MAHESH GUPTA vs REGISTRAR OF TRADEMARKS & ANR.

2024-03-13 Information

* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment reserved on: 09 January, 2024
Judgment pronounced on: 13 March, 2024

+ LPA 429/2023, CM APPL. 24694/2023 (Stay) & CM APPL. 24697/2023

MAHESH GUPTA ….. Appellant

Through: Mr. Akhil Sibal, Sr. Adv. with Mr. Ankit Arvind, Mr. Ankur Sangal, Ms. Asavari Jain and Mr. Kiratraj Sadana, Advs.

versus

REGISTRAR OF TRADEMARKS & ANR. ….. Respondents

Through: Mr. Harish Vaidyanathan Shankar, CGSC with Mr. Srish Kumar Mishra, Mr. Sagar Mehlawat, Mr. Alexander Mathai Paikaday, Mr. M. Sriram & Mr. Krishnan, Advs. for R-1.
Ms. Swathi Sukumar, Mr. Pratyush Rao, Mr. Naveen Nagarjuna, Mr. Rishubh Agarwal and Mr. Ritik Raghuwanshi, Advs. for R-2.

+ C.A. (COMM.IPD-TM) 130/2021

SAP SE ….. Appellant
Through: Mr. Peeyoosh Kalra, Mr. C.A. Brijesh, Mr. Rishabh Thakur and Ms. Pragati Agrawal Advs.
versus

SWISS AUTO PRODUCTS & ANR. ….. Respondents
Through: Mr. Sanjeev Singh and Ms. Suman Gupta, Advs. for R-1.
Mr. Harish Vaidyanathan Shankar, CGSC with Mr. Srish Kumar Mishra, Mr. Sagar Mehlawat, Mr. Alexander Mathai Paikaday, Mr. M. Sriram & Mr. Krishnan, Advs. for R-2.

CORAM:
HON’BLE MR. JUSTICE YASHWANT VARMA
HON’BLE MR. JUSTICE DHARMESH SHARMA

J U D G M E N T

YASHWANT VARMA, J.

S. No.
Particulars
Paragraph Nos.
A.
INTRODUCTION
1 – 7
B.
BRIEF FACTUAL BACKGROUND
8-15
C.
SUBMISSIONS OF SAP SE
16-22
D.
SUBMISSIONS OF THE FIRST RESPONDENT – SWISS AUTO PRODUCTS IN THE SAP SE REFERENCE
23-25
E.
SUBMISSIONS OF MAHESH GUPTA
26-35
F.
SUBMISSIONS OF THE SECOND RESPONDENT IN THE MAHESH GUPTA APPEAL
36-46
G.
ANALYSIS OF THE TRADEMARK STATUTORY FRAMEWORK
47-74
H.
THE IMPACT OF THE PHRASE NOT EXCEEDING
75-82
I.
THE QUESTION RELATING TO APPLICABLE RULES
83-98
J.
EPILOGUE
99-106

