DHARSHAN LAL DHUPER Vs. MOTIA RANI

JUDGEMENT

(1.) These applications have been filed by the respondents 1 and 2 and Smt. Neena Oberoi, widow of Mr. Virender Kumar for herself and her minor children and partnership firm Plaza Cosmetics (India). A rectification petition for cancellation of the registered trade mark No. 374796 in Class-Ill was filed in this Court. The said petition was filed under Sections 46 and 56 of the Trade and Merchanise Marks Act for cancellation of the registered trade mark No. 374796 in Class-Ill. Notice was issued on the said petition. The said notice was served on the respondents and a Counsel appeared on behalf of respondents 1 to 3. At the request of Counsel who appeared for respondents 1 to 3 time was granted to file the power of attorney and the reply by order dated 24th August, 1994. However, the power of attorney came to be filed only on behalf of respondent No. 3. The Registry of this Court took notice of the same and passed an order on 23rd January, 1995 directing for filing of reply by the respondents. However, there after none of the respondents appeared nor filed any reply. On 1st December, 1995 an order was passed by this Court that despite service no one was present on behalf of the respondents and, therefore, the matter was ordered to be proceeded ex parte as against the respondents. At the request of Counsel for the petitioner, permission was granted to lead evidence by filing affidavit. Accordingly, affidavit by way of evidence in the aforesaid manner was filed. The matter was listed before this Court for arguments when the Counsel for the petitioner was heard on 20th August, 2002. However, after hearing the arguments on the said petition, order was reserved. On 2nd September, 2002, an order was passed by this Court holding that the registration granted in respect of trade mark PLAZA in favour of respondents 1 to 3 was contrary to the provisions of the Trade and Merchanise Marks Act, 1958 and, therefore, the same was required to be removed and/or cancelled. In terms of the aforesaid finding an order was issued directing the respondentNo. 4 to remove and cancel the registered trade mark No. 374796 in Class-Ill and to rectify the Register of Trade Marks in terms of the observations made therein.

(2.) An application came to be filed on behalf of respondents 1 and 2 and Smt. Neena Oberoi, widow of Mr. Virender Kumar for herself and her minor children and partnership firm Plaza Cosmetics (India). The said application was filed in this Court on 2nd January, 2003. The said application is shown to have been filed under Order 9 Rule 13 read with Section 151 of the Code of Civil Procedure. Along with the said application another application under Section 151 of the Code of Civil Procedure was also filed praying for stay of operation of the aforesaid judgment and decree dated 2nd September, 2002. The aforesaid two applications are registered in this Court as LA. Nos. 49/2003 and 50/2003 respectively.

(3.) A reply is filed by the petitioner as against the application filed by the respondents 1 and 2 under Order 9 Rule 13 read with Section 151 of the Code of Civil Procedure enclosing therewith certain documents which shall be considered and referred to at the appropriate stage.