MADAN MOHAN LAL GARG Vs. BRIJMOHAN LAL GARG

JUDGEMENT

(1.) This is an appeal against the judgement and order dated March 15, 1972 of a learned Single Judge of this Court. A preliminary objection has been raised by the respondent that the appeal has been filed after the time prescribed therefor.

(2.) The firm, Meerut Engineering Works, comprised of three partners, namely, the appellant, respondent No. 1 (appellant's brother) and their father Shanker Lal Garg. The firm on June 9, 1960 applied to the Assistant Registrar of Trade Marks, New Delhi, for registration of the trade mark 'SHANKER' in respect of the goods manufactured by it. The firm was dissolved on November 1, 1961 during the pendency of this application. After dissolution, respondent No. 1 applied to the Assistant Registrar to amend the application filed by the firm by deleting the names of the appellant and Shanker Lal Garg and entering the name of respondent No. 1 alone in the application for registration of the trade mark. Thereupon, the appellant objected to the proposed amendment claiming that respondent No. 1 was not entitled to use the trade mark 'SHANKER' under the terms of the deed of dissolution. The objection was over-ruled by the Assistant Registrar but, on appeal, the Assistant Registrar was directed by V. D. Misra, J. to decide the objections after affording adequate opportunity to the appellant to show cause against the amendment. It was then that the appellant filed an application on November 10, 1971 before the Assistant Registrar purporting to be under sub-section (1) of section 44 of the Trade and Merchandise Marks Act, 1958, hereinafter referred to as "the Act" praying that the Assistant Registrar should refuse to take action on the deed of dissolution until the rights of the parties had been determined by a competent Court. This application was rejected by the Assistant Registrar by order dated December 14, 1971 on the ground that it was incompetent as section 44 related only to a case of assignment or transmission of a registered trade mark and could not be invoked where a trade mark had not been registered. Against this order of the Assistant Registrar, the appellant filed an appeal in this Court under sub-section (2) of section 109 of the Act which was 'dismissed by Ansari J. on March 15, 1972.

(3.) This appeal was filed on April 17, 1972, under sub-section (5) of section 109 of the Act alongwith a certified copy of the judgment and order of the learned Single Judge but a certified copy of the order dated December 14, 1971 of the Assistant Registrar of Trade Marks was not filed with it. The memorandum of appeal was returned to the appellant and it was refiled on July 6, 1972 with a certified copy of the order of the Assistant Registrar. Much later, on December 20, 1972 the appellant filed an application for dispensing with the filing of the order of the Assistant Registrar of Trade Marks alongwith the memorandum of appeal.