HIRALAL BANJARA Vs. BASHIRAM SHARMA

JUDGEMENT

(1.) This is a reference made by the Controller of Patents under the provisions of Section 64 (3), Patents and Designs Act, 1911. The history of the events that have led to the reference is as follows: One Hiralal Banjara, to whom I will henceforward refer as the applicant," obtained a patent dated 12 July 1928, in respect of a machine for removing the huska and shells from mahsoor. No other person was registered as a proprietor of this patent until 9 October 1937, when one Babu Ram Jainy was so registered. The circumstances which enabled Babu Ram Jainy to obtain registration were as follows: A certain person named Radhakissen obtained a money decree in the Court of Small Causes against the applicant. In execution of this decree he purported to attach and bring to sale the applicant's rights under his patent, which were sold to Babu Ran Jainy on 20 September 1937. On 24 November 1937, Babu Ram Jainy assigned the patent to Bashiram Sharma, to whom I will refer as the "respondent," and who obtained registration on 15 January 1938. On the same day one Abdulla Miah got himself registered as a licensee under the respondent in virtue of an agreement dated 22nd November 1937.

(2.) There were various proceedings by the applicant in the Court of Small Causes for having the sale to Babu Ram Jainy of 20 September 1937 set aside. The Small Cause Court declined to set aside the sale, but this Court in exercise of its revisional powers under Section 115, Civil P.C., set it aside on 2 June, 1938. On 30 June 1938, the applicant wrote to the Controller of Patents calling upon him to exercise his powers under Section 64 of the Act, by expunging the entries which showed Babu Ram and the respondent as proprietors, and Abdullah Miah as licensee. This application has been referred to the High Court under Section 64(3). It has been argued that the Controller has no power to refer this application for rectification, The scheme of Section 64 is as follows. Under Sub-section (1) the Controller may on the application of any person aggrieved make such order for making, expunging or varying an entry as be thinks fit, and rectify the register accordingly. By Sub-section (3) an appeal shall lie to the High Court from any order of the Controller under this Section; and the Controller may refer any application under this Section to the High Court for decision, and the High Court shall dispose of any application as referred.

(3.) So far it is plain sailing. But a difficulty is certainly occasioned by Sub-section (5), which says that: Nothing in this Section shall be deemed to empower the Controller (a) to rectify the register of patents or to decide any question relating to a patent, otherwise than for the purpose of correcting a mistake of fact apparent from a reference either to the patent itself, or to some order of a competent authority made under any other provision of this Act, or (b) to make any such order canceling the registration of a design as is provided for in Section 51-A.