application before this Court. The respondent No. 3 filed reply to the Special Civil Application to which the petitioner filed a rejoinder affidavit. ( 4 ) IT is not in dispute that the respondent No. 3 could have filed its evidence in support of the notice of opposition on or before 9th March, 1997. The respondent No. 3, vide its letter dated 3. 3. 1997, made a request in Form TM-56 to the registry requesting therein for extension of time of two months for filing evidence under Rule 53 of the Rules 1959, in support of the notice of opposition. This fact is also not in dispute. The respondent No. 3, vide its letter dated 3. 3. 1997, made a request in Form TM-56 to the registry requesting therein for extension of time of two months for filing evidence under Rule 53 of the Rules 1959, in support of the notice of opposition. This fact is also not in dispute. So the respondent No. 3 submitted an application for extension of time for filing its evidence under Rule 53 of the Rules 1959 in support of the notice of opposition before time as it was permissible to it under Rule 53 for filing of the evidence in support of the notice, has expired. This application of respondent No. 3 was accepted by respondent No. 2 as it is evident from the letter of the latter dated 5th May, 1997. It is also not in dispute that within the extended period of time for filing of the evidence, under Rule 53 of the Rules 1959, in support of the notice of opposition, the respondent No. 3 submitted its evidence vide letter dated 30th April 1997. This evidence was taken on record by the registry, as it is not disputed by petitioner, vide its letter dated 9th May, 1997 and the petitioner was called upon to produce evidence in support of this application. ( 5 ) INSTEAD of producing the evidence in support of the application as provided under rule 54 of the Rules, 1959, the petitioner has filed an interlocutory petition and prayed for declaration that the opposition of the respondent No. 3 be deemed to have been abandoned under Rule 53 (2) of the Rules 1959 long back at it did not take any action within the statutory period. It has further been prayed that the respondent No. 2 had no occasion to pass any order under Rule 53 (2) of the Rules 1959. ( 6 ) THE learned counsel for the Respondent No. 3 raised manifold contentions raising therein the preliminary objection regarding maintainability of this Special Civil application as well as on merits of the matter. It has further been prayed that the respondent No. 2 had no occasion to pass any order under Rule 53 (2) of the Rules 1959. ( 6 ) THE learned counsel for the Respondent No. 3 raised manifold contentions raising therein the preliminary objection regarding maintainability of this Special Civil application as well as on merits of the matter. One of the contentions has been raised that powers do lie with the respondent No. 2 to extend time for filing of the evidence in support of the notice of opposition even after expiry of the statutory period as provided for doing so and a reference in this respect has been made to Sec. 101 of the Trade and merchandise Act, 1959 (hereinafter referred to as the "act, 1958" ). ( 7 ) THOUGH prima-facie I find sufficient merits in the contention raised by the learned counsel for respondent No. 3, I am not expressing any opinion on any of the contentions as in my opinion, this petition, at this stage, is not maintainable and this petition deserves to be dismissed only on the ground that it has been filed against an interlocutory order. ( 8 ) FROM the reading of the Special Civil Application as well as the contentions raised by the learned counsel who appeared for respondent No. 3 in the matter, I find that the petitioner tried to raise contention that in case the evidence in support of the notice of opposition is not produced within two months from the service on it of a copy of counter statement by the registry, then it should have been deemed to have been a case of abandonment of the opposition. The learned counsel for respondent No. 3 has raised a contention that Sub-rule (2) of Rule 53 of the Rules 1959, read with Sec. 101 of the Act 1958 empowers the authority, herein the respondent No. 2, to extend the time for filing of the evidence in support of the opposition even after expiry of statutory period as provided for filing the same under Sub-rule (1) of the said Rules. Though prima-facie this contention of the learned counsel for respondent No. 3 cannot be said to be without any substance, but still I do not consider it to be appropriate to express any final opinion on this contention as, as stated earlier, this petition deserves to be dismissed only on the ground that it has been filed against an interlocutory order. ( 9 ) THIS petition has been filed by the petitioner under Art. 226 of the Constitution of india, Speaking for the Division Bench of this Court, Mr. Justice K. G. Balakrishnan, in the case of Chhagan Ranchod Kukava vs. General Manager, Western Railway, Bombay and anr. , reported in 1998 (1) GLH 461 , observed that an order passed by the Tribunal can be challenged under Arts. 226 or 227 of the Constitution of India only if there is a jurisdictional error or procedural error apparent on the face of the record. Under the impugned interlocutory order, the Respondent No. 2 has decided that it is not the case where the opposition of the Respondent No. 3 should be deemed to have been abandoned. So, the matter has not been decided finally. Only the action of respondent No. 2 taking on record of these proceedings, the evidence filed by Respondent No. 3 has been held to be justified. That evidence has been taken on record by extending the period of filing evidence and the petitioner has been given opportunity to produce its evidence in support of its application. So by this impugned order, the proceedings are not finally culminated in favour of the respondent No. 3. The matter has to be decided on merits. An interlocutory order is always subject to challenge after the proceedings in which it has been passed are finally terminated while challenging the final order passed by the authority before the appropriate forum. One of the cardinal principles of exercising extra ordinary powers by this Court under Art. 226 of the Constitution is that even if the order impugned in the writ petition appears to be illegal, in case it does not result in failure of justice to the party concerned or in denial of any right of challenging the same, this Court will not interfere in the matter under Art. 226 of the Constitution of India. A reference in this respect may have to the two decisions of the Apex Court in the case of A. M. Allison vs. B. L. Sen, reported in AIR 1958 SC 227 and in the case of Balvant Rai vs. M. N. Nagrashna, reported in AIR 1960 SC 407 . In the present case, if ultimately the matter is decided against the petitioner by the respondent No. 2, then while challenging the final order, the petitioner has all the right to challenge this interlocutory order also, if