9911796707
TMI Blog1994 (10) TMI 326X X X X Extracts X X X X X X X X Extracts X X X X ..... March 17, 1992 and the appeal against the impugned order was filed on May 1, 1992. 2. It is the case of the appellant that the appellant had diligently and in a bona fide manner pursued the remedy of review and the period spent in pursuing the aforesaid remedy ought to be excluded in computing the period of limitation for filing the appeal. It was further pleaded that the appellant is based in United States of America and had appointed Crawford Bayley and Co.. Solicitors and Advocates, at Bombay for pursuing the trade mark cases on its behalf and after the impugned order dated October 25, 1991, was received, there took place delay in filing the appeal 35 it took time for getting necessary material and instructions from the appellant for filing the review petition and thereafter for filing the appeal. 3. The application seeking condensation of delay has been strongly contested by the respondent. I have heard the arguments in detail for deciding this application. Before I deal with the various contentions raised before me, I may refer briefly to the background of the litigation. As far back as in May 12, 1959, the appellant had got registered Colgate Dental Cream label showing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under the special or local law. So, it cannot be disputed with any stretch of reasoning that Section 5 read with Section 14 of the Limitation Act can be invoked for seeking condensation of delay in filing the appeal under Section 109 of the Trade and Merchandise Marks Act. 7. The learned counsel for the respondent has contended that the impugned order has been passed by a quasi judicial authority which is not a Court and thus, Section 5 and Section 14 of the Limitation Act cannot be invoked. There is no merit in this contention. The appeal under Section 109 of the Act lies to the High Court which is admittedly a Court for purposes of Limitation Act. The period of limitation prescribed for filing the appeal is 90 days. The High Court can, for sufficient reasons as mentioned in Section 5 of the Limitation Act, condone the delay in filing the appeal. The learned counsel for the appellant has argued that in law if this Court is to hold that the appellant had diligently and in a bona fide manner availed of the remedy of review then in view of the principles laid down in Section 14 of the Limitation Act, this Court can condone the delay in filing the appeal in the manner that the per ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is in addition to the remedy of appeal. If the review has been diligently and in a bona fide manner pursued, there is no reason as to why the principle of Section 14 of the Limitation Act could not be made applicable by analogy to the provisions of Section 5 of the Limitation Act. At any rate, the judgment of Privy Council is very clear on this point. I need not say anything more. The Privy Council has based its judgment on another Privy Council judgment given in Dry Indar Singh v. Lala Kanshi Ram, AIR 1917 PC 156. 11. The learned counsel for the respondent has referred to Hamida Bibi v. Fatima Bibi, AIR 1918 All 180. This judgment is on a different aspect. In the said case, a suit was brought before the Judge, Small Cause Court. The Court directed the return of the plaint for presentation to a proper Court. The plaintiff refused to take back the plaint and lodged a revision. The revision was dismissed and three months after dismissal of the revision the plaintiff asked for the return of the plaint. The Court found that for a period of three months the plaintiff has not shown that the plaintiff was acting with any due diligence. So, the Court refused to condone the delay of thr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act, the principle of Section 14 should be applied by analogy. A Division Bench of the Madras High court in the case of Sri Rajah Tyade Pusapati Simhadriraju Dakshinakavata Dugarajulum Garu v. Unlimited Aryan Bank, Vizagapalam AIR 1937 Mad 357, also held that the principle of Section 14 of the Limitation Act is that if and so long as a person has been bona fide and with due diligence seeking the relief that he was entitled to in a Court which he believed to be a Court competent to grant him that relief, he ought not to be penalised for having instituted that action in the wrong Court, 15. In Ramlal v. Rewa Coalfields Ltd., , the Supreme Court has clearly laid down that the failure of the appellant to account for his non-diligence during the whole of the period of limitation prescribed for the appeal does not disqualify him from praying for the condensation of delay under Section 5. In the said case, the appellant had not taken any step diligently for filing the appeal within the whole period of limitation but took steps for filing the appeal only on the last day of limitation on which date he fell ill. It was held that his want of diligence till the last day of limitation wo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xcluded on the analogy of principle embodied in Section 14 of the Limitation Act and if after excluding such time the appeal is within period of limitation that would constitute sufficient cause within the meaning of Section 5 of the Limitation Act. Reliance is placed on various previous Privy Council judgments already referred by me above. 18. The learned counsel for the respondent has made reference to Commissioner of Sales Tax, U. P. v. M/s. Parson Tools and Plants, Kanpur, , wherein it has been held that having regard to the context of sub-section (2) of Section 14, the word 'Court' signifies a Court in strict sense and does not include an authority who acts as a tribunal or a quasi judicial tribunal and may be regarded as a Court in the wider sense of the term. However, the Full Bench of the Allahabad High Court has held that Section 14(2) of the Limitation Act applies to the appeal which is brought under Section 9 of the U. P. Sales Tax Act. In this very judgment, it was held that proceedings before the Sales Tax Officer would be civil proceedings to come up within the consideration of Section 14(2) of the Limitation Act. If that is so, the proceedings being done b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... diction in Section 14 aforesaid has to be determined according to the rule of Ejusdem Generis. According to that rule, they take their colour from the preceding words defect of jurisdiction which means that the defect must have been of an analogous character barring the Court from entertaining the previous suit. 22. The learned counsel for the respondent has contended that the Registrar under the Act had the jurisdiction to entertain the review petition and so, the review petition has not failed on account of lack of jurisdiction on the part of the Registrar or any other cause of a like nature. This contention is without merit because perusal of the order dismissing the review petition shows that the Registrar has held that there was no grounds made out in the review petition which could give the jurisdiction to the Registrar for reviewing the order. So, the dismissal of the review petition is of the kind which pertained to defect of jurisdiction. It is not necessary that there should be any inherent lack of jurisdiction in entertaining the review petition. The jurisdiction to entertain the review petition may be existing in the particular Court or authority but if the review ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n analogy to show existence of sufficient cause as has been laid down in various judgments discussed above. 27. Zafar Khan v. Board of Revenue, U. P., , the Supreme Court has reiterated the legal position that the expression defect of like nature appearing in Section 14 of the Limitation Act would take the hue from the expression defect of jurisdiction in view of the principle of adjusted generis. 28. The Supreme Court in Collector, Land Acquisition, Anantnag v. Mst. Katiji, , has laid down the necessity of the Courts adopting the liberal and justice oriented approach in considering the question of extant of sufficient cause for condoning the delay under Section 5 of the Limitation Act. The Supreme Court has laid down as follows (at p. 1354 of AIR): 1. Ordinarily a litigant does not stand to benefit by lodging an appeal late. 2. Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties. 3. Every day's delay must be explained does not mean that a ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