A. INTRODUCTION

1. The present reference has been placed before us consequent to a learned Judge of the Court expressing a doubt with respect to the correctness of the view expressed in Mahesh Gupta v. Registrar of Trademarks & Anr1 and which forms subject matter of challenge in the connected LPA 429/2023. The learned Judge has in terms of the order dated 03 July 2023 posed the following questions for the consideration of this Bench:
i) Whether the rules dealing with procedural aspects, including those relating to the filing of evidence introduced by the Trademarks Rules, 2017, would apply retrospectively to proceedings initiated under the Trademarks Rules, 2002.
ii) Whether failure to file evidence in support of the trademark application would tantamount to anything done under the Trademarks Rules, 2002, which is saved by Rule 158 of the Trade Marks Rules, 2017 and would continue to be governed by the Trademarks Rules, 2002.
2. The questions themselves arise in the backdrop of Rules 45 and 46 of the Trade Mark Rules, 20172 and which speak of a deemed abandonment of the right to adduce evidence in support of opposition and in support of the trade mark application, as a consequence of a failure to comply with the timelines prescribed therein. Rule 45 enables an opponent to lead evidence in support of opposition subject to the prescription that the same must be filed within two months from the service of a copy of the counter statement. In terms of sub-rule (2) thereof, if an opponent takes no action in terms of the substantive provision made in sub-rule (1), it shall be deemed to have abandoned the opposition. A similar right to lead evidence is conferred upon the trademark applicant while responding to evidence in support of opposition. Here too, the trade mark applicant is enabled to adduce evidence in support of the application and thus seek to overcome the opposition which stands mounted. However, the applicant faces a similar specter of deemed abandonment if evidence is not submitted within the time prescribed.
3. According to the opinion rendered by the learned Judge in SAP SE, the 2017 Rules have introduced procedural changes and would thus apply retrospectively to ongoing proceedings including those which may have been initiated under the Trade Marks Rules, 20023. The learned Judge in SAP SE while framing the order of reference has essentially held that actions validly initiated under the 2002 Rules would be governed by the 2017 Rules upon their promulgation. The learned Judge was further of the opinion that since the decision taken upon SAP SEs application to lead evidence in support of the trademark application came to be rejected in 2019 and thus at a time when the 2017 Rules had come into force, it should have been examined as per the 2017 Rules. The aforesaid foundational premise is based upon the concept of deemed abandonment having been introduced only by virtue of the 2017 Rules and the applicant there having avoided abandonment bearing in mind the nature of the representation which was submitted to the Registrar of Trademarks4. The learned Judge has in this regard held as follows:
23. The upshot of the above discussion is that due to the procedural nature of 2017 Rules, the Examiner has erred by applying the 2002 Rules on the date when the same had been repealed. The 2017 Rules do not contain any clause that provides that the pending proceedings are unaffected and are to continue as per the 2002 Rules. In absence of any saving clause under the 2017 Rules, in the opinion of the Court, the Registrar ought to have decided the matter by taking into account the provisions of Rule 46 of the 2017 Rules and the provisions of Rules 51 of the 2002 Rules would not apply.
24. On this issue, the Court further takes note of the decision of a Coordinate Bench of this Court in Mahesh Gupta v. Registrar of Trademarks and Anr., which was delivered after the present case was reserved for judgment. In the aforesaid decision, the Court has taken a view that the proceedings which were initiated under 2002 Rules would have to be adjudicated under the said Rules. Analysing Rule 158 of 2017 Rules, it was held that the expression “without prejudice to anything done under such rules before the coming into force of these rules'”, would include the filing of evidence in support of the opposition by the Appellant therein and would thus be governed by the 2002 Rules..
25. The afore-noted decision does not take note of the judgments of the Supreme Court regarding the retrospective application of procedural amendments. Furthermore, Rule 158 categorically provides that the 2002 Rules are repealed. This means that 2002 Rules no longer have any legal force or effect from the time when 2017 Rules came into effect. The expression without prejudice to anything done under such rules before the coming into force of these rules, means that any actions taken, decisions made or rights granted under the 2002 Rules, are still valid and will not be affected by the repeal. In other words, the repeal of 2002 Rules, does not erase of invalidate what has been done under them prior to the coming into force of 2017 Rules. Further, the expression before the coming into force of these rules, specifies the timeline that the clause applies to, which is to any time period before the 2017 Rules came into force. As discussed above, generally, procedural amendments are intended to apply retrospectively unless there is a clear indication to the contrary. The saving expression in the clause noted above is designed to ensure that actions taken, decisions made or rights granted under the repealed rules (2002 Rules) are preserved and remain unaffected by the repeal. The clauses would apply to actions completed or rights accrued under the 2002 Rules. The phrase anything done under such rules, typically refers to completed actions or established rights. In the instant case, the significant action taken under the 2002 rules was filing of the trademark application or submitting the evidence. These actions remain valid and would not be invalidated by the coming into force of 2017 Rules. However, the decision declining Appellants evidence because of delay, taken in 2019, is a separate action, at which point of time 2017 Rules were subsisting and therefore, the decision should have been guided by the 2017 Rules. The saving clause protects what was done under the 2002 Rules, but does not dictate that the 2002 Rules continue to govern all aspects of the proceedings after the enforcement of 2017 Rules. Such an interpretation would effectively render the repeal of 2002 Rules meaningless, thereby defeating the intent of replacing the old rules with new ones.
4. As would be apparent from a reading of the aforesaid conclusions as rendered by the learned Judge, the view taken essentially hinges upon the fact that by the time the application for evidence in support of application came to be rejected, the 2017 Rules had come into force. The learned Judge has construed Rule 46 of the 2017 Rules as not only being procedural but also having reduced the rigour with which the timelines stood spelt out in Rule 51 of the 2002 Rules. The conclusions of the learned Judge are based upon firstly Rule 46 of the 2017 Rules, while prescribing the time frame for depositing evidence in support of the application no longer being sacrosanct, or to put it differently, mandating inviolable time lines, coupled with the fact that the trademark applicant had avoided the deemed abandonment by asserting that in case the prayer for extension of time were to be refused, the facts stated in the counter-statement be taken into consideration. The aforesaid conclusions are also founded on the learned Judge being of the opinion that the provisions regarding timelines for filing of evidence are procedural and thus the presumption against retrospectivity not being applicable. The learned Judge also appears to have come to conclude that Rule 51 of the 2002 Rules did not embody the deemed abandonment principle. More fundamentally, the Court came to conclude that Rules 45 & 46 of the 2017 Rules in fact revert the statutory position to that which prevailed under the Trade & Merchandise Marks Rules, 19595.
5. The Mahesh Gupta appeal emanates from an application made seeking extension of time to adduce evidence in support of opposition. That appeal was concerned with Rule 50 of the 2002 Rules and Rule 45 of the 2017 Rules. Although the order which was impugned before the learned Judge had also come to be passed after the 2017 Rules had come into force, the Court held that finality and closure which comes into effect pursuant to the provisions embodied in Rule 50 would attain a quietus- a state of irrevocability so to speak, and which could not be washed away merely by virtue of the promulgation of the 2017 Rules and the repeal of the earlier Rules. It becomes pertinent to note that although the Registrar in Mahesh Gupta had invoked the 2017 Rules to hold that the opponent would be deemed to have given up its right to lead evidence, the learned Judge held that although the 2017 Rules would not be applicable and the Registrar had erred in invoking those provisions, the opponent would in any case have lost the right to adduce evidence in light of the inflexible timelines prescribed under the 2002 Rules.
6. The learned Judge in Mahesh Gupta construed Rule 158 of the 2017 Rules, and in terms of which the 2002 Rules came to be repealed, as not impacting any decisions which were rendered on the anvil of the 2002 Rules holding that the phrase anything done under such rules would indicate all pending applications being continued to be governed and regulated by the 2002 Rules.
7. For the purposes of briefly setting out the backdrop in which the Mahesh Gupta and SAP SE applications came to be examined and disposed of by the Trademark authorities, we deem it apposite to notice the following facts.
B. BRIEF FACTUAL BACKGROUND
8. SAP SE filed an application before the Registrar for registration of the mark SAP under Class 9 on 06 December 1999. The aforesaid application was advertised in the Trade Mark Journal on 01 January 2007. The respondent in that appeal filed a notice of opposition to the said application on 14 August 2007. The Trademark Registry provided SAP SE with a notice of the opposition in terms of a letter dated 12 October 2011 and directed it to file its counter statement within two months. The aforesaid communication is stated to have been received by SAP SE on 24 October 2011. SAP SE on 21 December 2011 submitted its counter statement before the Trademark Registry. A copy of the counter statement is stated to have been forwarded to the respondent by the Registry on 06 June 2013 and was received by it on 09 July 2013. On 11 September 2013, the respondent sought one months further time until 22 October 2013 for filing evidence in support of the opposition. The evidence in support of the opposition is ultimately stated to have been filed on 19 October 2013. A copy of the complete evidence in support of opposition, along with the enclosed annexures was furnished by the respondent vide its letter dated 08 November 2013, which was received by SAP SE on 12 November 2013.
9. On 09 January 2014, SAP SE sought an extension of one month to file its evidence in support of the application. A similar request is thereafter stated to have been made in terms of letters dated 12 February 2014, 11 March 2014 and 09 April 2014. The evidence was ultimately submitted before the Trademark Registry on 09 May 2014 by SAP SE.
10. In terms of the order which stood impugned in the SAP SE appeal and is dated 12 June 2019, the Registrar held that SAP SE was obliged to submit the evidence within three months from the date of receipt of the evidence in support of opposition and thus by 12 February 2014. The Registrar took the position that bearing in mind the language of Rule 51(1) of the 2002 Rules, the Registrar did not stand conferred with either the jurisdiction or the authority to extend time beyond the period of three months. It is the correctness of this view which was questioned before the learned Single Judge.
11. Mahesh Guptas appeal pertained to an application made for leading evidence in support of opposition. The second respondent in that appeal had filed an application for registration of the trademark JKENT under Class 32 on 28 April 1998. A notice of opposition was submitted by Mahesh Gupta on 15 September 2006. This was followed by a counter statement submitted by the second respondent on 12 April 2008. Mahesh Gupta is stated to have submitted its evidence in support of opposition on 10 June 2010. On 11 June 2010, an application was made by Mahesh Gupta for being accorded an extension of time of four months for filing the evidence in support of opposition. That evidence was ultimately submitted in the Trademark Registry on 25 September 2010. On 14 August 2018, a hearing was fixed by the Registrar to consider whether Mahesh Gupta would be deemed to have abandoned the right to lead evidence in support of opposition. It is pursuant to the aforesaid hearing that the Registrar ultimately proceeded to pass the order dated 07 August 2019 holding that since Mahesh Gupta had failed to submit the evidence in opposition within two months from the service of a copy of the counter statement, he would be deemed to have abandoned the same by virtue of Rule 45(2) of the 2017 Rules.
12. While dealing with the challenge raised to the aforesaid order, the learned Single Judge has held as follows:
7. I may observe, at the very outset, that the learend Deputy Registrar has formally erred in law in passing the impugned order under the 2017 Rules. All proceedings before the learend Deputy Registrar, save and except for the passing of the impugned order, on 7th August 2019, took place when the 2002 Rules were in force. The applciation seeking registration, the oppostion thereto, the counter statement filed by way of response to the oppositin and the filing of the evidence in support of the opposition by the appellant along with the application seeking condonation of delay, were all prior to coming into force the 2017 Rules; in fact, much prior thereto.
8. Rule 158 of the 2017 Rules, even while repealing the 2002 Rules, clearly holds that such repeal would be ?without prejudice to anything done under such rules before the coming into force of these rules. In other words, the repeal of the 2002 Rules by the 2017 Rules would, inter alia, be without prejudice to all proceedings which took place in the present case, including the filing of the evidence in support of the opposition by the appellant which, admittedly, was under Rule 50(1) of the 2002 Rules. The repeal of the 2002 Rules by the 2017 Rules cannot, therefore, prejudice the applicability of the 2002 Rules, insofar as the issue of whether the evidence filed by the appellant under Rule 50(1) of the 2002 Rules could be taken on record, is concerned.
9. The dispute has, therefore, to be examined in the light of Rule 50(1) of the 2002 Rules. What has to be seen, therefore, is whether the opposition of the appellant could be treated as having deemed to have been abandoned by applying Rule 50(1) of the 2002 Rules.
xxxx xxxx xxxx
14. To my mind, the view espoused in para 60 of the decision in Wyeth, if accepted, would amount to no less than re-writing of the applicable statutory provisions. Rule 50(1) of the 2002 Rules is even more peremptory, in its application, than Rule 48 of the succeeding 2017 Rules. While providing a period of two months to an opponent opposing an application seeking registration of a trade mark file its evidence after receipt of the counter-statement of the applicant, Rule 50(1) empowers the Registrar to extend the said period only upto one month, specifically using the words ?not exceeding one month. The words ?not exceeding one month are mandatory in their import. The learned Registrar could not, therefore, grant extension of more than one month beyond the period of two months from the date of service, on the opponent opposing the registration of a mark, of a copy of the counter statement. Grant of any further extension would clearly be in the teeth of Rule 50(1).
15. Rule 50(2) is even clearer in its import. It states, in unambiguous terms, that, if the opponent took no action under Rule 50(1) within the time period mentioned therein meaning two months extendable by a maximum period of one month he shall be deemed to have abandoned his opposition.
16. Deemed abandonment of the opposition, therefore, follows as an inexorable statutory sequitur to the failure, on the part of the opponent, in filing the evidence in support of the opposition within the period envisaged in Rule 50(1). Deemed abandonment, therefore, occurs by operation of the statute. Even sans any judicial or quasi-judicial order, therefore, if the opponent opposing the application seeking grant of the trade mark fails to file its evidence in support of the opposition within a maximum of three months from the receipt, by it, of the counter-statement of the trade mark applicant, the opposition would ipso facto be deemed to be abandoned irrespective of whether any order to that effect is, or is not, passed by any judicial or quasi-judicial forum.

