(1.) The appellant herein had taken proceedings under Section 21 of the Trade & Merchandise Marks Act before the Registrar of trade mark by opposing the registration of the trade mark applied for by the respondent. On 19th July, 1989 the respondent lodged the counter statement denying all the material averments contained in the notice of opposition. The appellant was instructed to file evidence within two months from the receipt by them of the counter statement vide a registered letter dated 29th March, 1989. Despite several adjournments, the appellant failed to file evidence in support of the averments made in the opposition.
(2.) Assistant Registrar of Trade Mark thereafter called for evidence under Rule 54 from the respondent in support of its application for registration of the mark. The respondent on 13th July, 1994 filed an application with the prayer that since the opponent had failed to comply with Rule 53(1), the mandatory provision of 53(2) had come into play and there was, therefore, no need to call for evidence under Rule 54 from the respondent. Relying upon a judgment of this Court in Hindustan Embroidery Mills Pvt. Ltd. v. Hemla Embroidery Mills Pvt. Ltd. & Anr. , the Deputy Registrar of trade marks held that Rule 53(2) being mandatory in nature, the opposition would be deemed to have been abandoned on the opponent not complying with the provisions of Rule 53(2) of the Rules framed under the Act. It was held by the Deputy Registrar of Trade Marks that Registrar has no power to proceed on in the absence of compliance with the provisions of Rule 53(2) and the Rule being mandatory deeming provision of the Rule will immediately come into operation and the Registrar will have no power to call for evidence under Rule 54 of the Act. The Deputy Registrar of Trade Marks, therefore, held that the opposition shall be deemed to have been abandon, the application for registration of trade mark shall be accepted and the same shall be proceeded with for registration. Being aggrieved by the order of the Deputy Registrar of Trade Marks, present appeal was filed under section 109 of the Trade and Merchandise Marks Act by the appellant.
(3.) In a recent Full Bench judgment of this Court in Hastimal Jain Trading as Oswal Industries v. Registrar of Trade Marks & Anr., 2000 PTC 24 (FB), it was held that determination of the questions raised would depend on whether Rule 53(2) can be said to be mandatory or directory. It was held :-