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TMI Blog1934 (12) TMI 20X X X X Extracts X X X X X X X X Extracts X X X X ..... in the specification. The learned Judge observed in his judgment that pending the decision of this application, the Controller: has undertaken not to proceed with the matter . The hearing before the Controller had been protracted owing to the fact that the petitioners obtained time to file affidavits by experts in England, or to call such experts. Eventually they elected to file affidavits, and the Controller directed them to be ready with their affidavits and witnesses on March 20, 1934. The learned Judge next observed that on March 22, the opposer was about to close his case, and the petitioners, apart from interposing a witness, had not opened their case. After considerable discussion on that day the Controller made an order that the applicants must file their affidavits by March 28, and that the opposer must file any affidavits in reply ten days thereafter These orders seem to show that the Controller assumed, from what had already taken place, that the applicants did not intend to call witnesses other than the one whose evidence they had already interposed, and that otherwise they intended, to rely on affidavits. 2. The learned Judge observed, and I think it is a fair obs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ties, but apparently there was no such agreement. The reason given for the refusal of the second subpoena was that Mr. Davar was the patent agent for the opposer, and was in the position of a Pleader under Section 126 of the Evidence Act and, therefore, privileged. The facts show that Mr. Davar was duly appointed by the opposer to act for him as agent in the proceedings before the Controller under the Patents and Designs Act. 4. The learned Judge then proceeded to consider whether the Court had jurisdiction to issue a writ of certiorari or prohibition or a mandatory order under Section 45 of the Specific Relief Act against the Controller, and he dealt with the law on this subject, especially with the fact that under the Patents and Designs Act there was a right of appeal to the Governor-General in Council, and he came to the conclusion that he ought not to issue a writ of certiorari in the circumstances of this case, and that a mandatory injunction would not be effective and, further, in view of the fact that the applicant had a right of appeal, he was unwilling to grant any relief and dismissed the application. There can be no doubt that the issue of writs of certiorari or proh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... certiorari and prohibition, except that the latter may be invoked at an earlier stage. If the proceedings establish that the body complained of is exceeding its jurisdiction by entertaining matters which would result in its final decision being subject to being brought up and quasiled on certiorari, I think that prohibition will lie to restrain it from so exceeding its jurisdiction. 6. I have no doubt whatever that this Court has the right to exercise a similar controlling jurisdiction to that which is exercised by the King's Bench Division in England, over matters arising within the jurisdiction of this Court and over persons or bodies exercising duties within the jurisdiction such as are referred to in the statement which I have just quoted. Before, however, these extraordinary remedies are used, the Court must be sure that they will be effective. 7. Now in this case, after the order had been made by Mr. Justice Remfry, the Controller, before the order had actually been drawn up, proceeded to give judgment. The applicants did not get any specific undertaking from the Controller not to give judgment until this appeal had been heard and decided;, and in fact. They have a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ided', that is to say, by the decree in the Appellate Court. In my opinion, this is the correct view and that was the meaning of the undertaking given by the Controller If that undertaking had been adhered to strictly, the present difficulties would not have arisen. I am satisfied, however, that the breach of this undertaking was not intentional on the part of the Controller. 8. Apart from the considerations with which I have dealt, these extraordinary remedies will not be used by the Court where there is, as described in Section 45 of the Specific Relief Act, another specific and adequate legal remedy, such as a right of appeal. The existence of such a right of appeal, however, is not conclusive, because it may not be adequate, and in some circumstances the remedy given by the issue of such writs may be more speedy and more convenient and less costly. Thus in the case of R. v. North, Ex parte Oakey (1927) 1 K.B. 491 : 96 L.J.K.B. 77 : 136 L.T. 387 : 70 S.J. 1181 : 43 T.L.R. 60, although an appeal was open to an injured party in that case, it was held that on the facts of that case that fact was no ground for refusing prohibition. Lord Justice Atkin at page 506 said as follo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 417, Lord Buckmaster (then Sir S.O. Buckmaster Solicitor-General) said: I always regard an appeal before me strictly as a rehearing, and when it comes to hearing witnesses, it appears to me there is no meaning in an appeal if the witnesses are confined to what they said before. I understand that my predecessors have acted in the same way before as I have. I should certainly admit any evidence on both sides, unless there was some very good reason why I should not. 11. It is to be remembered that the Law Officer in England was in the same position regarding appeals as the Governor-Genexal-in-Council is in India. It is clear, therefore, that the applicants have an adequate remedy given to them by the provisions of the Act, and that they may raise these matters upon appeal to the Governor-General-in-Council, and if it be necessary, a remand may be ordered and further witnesses examined by the Controller, or the case may be ordered to be reheard. 12. A question has been argued at considerable length by both sides, whether the Controller has any discretion to grant or refuse the issue of these subpoenas. Mr. Barwell has suggested that there is no provision in the Patent Act wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that Section 9. means that the Controller need hear only the applicant and his opponent, there would be no obligation for him to hear evidence even by affidavit. It has not been suggested that the Controller's discretion is such that he may, if he chooses, refuse even to accept evidence upon affidavit. It can see, therefore, no reason for restricting his obligation to that of hearing the parties and of considering such affidavits as they may file. It must extend to the evidence of witnesses if the party chooses to call them. We know that in practice, in the great majority of such cases, evidence is given by witnesses and especially by expert witnesses. But the point raised by Counsel for the opponent was, that there was no obligation upon the Controller to allow such evidence to be given, but that Section 65 of the Act gave him the powers of a Civil Court, and, therefore, if be chose to hear viva voce evidence he could do so and had the power to administer oaths and enforce the attendance of witnesses. 14. If, therefore, it is obligatory upon the Controller to hear viva voce evidence, if tendered by either of the parties, it seems to follow that he cannot refuse to issue su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt in Court before the final disposal on the suit. The Court may in either of these, cases refuse to adjourn the hearing for the attendance of the witnesses, but it has no power to, refuse to issue summonses. The only case in which the Court has power to refuse to issue summonses is where the application is not made bonafide. In such a case the Court may, in the exercise of its inherent power to prevent the abuse of its own process, refuse to issue. the summons. In the case of Abdul Bari v. Hrishikish Mittra AIR1929Cal459 , the late Sir B.B. Ghose described the function of the Civil Court in issuing summonses as. Akin to that of a. post office and it has no power to refuse issue of such summonses. In the case of Gora Ghana Ghose v. Raj Koomar Dass 5 W.R. 111, it was held that although a party to a suit may not be entitled as of right to ask for a postponement to enable him to procure the attendance of his witnesses, yet, when the trial of the case is delayed, the Court has no discretion to refuse an application for summonses for witnesses at any time before the case is tried. 16. In the case of Huree Dass Bysack v. Afeer Moazzum Hossein 15 W.R. 447 at p. 448, it was held tha ..... X X X X Extracts X X X X X X X X Extracts X X X X
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