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TMI Blog1957 (2) TMI 59X X X X Extracts X X X X X X X X Extracts X X X X ..... Pai being heard in the matter contending that Mr. Pai had no right of audience before the Deputy Registrar of Trade Marks. The matter being of considerable importance to all Registered Trade Marks Agents, was argued at great length before the Deputy Registrar of Trade Marks. Quite a number of days were spent in canvassing the rival points of view before the Deputy Registrar of Trade Marks. Ultimately on 11-7-1956 the Deputy Registrar of Trade Marks delivered a considered judgment holding that Mr. Pai, who was a registered trade marks agent was entitled to be heard. from that decision the petitioners have come by way of appeal to the High Court. 2a. The main question that arises for consideration is whether a registered trade marks agent is entitled to plead before the Registrar of Trade Marks under the provisions of Section 80 of the Trade Marks under the provisions of Section 80 of the Trade Marks Act. Section 80 of that Act runs as follows: Where by or under Act any act other than the making of an affidavit, is required to be done by any person, the act may, subject to prescribed conditions or in special cases with the consent of the Central Government, by done, in lieu of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... acting, as the case maybe, on his behalf, it has bene held that a constituted attorney has no right of audience in Court as the right of audience or ac tin or to any Court . He says that the same meaning must be given to the word act: as appearing in Section 80 as was given by the Court in its decision (A). His objections to the Judgment of the Deputy Registrar are three in umber and they may be summed up in his own words as follows: (1) The word 'act' in Section 80 does not confer the power to plead; (2) pleading before the Registrar is not an act which is required under the Act; and (3) an agent is debarred from pleading in view of the provisions of Section 9 of the Bombay Pleaders Act read with Section 3 of the Trade Marks Act. 3. In dealing with the first argument advanced by Mr. Vaidya, one has to observe that in construing an Act one has to bear in mind the scheme of the Act and the purpose for which the Act was passed. It is sometimes dangerous to construe the language of one Act having regard to the construction placed by the Court on the language of another enactment. So far as Section 80 is concerned, it refers to any act, other then the making of an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... provision contained in Section 80; that there is no reference to any procedure in Section 80 and that Section 80 cannot be son construed as to empower a registered trade marks agent to plead before the Registrar. No doubt Section 80 is not explication it steams. I have to consider what provisions are required to be done by any person by or under the Trade Marks Act before I come to the conclusion that a trade marks agent has a right to plead before the Registrar. In this connection, it would be useful to examine some of the provisions contained in the Act and the Rules framed thereunder. Section 15(4) of the Act provides as under: 15(4). If the applicant send such counter-statement, the Registrar shall serve in the prescribed manner a copy thereof on the persons giving notice of opposition, and shall, after hearing the parties, if so required and considering the evidence, decide whether subject to what conditions or limitation if any, registration is to be permitted. Section 70(c) provides as under: 70(c). The Registrar shall not exercise any power vested in him by this act or the rules made thereunder adversely to any party duly appearing before him without to any pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... audience in Court. The Bar Councils Act and the Bombay Pleaders Act are some such enactments. Having considered the scheme of the Order the conclusion arrived at was that the word 'act appearing there was not such as would include the act of pleading, and w as intended to cover, only such acts as are capable of being done in the act of acting for a litigant. The word 'act' in Order III, Rule 1 is preceded by the words appearance and application. The terms act' there appears to have been used in the technical sense and not in the ordinary sense as being referable to any action by any party. The same cannot be said of t he word 'act' as used in Section 80 of the Trade Marks Act. There is nothing to control the meaning of the word 'act' as use din the said Section 80. It is referable to all kinds of act which any person is required to do by or under the Trade Marks Act. It may be the act of making an application; it may be t he act of filing an affidavit; it may be the act of leading evidence; it may be the act of pleading before the Registrar in support of the application. As the word used there was wide enough to cover all these activities and it