13. The Court in Mahesh Gupta significantly observed that the Registrar had erred in trying the application on the anvil of the 2017 Rules. It held that all proceedings on that application had been undertaken while the 2002 Rules were still in force. Mahesh Gupta accordingly holds that those proceedings would in light of Rule 158 of the 2017 Rules be liable to be tried on the basis of the provisions as obtaining under the 2002 regime. It was in the aforesaid backdrop that the learned Judge held that the application seeking to adduce evidence in support of opposition would have to be tried on the basis of Rule 50 of the 2002 Rules, as it existed.
14. While arriving at that conclusion the learned Judge in Mahesh Gupta also had an occasion to examine the decision rendered in Surinder Corporation, U.S.A. vs. Hindustan Lever Ltd & Anr.6 Surinder Corporation had dealt with the issue of whether Rule 50 of the 2002 Rules was mandatory and whether it constructed strict time frames beyond which the Registrar would have no jurisdiction to grant a prayer for extension. Significantly, Surinder distinguished the judgment rendered by a Full Bench of our Court in Hastimal Jain trading as Oswal Industries v. Registrar of Trade Marks & Anr7 and which had while examining Rules 53 of the 1959 Rules held that the said Rule was directory. The learned Judge while penning the opinion in Surinder Corporation had observed that Rules 50 and 51 of the 2002 Rules constituted a stark and evident departure from the position as it existed under the Trade and Merchandise Marks Act, 19588 read along with the 1959 Rules and that Rules 50 and 51 deprived the Registrar of the power to extend time as otherwise prescribed in those provisions. In order to appreciate the issues that stand raised, we deem it apposite to extract the following passages from Surinder Corporation:
8. Reading Rule 50, it is clear that the evidence by way of affidavit in support of an opposition to the registration of a trade mark has to be filed within two months of the service of a copy of the counter-statement on the opponent. This period of two months is further extendable by a period of one month in the aggregate thereafter as the Registrar may on request allow. Clearly, in the first instance, the evidence affidavit has to be filed within two months of the receipt of a copy of the counter-statement. The Registrar may extend this period by a further one month in the aggregate if a request for the same is made in time. Sub-rule (2) of Rule 50 makes it clear that if an opponent takes no action under Sub-rule (1) within the time mentioned therein, he shall be deemed to have abandoned his opposition. It is also interesting to note that Sub-rule (3) refers to the application for extension of the period of one month mentioned in Sub-rule (1). It is also stipulated that such an application has to be made in Form TM-56 accompanied by the prescribed fee before the expiry of the period of two months mentioned therein. So, it is clear that a strict regimen has been prescribed for the filing of evidence by way of affidavit in support of an opposition. A plain reading of the provisions makes it abundantly clear that the evidence has to be filed within two months in the first instance and, if an appropriate application for extension of time is made before the expiry of the period of two months and if such application is allowed by the Registrar, then latest by a further month. In other words, under no circumstances can the evidence affidavit be filed beyond the maximum three months prescribed under the said rule. In case the opponent has not taken steps within the prescribed time, then there is no option left with the Registrar but to deem that the opponent has abandoned his opposition.
xxxx xxxx xxxx

18. From the above extract, it is apparent that the Full Bench was of the view that Rule 53(2) of the 1959 Rules was not mandatory, but merely directory. The Full Bench observed that although the word shall was used in Rule 53(2), that by itself would not indicate that the provision was mandatory. It came to this conclusion specifically because of the expression unless the Registrar otherwise directs used immediately after the word shall. It is in this context that the Full Bench was of the view that the legal fiction created by the word shall was not absolute as it was limited by the words unless the Registrar otherwise directs. Consequently, the Full Bench was of the view that the provisions of Rule 53(2) were not mandatory but directory.

