CADILA HEALTHCARE LIMITED Vs. UNION OF INDIA

JUDGEMENT

(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 & 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.