GANGA ENGINEERING WORKS Vs. GANGA FOUNDRY

JUDGEMENT

(1.) This revision is directed against an order in I.A. No. 94 of 1994 in O.S. No. 93 of 991. That application is for stay of all further proceedings in the suit, O.S. No. 93 1991 field under S. 111 of the Trade and Merchandise Marks Act, 1958 (hereinafter referred to as 'the Act'). It was the contention of the petitioner that an application for rectification had been filed in the High Court under Section 56 of the Act and it was posted to 30-6-1994. The trial court has dismissed the application taking the view that the provisions of Section 111(2) of the Act have not been complied with by the petitioner herein and he is not entitled to claim the benefit of stay as provided in Cl. (1) of S. 111.

(2.) Learned counsel for the petitioner contends that even before the present application under Section 111 of the Act a prior application was presented in the District Court on 3-4-1992. But it was kept unnumbered .by the District Judge and ultimately it was returned to the petitioner in open court. The petitioner had not pursued to the matter and taken any, steps to get the petition numbered. However, he proceeded to file an application for rectification of the register in this Court on 24-12-1993. Thereafter he filed this I.A. No. 24 of 1994 before the trial Court for stay of further proceedings in the suit.

(3.) Section 111(1) of the Act provides that if the defendant in a suit pleads that the registration of the plaintiff's trade mark is invalid and proceedings for rectification of the register are pending before this Court or the Registrar of Trade Marks, the trial of the suit shall be stayed pending final disposal of such rectification proceedings. The sub-section also provides that if no proceedings were actually pending at the time when issues are trained, the Court is to flame an issue regarding the invalidity of the registration of the mark and adjourn the case for a period of three months from the date of framing of the issues in order to enable the party concerned to apply to the High Court for the rectification of the Register. C l (2) provides that if the party concerned proves to the court that he has made any such application for rectification within the time specified by the court or within such extended time as the Court may for sufficient cause allow, then also the trial of the suit shall stand stayed. Cl. (3) provides that if no such application is made within the time so specified or within such extended time as the court may allow, the issue as to the validity of the registration of the trade mark concerned shall be deemed to have been abandoned and the court shall proceed with the suit in regard to the other issues in the case.