19. The learned Counsel for the respondent No. 1 has urged before this Court that Rule 50(2) of the 2002 Rules must also be interpreted in similar fashion as being directory and not mandatory. This argument has to be rejected. The reason being that the provisions of Rule 53 of the 1959 Rules and Rule 50 of the 2002 Rules are materially different. First of all, in Sub-rule (1) of Rule 50 of the 2002 Rules, the following words have been inserted:
or within such further period not exceeding one month in the aggregate thereafter as the Registrar may on request allow.

20. These words are missing in Rule 53(1) of the 1959 Rules and, therefore, the decision in Hastimal Jain (supra) would not apply to the facts of the present case. The second difference is that the expression unless the Registrar otherwise directs appearing in Rule 53(2) of the 1959 Rules is missing from Rule 50(2) of the 2002 Rules. For this reason also, the decision of the Full Bench in Hastimal Jain’s case would not apply to the present case. The Full Bench had placed great reliance on the expression unless the Registrar otherwise directs to indicate that the provision was directory and not mandatory and secondly that the Registrar had discretion in the matter. But these words are missing in the new avatar of this rule which is to be found in Rule 50(2) of the 2002 Rules. The new Rule 50(2) simply and plainly states that if an opponent takes no action under Sub-rule (1) within the time prescribed therein, he shall be deemed to have abandoned his opposition. The Registrar has no role to play and no discretion in the matter. The entire basis of the Full Bench decision in Hastimal Jain’s case is that the Registrar had been given discretion in the matter as indicated by the words unless the Registrar otherwise directs. This discretion is missing in Rule 50 under the 2002 Rules.
xxxx xxxx xxxx

22. It is, therefore, quite clear that the answer to question No. 1 is that the Registrar does not have the power to extend the time for filing of the evidence affidavit in support of an opposition beyond the maximum period of three months prescribed under Rule 50(1) of the Trade Marks Rules, 2002 and that the answer to question No. 2 is that the non-filing of the evidence affidavit within the prescribed time would by itself lead to the conclusion that the opposition has been abandoned.

23. Lastly, I would like to observe that the Intellectual Property Appellate Board in arriving at the conclusion that it did was under the impression that the Registrar had discretion in the matter and was exercising a discretionary power. This premise is not correct. The provisions of Rule 50(2) are mandatory and the Registrar has no discretion. If the evidence affidavit has not been filed within the time prescribed, the opposition would have to be deemed to have been abandoned. The Registrar has also no discretion in extending the time beyond the maximum period of one month prescribed under Rule 50(1). Therefore, the impugned order passed by the Intellectual Property Appellate Board on 11.3.2005 is set aside and the order passed by the Assistant Registrar dated 20.2.2004 is upheld.

15. Although the decision in Surinder Corporation has been noticed by the learned Judge in SAP SE, the Court held that since the 2017 Rules had reverted the position to that which existed under the 1958 Act and the 1959 Rules, it would be the judgment of the Full Bench in Hastimal Jain and the principles enunciated in that decision which would govern. In SAP SE, the learned Judge spoke of the congruence of the 2017 Rules with the 1958 Act and the Rules framed thereunder. It is the aforesaid divergent opinions and the conflict in views expressed which fall for our consideration.

C. SUBMISSIONS OF SAP SE
16. Mr. Peeyoosh Kalra, learned counsel who appeared for SAP SE advanced the following submissions. According to learned counsel, the judgment rendered in SAP SE correctly finds that Rules 45 & 46 of the 2017 Rules are procedural and would thus be liable to be interpreted as having retrospective application. It was submitted that since the law of limitation is intrinsically procedural, any amendment in such a law would operate retrospectively. It was his submission that Section 21(4) of the Trade Marks Act, 19999 does not provide for a time period within which evidence may either be submitted or extension of time be sought. This, according to learned counsel, would clearly attract Section 131 of the 1999 Act and which confers a discretionary power upon the Registrar to extend the time within which evidence may be filed. He commended for our acceptance the legal position as it stands encapsulated in paragraph 11 of the judgment in SAP SE, which reads thus:
11. Subsequent to the above decision, this Court, in the case of Sunrider Corporation {Supra), differed from the views expressed in the aforementioned decision due to the disparities between the repealed provisions of the 1959 Rules and the revised provisions under the 2002 Rules. The Court ruled that Rule 50(2) of the 2002 Rules is mandatory, rather than directory. Interestingly, under the 2017 Rules, the legal position has apparently reverted to the state that existed prior to the enactment of the 2002 Rules. The phrase ”within such period not exceeding one month in the aggregate thereafter as the Registrar may on request allow” has been expunged. This particular phrase constituted the core rationale behind this Court’s ruling in Sunrider Corporation (Supra) that the 2002 Rules were mandatory, rather than directory. Hence, in light of the congruence of 2017 Rules with the 1959 ones, the judgement in Hastimal Jain (Supra) once again becomes germane to the question of whether the Registrar possesses the discretion to admit evidence even when submitted beyond the stipulated period of two months.

17. Mr. Kalra submitted that Rules 45 and 46 of the 2017 Rules no longer employ the phrase within such period not exceeding one month in the aggregate thereafter as the Registrar may on request allow, as it existed in Rules 50 & 51 of the 2002 Rules. According to learned counsel, the deletion of the aforesaid phrase from Rules 45 and 46 is evidence of the intent of the Legislature of both those provisions not only being viewed as directory but also underlining the inherent discretion which vests in the Registrar to extend the time within which evidence may be submitted. According to learned counsel, Surinder Corporation must be appreciated bearing in mind the indubitable fact that it was rendered in the context of Rules 50 and 51 of the 2002 Rules and which position no longer prevails under the 2017 regime.
18. According to learned counsel, a bare reading of Sections 21 and 131 of the 1999 Act read along with Rules 50, 51 and 53 of the 2002 Rules would lead one to the inevitable conclusion that the Legislature did not intend to limit the time within which evidence may be filed and recognized a discretion inhering in the Registrar to take on record relevant evidence even thereafter. Mr. Kalra submitted that the Court would, in light of the above, be correct in answering the questions which stand framed bearing in mind the salient principles which came to be laid down in Hastimal Jain.
19. Mr. Kalra also sought to draw support for his aforenoted submissions from the following judgments rendered by different High Courts. He firstly drew our attention to the following observations as appearing in the decision of the Gujarat High Court in Wyeth Holdings Corpn. & Anr v. Controller General of Patents, Designs & Trade Marks10:-

59. In view of the aforesaid discussion, in view of the settled legal position that subordinate legislation cannot travel beyond the scope of main legislation and having regard to the provisions of Section 131 which provides for extension of time, this Court has only two options, either to declare sub-rule (2) of Rule 50 as ultra vires the Act or by employing principle of harmonious construction, to read sub-rule (2) of Rule 50 to be a directory one.