it is worthy of challenge, before the appropriate forum available to challenge the final order. Normally, the matters are to be decided on merits by affording to the contesting parties all the opportunities to produce their evidence, but even if it is taken that the respondent No. 3 could not have been permitted to produce evidence in support of its notice of opposition, as what the petitioner contends, still the extension of time granted to respondent No. 3, for filing the evidence, by respondent No. 2 will not result in failure of justice as, as stated earlier, that order is always subject to challenge, but not at this stage. The petitioner has to wait for adjudication of the matter as well as for final termination of proceedings. There are all possibilities that the petitioner may succeed in the case and in that eventuality, there may not be any necessity of challenging this order. This is another point which favours the view which I am taking that against an interlocutory order, normally, the petitions are not maintainable. It is not gainsay that the present problem with the Courts is of heavy pendency of the matters and if the petitions are entertained against interlocutory orders, which can always be challenged while challenging the final orders passed in the proceedings, it will be nothing but only an act of injury which the litigants are suffering on account of delay in disposal of their matters by the Courts. Moreover, nor it can be justified at this stage to challenge this order when it will not result in failure of justice to the petitioner. Moreover, nor it can be justified at this stage to challenge this order when it will not result in failure of justice to the petitioner. The petitioner will have all the opportunity to submit its evidence upon the application and still if it feels that this order could not have been passed, it has all the right to challenge the same at the appropriate stage, for which it has to wait till the matter is finally decided. ( 10 ) THIS application of the petitioner has been filed under Sec. 18 of the Act, 1958. On this application, final order has to be passed by respondent No. 2 under Sec. 21 of the act 1958 and that may be either the registration as prayed for of the trade mark is granted or it is rejected. Under Sec. 109 of the Act aforesaid, an appeal does lie to this Court within a prescribed period of limitation from any order or decision of Registrar under the act 1958 or the Rules made thereunder. Where the final order of the authority is appealable, then certainly any interlocutory order passed in the proceedings can be challenged by the aggrieved person in the appeal filed against final order. In such class of cases, challenge to the interlocutory order, normally should not be entertained by this court, under Arts. 226 or 227 of the Constitution of India. The party concerned should be asked to first wait for the final adjudication of the matter and still after the termination of the matter finally, if it feels aggrieved of the interlocutory order, then it can be made a ground of challenge in the appeal or any other proceeding provided, while challenging the final order as one of the grounds therein. ( 11 ) THE matter is yet to be examined from another angle. From the scheme of the Act, 1958, it transpires that the application for registration of trade marks has to be disposed of expeditiously. Otherwise also, leaving apart the scheme of the Act aforesaid, whether it is a proceeding before the Civil Court or Criminal Court or before this Court or even before any quasi-judicial authority or administrative authority, the same has to be disposed of expeditiously. Otherwise also, leaving apart the scheme of the Act aforesaid, whether it is a proceeding before the Civil Court or Criminal Court or before this Court or even before any quasi-judicial authority or administrative authority, the same has to be disposed of expeditiously. This object, as well in some of the cases the mandate of the statute, can only he achieved or attained where the Courts which are having Powers of superintendence or extra ordinary powers under Art. 226 of the Constitution of India, do not permit the parties to stall the final adjudication of the matter by questioning the decision of the authorities with regard to interlocutory matters when the matter if worthy, can be agitated even after final orders are passed. I consider it to be fruitful here to make reference to the decision of the Apex Court in the case of Cooper Engineering Ltd. vs. P. P. Mundhe, reported in AIR 1975 SC 1900 . The Apex Court, in this case, held : "10. In Management of Ritz Theatre (P) Ltd. vs. Its Workmen, ( AIR 1963 SC 295 ) this Court was required to deal with a rather ingenious argument. It was contended in that case by the workmen, in support of the Tribunals decision that since the management at the very commencement of the trial before the tribunal adduced evidence with regard to the merits of the case it should be held that it had given up its claim to the propriety or validity of the domestic enquiry. While repelling this argument this Court made some significant observations:"in enquiries of this kind, the first question which the Tribunal has to consider is whether a proper enquiry has been held or not. Logically, it is only where the Tribunal is satisfied that a proper enquiry has not been held or that the enquiry having been held properly the findings recorded at such an enquiry are perverse, that the Tribunal derives jurisdiction to deal with the merits of the dispute. . . . Logically, it is only where the Tribunal is satisfied that a proper enquiry has not been held or that the enquiry having been held properly the findings recorded at such an enquiry are perverse, that the Tribunal derives jurisdiction to deal with the merits of the dispute. . . . If the view taken by the Tribunal was held to be correct, it would lead to this anomaly that the employer would be precluded from justifying the dismissal of his employee by leading additional evidence unless he takes the risk of inviting the Tribunal to deal with the merits for itself, because as soon as he asks for permission to lead additional evidence, it would follow that he gives up his stand, based on the holding of the domestic enquiry. Otherwise, it may have to be held that in all such cases no evidence should be led on the merits unless the issue about the enquiry is tried as a preliminary issue. If the finding on that preliminary issue is in favour of the employer, then, no additional evidence need be cited by the employer : jf the finding on the said issue is against him, permission will have to be given to the employer to cite additional evidence. " ( 12 ) TAKING into consideration the totality of the facts of this case, this writ petition which has been filed by the petitioner against as interlocutory order cannot be entertained and the same is dismissed. Notice discharged. Interim relief granted by this Court stands vacated. No order as to costs. .