w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ir Lordships observes as follows: If the appellate Court requires - which plainly mens needs, or finds needful- any document to be produced or any witness to be examined to enable it to pronounce judgment or for any other substantial reason, the appellate Court may alow such evidence to be produced, or document to be received or witness to be examined. This passage in the judgment relied upon by Mr. Vaidya hardly supports the petitioners; if anything it helps the respondent. The Privy Council there has construed the word requires as plainly meaning needs or finds needful . If the word required as appearing in Section 80 is substituted by the word needed or found needful , the meaning would become clear beyond doubt. In that event if by or under the Trade Marks Act, 1910, if he act of pleading is needed or found needful to be done by any person, then that act could be done by his fully authorised agent being a legal practitioner or a registered trade marks agent. This would dispose of the second argument advanced in this case. 7. Dealing with the third argument advanced in this case, it is necessary to refer to the provisions of Section 9 of the Bombay Pleaders ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... C 275 (D). Lord Sankey L.C., in delivering the judgment of their Lordships observes at page 296 as follows: The authorities are clear to show that there are tribunal with many of the trappings of a Court which nevertheless, are not Courts in the strict sense of exercising judicial power. At page 297 the observations are as under: In that connection it may be useful to enumerate some negative propositions on this subject: 1. A tribunal is not necessarily a Court in this strict sense because it gives a final decision. 2. Nor because it hears witnesses on oath. 3. Nor because two or more contending parties appear before it between whom it has to decide. 4. No because it gives decisions which affect the rights of subjects. 5. Nor because there is an appeal to a Court. 6. No because it is a body to which a matter is referred by another body. At page 298 it is further observed as under: An administrative tribunal may act judicially, but still remain an administrative tribunal as distinguished from a Court strictly so-called. My attention has been drawn to a decision reported in re National Carbon Co., Incorporated AIR 1934 Cal 725 (E), where the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he would have to consider whether any proceedings concerning the trade mark would be pending before a High Court, other than the High Court at Bombay, or a District Court within the jurisdiction of a High Court other than the Bombay High Court at the time when an appeal from his decision may be filed, an event which no one can foresee. His decision may turn out to be right or wrong having regard to a future unpredictable event. There would be endless confusion if such an argument is accepted. I do not think I can infer from the definition of the expression Court subordinate to the High Court appearing in Section 2 of the Bombay Pleaders Act, 1920 that the Registrar is constituted a Court within the meaning of that Act. 9. Having regard to the view which I have taken of the provisions of Section 9 of the Bombay Pleaders Act, 1920, it is not necessary for me to consider what would be the effect of Section 3 of the Trade Marks Act, 1940 in a case where the provisions of another enactment conflict with the provisions contained in Section 80. It was urged that in the event of a conflict between section 9 of the Bombay Pleaders Act and Section 80 of the Trade Marks Act, the Bombay P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s not a Court and that the provisions of Section 9 of the Bombay Pleaders Act are of no assistance to the petitioners. 10. There is one more point which I may mention. The respondent in his affidavit in reply has taken the contention that no appeal lies from the decision actually given by the Deputy Registrar of Trade Marks under the provisions of Section 76 of the Trade Marks Act, 1940. That point has, however, not been pressed before me by Mr. Sava ksha. 11. In may view the conclusion to which the Deputy Registrar of Trade Marks has come to is sound. In the result, the appeal is dismissed. 12. Mr. Vaidya for the petitioners has urged before me that in this case costs should not follow the event as the petitioners were litigating the question for the benefit of legal practitioners in general, and that the fair order to make would be that each party should bear its own costs. Mr. Shava ksha presses for costs. I do not think I can accede to the request of the petitioners' Advocate in the is connection. The petitioners have brought this matter before me by way of appeal and they must bear the risk of costs in the event of the appeal not succeeding. I order that the appel ..... X X X X Extracts X X X X X X X X Extracts X X X X
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