60. In the considered opinion of this Court, there is no reason much less a compelling reason for which the first option should be exercised and the Rule be struck down by holding it to be mandatory. As against that, it is a well settled position of law that principle of harmonious construction should be pressed into service and sub-rule (2) of Rule 50 be read as directory. This Court is of the opinion that by declaring sub-rule (2) of Rule 50, directory, no injustice or prejudice is going to be caused to any party. On the contrary, it will be serving the interest of justice. Hence, second option is exercised. Sub-rule (2) of Rule 50 is held to be directory in nature. However, it is clarified that holding sub-rule (2) of Rule 50 to be directory does not take away the powers of the Assistant Registrar to refuse extension of time in a given case when he finds that there is no substance in the grounds on which the extension of time is sought for. As against that, to hold sub-rule (2) of Rule 50 as mandatory, will devoid the Assistant Registrar of his power to exercise discretion in appropriate cases. This Court is of the opinion that the first option, empowering the Assistant Registrar to exercise the discretion in appropriate cases on the merits of the grounds put forward for extension of time, is the one to be preferred.

61. With these observations, the petition is allowed. Sub-rule (2) of Rule 50 is declared to be directory. It is also held that the Assistant Registrar does have power to grant extension of time in light of the merits contained in the grounds on which the extension is sought for. In the consequence, order impugned dated 29.06.2005 is hereby quashed and set aside.

20. Our attention was then invited to yet another decision rendered by that High Court in Intas Pharmaceuticals Limited v. Intellectual Property Appellate Board & Ors11 where it was held:-

4. The language of Rule-50, if read as it is, it can be said that the powers of the Registrar to consider opposition are controlled. However, such controlling of the power of the Registrar in capacity as quasi judicial authority, may not be read by the Court in every case as mandatory and in a given case on consideration of the scheme of the Act read with the powers to be exercised as that of quasi judicial authority, the Constitutional court while interpreting the section or rule may hold to be directory keeping in view the purpose and the objects of the Act.

5. It may also observe that while interpreting other provisions also, such powers with the Court while trying the suit under the Code of Civil Procedure for extending the time, have been read. Therefore, reading such powers holding the procedural aspect to be directory, are not the principle unknown while interpreting the statutory provisions. If the judgment of this court in the case of Wyeth Holdings Corporation & another (supra), is considered in light of the aforesaid position, it appears that the Court with a view to save Rule has held the provision as directory. The Board has followed the decision ofthis Court, therefore, such an approach on the part of the Board cannot be said as perverse exercise of discretion which may call for interference by this Court in a petition under Article 227 of the Constitution.

6. The attempt on the part of the learned Counsel to take a different view in view of the subsequent decision of Delhi High Court in the case of Surinder Corporation, USA (supra) cannot be countenance for two reasons, one is that reading down of the statutory provisions with a view to leave room to the quasi judicial authority for exercising the discretion and thereby to enable them to render justice to the fullest extent is not a principle unknown. Delhi High Court in the said decision in the case of Surinder Corporation, USA (supra) had no occasion to consider the matter from the said angle. The second is that sitting in coordinate bench, the decision is binding as per the principle of sound judicial discipline.

21. A similar view was expressed by that High Court in Bausch & Lomb Incorporated v. Union of India & Ors.12, relevant parts whereof are extracted hereinbelow:-
7. I have heard learned advocates appearing for the respective parties. I have also gone through the impugned order passed by the respondent No. 2. I am of the opinion that the question involved in the present petition is whether the provisions of Rule 50 of the Rules are mandatory or directory in nature. I have also gone through the decisions relied upon by the petitioner as well as by the respondent No. 3. It appears that the coordinate Bench of this Court in the case of Sanyo Ceramics (Supra) has considered both the decisions i.e. decision of the coordinate Bench of this Court in the case of Wyeth Holdings Corporation (Supra) and the decision of the Delhi High Court in the case of Sunrider Corporation, USA, and after considering the said decisions, has held that the provisions of Rule 50 of the Rules are directory in nature. I have also considered the fact that the respondent authority has issued Trade Mark Manual by which the Officers have been directed that Rule 50 of the Rules should be treated as directory in nature. Considering the overall facts and circumstances of the case, I am of the opinion that the respondent No. 2 should not have rejected the application of the petitioner on the ground that the respondent No. 2 has no power and that the provisions of Rule 50 of the Rules are mandatory in nature.

8. In the result, the present petition stands allowed. The impugned order dated 15.5.2015 passed by the respondent No. 2 is quashed and set aside. Though the petitioner has filed Interlocutory Application for condonation of delay in filing the evidence in the year 2005, the respondent No. 2 has decided after considerable long time i.e. on 15.5.2015 and hence, in my opinion, it would be a futile exercise to remand the matter for fresh consideration to the respondent No. 2, particularly when there is no inordinate delay in producing the evidence on record. Hence, the Interlocutory Application filed by the petitioner for condonation of delay in filing the evidence is hereby allowed. The delay caused is hereby condoned. The petitioner is hereby directed to produce evidence before the respondent No. 2 within a period of 15 days from today. The respondent No. 2 thereafter shall proceed with the Opposition Application on merits, in accordance with law as expeditiously as possible. Rule is made absolute to the above extent.

22. Mr. Kalra also commended for our consideration the decision of the Bombay High Court in Kantilal Tulsidas Jobanputra v. Registrar of Trade Marks & Ors13 and more particularly to the following passages of that judgment:-
8. Rule 53(2) provides that opposition shall be deemed to have been abandoned, unless the Registrar otherwise directs, and that clearly indicates that the legislature never intended to lay down a rigid rule, ignoring the genuine circumstances which may require extension of time for filing evidence beyond the period of two months. Rule 53(2) by using the expression “deemed to have been abandoned” provides for a legal fiction and it is settled that legal fiction cannot be stretched beyond the purpose for which it was enacted. The legal fiction is also not absolute but is controlled by the discretion of the Registrar to extend the time and that clearly indicates that legislature never intended to shut out the opposition, merely because the evidence is not filed within the prescribe time. The rule is enacted with a view to indicate the urgency in disposing of the proceedings and viewed in that context, it is clear that the procedural rule is clearly directory. Rule 53(2) enables the Registrar to extend the time for filing evidence in appropriate cases and even if the time is not extended, to permit the party to rely on the facts stated in the notice of opposition. The registration of the mark operates in rem and a duty is cast on the Registrar to maintain the purity of the Registrar and therefore Rule 53 has left wide discretion with the Registrar to extend the time for filing evidence in support of opposition. The rule should be worked to achieve the goal of maintaining the purity of Registrar and not as a weapon to deprive the parties of their right to put their claim before the Registrar.

