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TMI Blog1951 (8) TMI 22X X X X Extracts X X X X X X X X Extracts X X X X ..... vit. At the hearing before the Registrar, the respondent challenged the panchnama as a forgery. He contended that it did not bear his signature. The learned Registrar came to the conclusion that the panchnama was a genuine document, but he held that the provision of the panchnama militated against public policy inasmuch as the appellant's father permitted the respondent to use the trade mark for an indefinite period and acquire a reputation in the market, and then permitted the appellant's father to revoke the licence at any time he so desired. The view he took was that, if the revocation was within a reasonable time, the position might be different, but, as the position stood, it was against public policy. He, therefore, held that, notwithstanding the proof of the panchnama, as the respondent had proved user of his trade mark in certain districts in the State of Madras, he therefor ordered registration of the mark limited to certain districts. From this order of the Registrar the appellant appealed to the High Court. That appeal came before Coyajee J. and the appeal was dismissed on the ground that it was barred by limitation. The respondent also appealed from the order of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he learned Judge seems to have been under the impression that the Registrar merely went on the pleadings and raised a presumption against the respondent and came to the conclusion that the document was proved because the respondent had failed to take any objection to the document when it was disclosed in the affidavit of the appellant. This is not wholly borne out by the judgment of the Registrar, because, although the Registrar does say I do not think it would be fair to the opponent if I were to allow the applicant at the hearing to deny having signed the panchnama, as the issue was not raised in any part of his defence , still he does go on, in fact, to consider the evidence which was actually led as to the signing of this document There, fore, although this particular fact might have weighed with the Registrar, it was not the only fact on which his judgment was based. But, as I said before, the position is that the respondent has further evidence to lead which he has not led before the Registrar; and we do not think, taking everything into consideration, that it would be proper for as, sitting in appeal, to interfere with the order of remand made by the learned Judge, as in do ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , in this case, when the panchnama was relied upon by the opponent in his affidavit, it was incumbent upon the applicant to deal with that document. The learned Judge points out that there was some discrepancy as to the date of the document as mentioned in the affidavit and the actual date of the document which was proved before the Registrar. But apart from this discrepancy, the affidavit of the opponent does set out the terms of the document and its effect, and it is undoubtedly significant that the applicant did not in any way deal with that document. He challenged the document for the first time when the matter came before the Registrar and then the Registrar decided that evidence should be led. All the evidence with regard to this document in the first instance should have been by affidavit and if the case of the applicant was that he had never put his signature to any such document and that, if his signature had appeared on any such document, it was a forgery, he should have set out that case in his affidavit in support of his application. Therefore, we cannot say that the Registrar was entirely in error when he attached considerable importance to the fact that the applica ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m the preliminary decree; and the Privy Council held that limitation ran from the preliminary decree and not from the Order-in-Council. The reason why the Privy Council came to this conclusion was that there was no judicial determination of the matter by he Majesty in Council, [5] Mr. K. T. Desai, on behalf of the respondent has approached the matter from an entirely different paint of view. Mr. Desai has contended that, under Section 76 of the Trade Marka Act, an appeal la provided, and that appeal is to be preferred within the period prescribed by the Central Government. Mr. Desai says that right of appeal is the creature of statute and that right cannot be expanded; and, therefore, according to Mr. Desai, the only right of appeal that the appellant had was the right which he exercised when he went before Mr. Justice Coyajee; and that appeal being out of time, he cannot prosecute the subject-matter of that very appeal by means of a cross objection. Now, under Section 76, Sub-clause (3), it is provided that, subject to the provisions of this Act and of rules made there under, the provisions of the Civil Procedure Code, 1908 shall apply to appeals before a High Court under this A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... affect his right, the question is whether the dismissal of the appeal not on merits would effect his right to cross-object under Order 41, Rule 22. [6] Now, Mr. Desai contends that as there ia only one right of appeal given under Section 76 and that right has been exercised, we should not permit the appellant to exercised that right again by means of cross objections. Now, what is overlooked in advancing this argument is the difference between a right and a remedy. The respondent had a right of appeal given to him under Section 76. The remedy for exercising that right was to prefer an appeal to Mr. Justice Coyajee. That remedy is now barred, But if another remedy is now open to him to exercise the same right, there is no reason why he should not avail himself of that remedy. Let us put it in this way. An appellant has two remedies by which he can bring his appeal before the appellate Court: he may either appeal or he may cross-object. If the remedy by way of appeal is barred, the remedy by way of cross-objections may still be open to him and may not he barred. And in this case, the respondent availed himself of the remedy by way of appeal. He failed in that remedy, and now he se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in favour of the appellant. Then there is another judgment of the Allahabad High Court on which reliance has also been placed, and that is in Parbhu Dayal v. Murli Dhar A.I.R. (11) 1924 ALL. 867. The facts there were that the defendant in the suit filed an appeal to the District Court. Then he applied to withdraw his appeal and on that application his appeal was dismissed. A day after this dismissal, the plaintiff filed his cross-objections. Those cross objections were also dis-missed. Then the plaintiff filed an appeal against the judgment of the trial Court, and the defendant filed cross-objections. And the learned District Judge held that the defendant's cross-objections were barred. When the matter came in second appeal before the Allahabad High Court, that Court considered two questions. One was whether the cross-objections of the defendant were properly held to be barred. And Mr. Desai says that here also the cross objections were dismissed without being heard on merits, and, therefore, the same principle should apply to a dismissal of the appeal by Coyajee J. on the ground of limitation. [8] Now, if one looks at the judgment, it is clear that the view taken by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , The Registrar will also consider again whether his view that the provision of the panchnama is against public policy is justified in the light of the authorities which Mr. Palkhiwalla wanted to cite before us. Mr. Palkhiwalla's content on was that the learned Registrar did not consider this aspect of the question in the tight of legal principles and the authorities, and that he should be asked to reconsider this question. [l0] Save as indicated above in this judgment, there will be no order on the appeal. [11] On the question of costs as far as the parties are concerned, the learned Judge made the costs of the petition before him to abide the result of the application and he dismissed the cross objections of the appellant with costs. We will vary that order and provide that both the costs of the petition and the coats of the cross-objections will abide the result of the application. With regard to the costs of this appeal, there will be no order as to costs of the appellant and the respondent. [12] The nest question is what order as to coats we should make with regard to the Registrar. Now, there are certain cases in which the Regis-trear should appear and can legiti ..... 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