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11. Taking into consideration the real intention of the legislature and applying the test laid down by the Supreme Court, in my judgment, Rule 53(2) is clearly directory and violation of it cannot be condemned as fatal in every case. The Registrar is clearly in error in holding that the power to extend the time for filing evidence stands extinguished, in case the application for extension is not filed or extension is not granted before expiry of the period. A plain reading of Rule 53 (2) and section 101 of the Act is sufficient to discard the view. It is open to the parties to apply for extension of time on sufficient grounds and it is equally permissible for the Registrar to extend the time on being satisfied of such grounds, and such application and order can be made even after the expiry of the prescribed period. It is not possible to read any limitation in the Rule as suggested on behalf of the Registrar.
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13. Shri Sethna then submitted that in any event the Registrar has given cogent reasons for not exercising discretion and extending the time as sought by the petitioner. In my judgment, the submission is not correct. The Registrar in his order on the review
application has given three reasons for holding that the petitioner is guilty of serious laches and is not entitled to the extension in the discretionary exercise of powers under section 101 of the Act. The reasons are (1) that the petitioner did not take any action as required under Rule 53(1) within two months (2) no application was filed for extension before the expiry of two months, and (3) the application for change was filed after an inordinate delay of five years. In my judgment, the three reasons given by the Registrar for refusing to exercise the discretion are totally incorrect. The first two reasons are not correct, because the petitioner has stated in his application for extension of time that he was under an impression that the opposition would not be entertained unless the change is effected. The petitioner in fact filed an application within a period of two months from the service of counter-statement for effecting change in the Register. That application remained pending for a period of about six months. The petitioner failed to file the evidence because he was under a misconception. Shri Sethna complained that it was not necessary for the petitioner to wait till the change was effected in the Register to file the evidence. It may be so, but it cannot be overlooked that ultimately the Rules of procedure before any Tribunal are for advancement of cause of justice and not to close the doors preventing the parties to get determination on merits. It may be that the petitioner was not very careful in complying with the rules, but that should not prevent him from agitating his claim. The Registrar should have extended the period and should have permitted the petitioner to proceed with the opposition. The third ground is also equally without any merit, because though the petitioner has filed the application for effecting five years, it was not with an idea to take any advantage. The application for change was filed as soon as respondent No. 2 raised an objection in the counter-statement. The facts of the case clearly indicate that the mistake committed by the petitioner in not effecting the change in the Register earlier was a bonafide one. In such circumstances, in my judgment, the Registrar was not right in declining to exercise his discretion in favour of the petitioner. In my judgment, the Registrar ought to have extended the time and permitted the petitioner to file his evidence in support of the opposition.

D. SUBMISSIONS OF THE FIRST RESPONDENT – SWISS AUTO PRODUCTS IN THE SAP SE REFERENCE

23. Appearing for the first respondent in SAP SE, Mr. Singh submitted that not only Surinder Corporation but also a subsequent decision rendered by this Court in Aman Engineering Works v. Registrar Trade Marks, Trade Marks Registry, New Delhi & Ors14 had found that the provisions forming part of the 2002 Rules are mandatory. Learned counsel in this respect drew our attention to paragraphs 8, 22 and 23 of the decision in Surinder Corporation and which have been extracted in the preceding parts of this decision.
24. Thereafter taking us through the decision rendered in Aman Engineering, learned counsel sought to draw sustenance from the following observations as entered in that decision:
28. The position, however, with regard to Rule 119 of the Rules will continue to be governed by Surinder Corporation, U.S.A. (supra), as Rule 119, as was the case with Rule 45 of the old Rules prior to its amendment, prescribes the outer limit within which alone the respondent no. 1 can condone the delay. The judgment of this Court in Surinder Corporation, U.S.A. (supra) would, therefore, fully apply as far as Rule 119 of the Rules is concerned, as it clearly provides that the Registrar of Trade Marks/respondent no. 1 has no power to condone the delay in the filing of an application seeking review beyond expiry of one month from the date of the decision of which review is sought.

25. In this backdrop, Mr. Singh contended that the decisions of the Gujarat High Court relied upon by Mr. Kalra would not hold any significance and that the time period as prescribed under Rules 50 and 51 of the 2002 Rules is mandatory and not directory in nature.
E. SUBMISSIONS OF MAHESH GUPTA
26. In the Mahesh Gupta appeal, the appellant addressed the following submissions in the form of a written note. The appellant contended that the learned Single Judge while handing down its decision in Mahesh Gupta clearly erred in holding that the 2002 Rules would apply even though by that time they had, in fact, been repealed by the 2017 Rules. In support of his submission of repeal and the effect thereof, the appellant placed reliance upon the decision in Kohlapur Canesugar Works Ltd. & Anr. Vs Union of India & Ors.15 and contended that the well accepted effect of the repeal of a statute is the obliteration of the original provisions from the statute book and to treat them as having never existed. Paragraphs 36-38 of the decision in Kolhapur Canesugar Works as relied upon by the appellant are reproduced hereinbelow:
36. In the case in hand Rule 10 or Rule 10-A is neither a “Central Act” nor a “regulation” as defined in the Act. It may be a Rule under Section 3(51) of the Act. Section 6 is applicable where any Central Act or regulation made after commencement of the General Clauses Act repeals any enactment. It is not applicable in the case of omission of a “rule”.
37. The position is well known that at common law, the normal effect of repealing a statute or deleting a provision is to obliterate it from the statute-book as completely as if it had never been passed, and the statute must be considered as a law that never existed. To this rule, an exception is engrafted by the provisions of Section 6(1). If a provision of a statute is unconditionally omitted without a saving clause in favour of pending proceedings, all actions must stop where the omission finds them, and if final relief has not been granted before the omission goes into effect, it cannot be granted afterwards. Savings of the nature contained in Section 6 or in special Acts may modify the position. Thus the operation of repeal or deletion as to the future and the past largely depends on the savings applicable. In a case where a particular provision in a statute is omitted and in its place another provision dealing with the same contingency is introduced without a saving clause in favour of pending proceedings then it can be reasonably inferred that the intention of the legislature is that the pending proceedings shall not continue but fresh proceedings for the same purpose may be initiated under the new provision.
38. In the present case, as noted earlier, Section 6 of the General Clauses Act has no application. There is no saving provision in favour of pending proceedings. Therefore action for realisation of the amount refunded can only be taken under the new provision in accordance with the terms thereof.
27. The appellant then contended that the repeal and savings clause as embodied in Rule 158 of the 2017 Rules only seeks to ensure that the applications as filed under the 2002 Rules and pending on the date of the enactment of the 2017 Rules are not required to be refiled and that actions taken under the 2002 Rules are neither annulled nor effaced. However, and according to the appellant, Rule 158 of the 2017 Rules cannot be interpreted as intending a continued application of the 2002 Rules to those proceedings. Therefore, the appellant contended that even though the pleadings on the opposition were completed prior the repeal of the 2002 Rules, the hearing and the final decision having been rendered only in 2019, i.e., after the passing of the 2017 Rules, it would be those rules which would apply. According to learned counsel, it was the 2017 Rules which were to be considered while considering the time limit for filing the evidence in support of opposition and that the learned Single Judge committed an error in holding that the 2002 Rules were the relevant rules for the said purpose.
28. The appellant then contended that the legal position should be recognised to be that in the absence of a specific bar in the amended enactment or amended provision, the proceedings pending under the repealed law would be able to draw benefit of the amended enactment or amended provision as the case may be. The appellant sought to draw strength for the aforenoted submission from the following passages as forming part of the judgment of the Supreme Court in Dhannalal v. D.P Vijayvargiya16:
7. In this background, now it has to be examined as to what is the effect of omission of sub-section (3) of Section 166 of the Act. From the amending Act it does not appear that the said sub-section (3) has been deleted retrospectively. But at the same time, there is nothing in the amending Act to show that benefit of deletion of sub-section (3) of Section 166 is not to be extended to pending claim petitions where a plea of limitation has been raised. The effect of deletion of sub-section (3) from Section 166 of the Act can be tested by an illustration. Suppose an accident had taken place two years before 14-11-1994 when sub-section (3) was omitted from Section 166. For one reason or the other no claim petition had been filed by the victim or the heirs of the victim till 14-11-1994. Can a claim petition be not filed after 14-11-1994 in respect of such accident? Whether a claim petition filed after 14-11-1994 can be rejected by the Tribunal on the ground of limitation saying that the period of twelve months which had been prescribed when sub-section (3) of Section 166 was in force having expired the right to prefer the claim petition had been extinguished and shall not be revived after deletion of sub-section (3) of Section 166 w.e.f. 14-11-1994? According to us, the answer should be in negative. When sub-section (3) of Section 166 has been omitted, then the Tribunal has to entertain a claim petition without taking note of the date on which such accident had taken place. The claim petitions cannot be thrown out on the ground that such claim petitions were barred by time when sub-section (3) of Section 166 was in force. It need not be impressed that Parliament from time to time has introduced amendments in the old Act as well as in the new Act in order to protect the interests of the victims of the accidents and their heirs if the victims die. One such amendment has been introduced in the Act by the aforesaid Amendment Act 54 of 1994 by substituting sub-section (6) of Section 158 which provides:
“158. (6) As soon as any information regarding any accident involving death or bodily injury to any person is recorded or report under this section is completed by a police officer, the officer in charge of the police station shall forward a copy of the same within thirty days from the date of recording of information or, as the case may be, on completion of such report to the Claims Tribunal having jurisdiction and a copy thereof to the concerned insurer, and where a copy is made available to the owner, he shall also within thirty days of receipt of such report, forward the same to such Claims Tribunal and insurer.”
In view of sub-section (6) of Section 158 of the Act the officer-in-charge of the police station is enjoined to forward a copy of information/report regarding the accident to the Tribunal having jurisdiction. A copy thereof has to also to be forwarded to the insurer concerned. It also requires that where a copy is made available to the owner of the vehicle, he shall within thirty days of receipt of such copy forward the same to the Claims Tribunal and insurer. In this background, the deletion of sub-section (3) from Section 166 should be given full effect so that the object of deletion of the said section by Parliament is not defeated. If a victim of the accident or heirs of the deceased victim can prefer claim for compensation although not being preferred earlier because of the expiry of the period of limitation prescribed. how the victim or the heirs of the deceased shall be in a worse position if the question of condonation of delay in filing the claim petition is pending either before the Tribunal, the High Court or the Supreme Court. The present appeal is one such case. The appellant has been pursuing from the Tribunal to this Court. His right to get compensation in connection with the accident in question is being resisted by the respondents on the ground of delay in filing the same. If he had not filed any petition for claim till 14-11-1994 in respect of the accident which took place on 4-12-1990, in view of the amending Act he became entitled to file such claim petition, the period of limitation having been deleted, the claim petition which has been filed and is being pursued up to this Court cannot be thrown out on the ground of limitation.
29. The appellant also placed reliance upon the judgement of the Supreme Court in Board of Control of Cricket in India v. Kochi Cricket Private Ltd. & Ors17 to contend that proceedings pending under the repealed law would get the benefit of the amended procedure. The relevant parts of the said judgment, as relied upon by the appellant are extracted hereinbelow as follows:
62. In Narhari Shivram Shel Narvekar v. Pannalal Umediram, this Court, following Lalji Rajazs, held as follows: (SCC p. 207, para 8)
8. The learned counsel appearing for the appellant however submitted that since the Code of Civil Procedure was not applicable to Goa the decree became inexecutable and this being a vested right could not be taken away by the application of the Code of Civil Procedure to Goa during the pendency of the appeal before the Additional Judicial Commissioner. It seems to us that the right of the judgment-debtor to pay up the decree passed against him cannot be said to be a vested right, nor can the question of executability of the decree be regarded as a substantive vested right of the judgmentdebtor. A fortiori the execution proceedings being purely a matter of procedure it is well settled that any change in law which is made during the pendency of the cause would be deemed to be retroactive in operation and the appellate court is bound to take notice of the change in law.
Since it is clear that execution of a decree pertains to the realm of procedure, and that there is no substantive vested right in a judgmentdebtor to resist execution, Section 36, as substituted, would apply even to pending Section 34 applications on the date of commencement of the Amendment Act.
63. The matter can also be looked at from a slightly different angle. Section 36, prior to the Amendment Act, is only a clog on the right of the decree-holder, who cannot execute the award in his favour, unless the conditions of this section are met. This does not mean that there is a corresponding right in the judgmentdebtor to stay the execution of such an award. The learned counsel on behalf of the appellants have, however, argued that a substantive change has been made in the award, which became an executable decree only after the Section 34 proceedings were over, but which is now made executable as if it was a decree with immediate effect, and that this change would, therefore, take away a vested right or accrued privilege in favour of the respondents. It has been argued, relying upon a number of judgments, that since Section 36 is a part of the enforcement process of awards, there is a vested right or at least a privilege accrued in favour of the appellants in the unamended 1996 Act applying insofar as arbitral proceedings and court proceedings in relation thereto have commenced, prior to the commencement of the Amendment Act. The very judgment strongly relied upon by the Senior Counsel for the appellants, namely, Garikapati Veeraya [Garikapati Veeraya v. N. Subbiah Choudhry, 1957 SCR 488 : AIR 1957 SC 540] , itself states in Proposition (v) at p. 515, that the vested right of appeal can be taken away only by a subsequent enactment, if it so provides specifically or by necessary intendment and not otherwise. We have already held that Section 26 does specifically provide that the court proceedings in relation to arbitral proceedings, being independent from arbitral proceedings, would not be viewed as a continuation of arbitral proceedings, but would be viewed separately. This being the case, it is unnecessary to refer to the judgments such as Union of India v. A.L. Rallia Ram [Union of India v. A.L. Rallia Ram, (1964) 3 SCR 164 : AIR 1963 SC 1685] and NBCC Ltd. v. J.G. Engg. (P) Ltd. [NBCC Ltd. v. J.G. Engg. (P) Ltd., (2010) 2 SCC 385 : (2010) 1 SCC (Civ) 416] , which state that a Section 34 proceeding is a supervisory and not an appellate proceeding.
30. It was then contended by the appellant that the presumption against retrospective operation does not apply to matters of procedure and that all pending actions would be governed by the amended procedure. In this regard, reliance was placed on the judgment in Securities and Exchange Board of India v. Classic Credit Limited18, the relevant parts whereof are extracted hereinbelow:
50. We have also no doubt, that alteration of forum has been considered to be procedural, and that, we have no hesitation in accepting the contention advanced on behalf of the SEBI, that change of forum being procedural, the amendment of the forum would operate retrospectively, irrespective of whether the offence allegedly committed by the accused, was committed prior to the amendment.
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55. In the latter situation referred to (and debated) in the preceding paragraph, where the remedy had been availed of prior to the amendment, even according to learned counsel for the private parties, unless the amending provision by express words, or by necessary implication, mandates the transfer of proceedings to the forum introduced by the amendment, the forum postulated by the unamended provision, would continue to have the jurisdiction to adjudicate upon pending matters (matters filed before amendment). In view of the above, we are of the considered view, that no vested right can be claimed with reference to forum, where the concerned court, had not taken cognizance and commenced trial proceedings, in consonance with the unamended provision.
31. It is in the aforesaid backdrop that the appellant contended that rules governing evidence in support of opposition being procedural in nature would be liable to be viewed as directory and not mandatory and therefore would operate retrospectively. Learned counsel sought to draw sustenance in this regard from the following passages as appearing in the decision of the Full Bench of this Court in Hastimal Jain Trading:
19. We have considered the rival submissions and read the various Judgments. The determination of the questions raised would depend on whether Rule 53 (2) can be said to be mandatory or merely directory. Mere use of the word “shall” is not sufficient to treat the Rule as mandatory. Even though the word “shall” prima facie indicates that it is mandatory, still the Court must ascertain the real intention of the Legislature by looking to the Statute as a whole. It must also be remembered that a legal fiction cannot be stretched beyond the purpose for ‘which it was enacted. As seen above the legal fiction is not absolute. It is limited by the words “unless” the Registrar otherwise directs”. In our view it is significant that wherever the Legislature intended to prescribe a fixed time, which-could not be extended, it has specifically so done. The necessary ‘implication. of this is that in all other cases the time was not to be fixed but one which would be within the power of the Registrar to ex- tend. Undoubtedly the intention of the Legislature was to minimise delays. For that fixed time is laid down in the Statute itself. However a reading of Section 21 itself shows that for procedural matters like filing evidence the Legislature was not laying down a fixed time in the Statute. This view is supported by a reading of Section 101 and Rule 106. Section 101 indicates that the only circumstance under which time cannot be extended by the Registrar is where a time has been expressly provided in the Act. Similarly, under Rules 106 the time can be extended by the Registrar, in all cases except for the four, which have been mentioned in paragraph 14 above. It is all the more significant that Rule 53 (2) and Rule 54 have not been included in Rule 106. To interpret it otherwise would be to add in Rule 106 the words “or Rule 53″. The Legislature has purposely omitted to do so. It is not possible to accept submission that Rule 53 gets incorporated in Section 21. If the Legislature wanted to ·provide a fixed term of two months in Section 21 (4) as they have done in Section 21 (1) and (2), they would have done so. This interpretation is also borne out by the fact that the deeming provision, in Rule 53 (2), comes into play only if the Registrar does not otherwise ‘directs. The fact that the legal fiction is subject to the direction of the Registrar also shows that it is not absolute but is being controlled by discretion of Registrar. In our view Section 101 and Rule 106 permit the Registrar to extend time, even though the time has expired. To hold otherwise would be to negate the words to that effect used both in Section 101 as well as Rule 106. We are thus in agreement with the view expressed by the Bombay High Court and the Gujarat High Court. We disagree with the view expressed ·in the case reported in 1978 (3) PLR 148 and in the Order dated 30th January 1995 in C.M. (M) 59/95.
20. In this view of the matter was answer the questions accordingly:-
(a) Rule 53 (2) of the Trade and Merchandise Marks Rules, 1959 is merely directory and not mandatory.
(b) & (c) The Registrar has power to extend time for filing evidence even though the period mentioned in Rule 53 or the extended period thereof has expired and even though an application for extension of time is made beyond that period.”
32. The appellant also placed reliance upon the Gujarat High Court judgment in Wyeth Holdings to buttress his submission that rules governing submission of evidence in support of opposition should be viewed as being directory in character. The appellant also sought to base his submission on the well settled precept of rules of procedure being liable to be interpreted so as to advance the cause of justice as opposed to suppressing that supervening objective. It was submitted that the Court should accord an interpretation which would not only promote the cause of justice but additionally prevent miscarriage of justice. For this, reliance was placed on the observations as finding place in State of Bihar v. Bihar Rajya Bhumi19 and Kailash v. Nankhu & Ors20: In Bihar Rajya Bhumi, the Supreme Court pertinently observed: –
19. It will thus be seen that Section 34(5) does not deal with the power of the Court to condone the non-compliance thereof. It is imperative to note that the provision is procedural, the object behind which is to dispose of applications under Section 34 expeditiously. One must remember the wise observation contained in Kailash (supra), where the object of such a provision is only to expedite the hearing and not to scuttle the same. All rules of procedure are the handmaids of justice a