Brief facts leading to filing of this appeal are that appellant filed an application for registration of Trade Mark "Bio Amla" in respect of cosmetics to Registrar Trade Marks. This application was numbered as 87611. This Trade Mark was advertised in Trade mark Journal No.461 of June, 1989 which was published on 15-2-1990.
2. Respondent Bergam Laboratories filed an application for extension of time, on 15th April, 1990, for filing notice of opposition to this application, and time was extended. Second Application for extension of time was filed on 10-5-1990, 3rd on 11-6-1990, 4th on 15-7-1990, 5th on 11-8-1990 and 6th on 19-9-1990 and time was extended upto 15-10-1990. Finally notice of opposition was filed on 18-10-1990.
3. The appellants were granted hearing by the Registrar Trade Marks in the last application for extension of time as it was delayed by three days. Date of hearings was fixed on 30-6-1991 and again on 15-7-1991, but on both these dates the appellant did not appear and Registrar, Trade Marks passed the impugned order after hearing the respondent No.2.
4. Learned Advocate for the respondent has argued that as per Rule 30 of the Trade Marks Rule, 1963 time given for filing of notice of opposition is two months from date of publication. Registrar; Trade Marks can extend this time under Rule 76 for period a of one month at a time and in aggregate not exceeding six month. He has further argued that as Trade Mark was published in Trade Mark Journal on 15-2-1990, respondent No.2 Bergam Laboratories had to file notice of opposition in view of Rule 30 of Trade Marks Rules by 15-4-1990, and even in case of extension is granted under Rule 76 of Trade Marks Rules at the most by 15-10-1990 but respondent has filed notice of opposition on 18-10-1990. He has further argued that extension granted on fifth application was upto 15-9-1990 but the sixth application was filed on 19-9-1990 and delay of three days cannot be condoned, as such notice of opposition filed on 18-10-1990 has no value. He has relied on a case reported in PLD 1992 SC 417 Rehmat Elahi v. Hoyo Kabushiki Kaisha.
5. The learned counsel for the respondent has argued that the time limit is not extended from the date of publication but from the date of despatch of the publication which according to him is 19- 2-1990 and the last date for filing of notice of opposition would be 19-10-1990 and not 15-10-1990.
He has further argued that looking to this it is customary that one week is given as extra time from date of publication, as such, according to him the impugned order has been rightly passed and notice of opposition has been filed within time. He has relied on AIR 1977 Delhi 93 (M/s. Ratan and Co. v. P. Narayanan) and AIR 1952 Travancore-Cochin 77 (Pavunuy Ouseph v. The Registrar of Trade Marks).
6. It has been held in Pavunuy Ouseph v. The Registrar of Trade Marks (AIR 1952 Tavancore-Cochin 77) that:--- "The four months" period prescribed by R.30 read with S.15(2) for filing the notice of opposition to the Registration of a Trade mark should be counted from the date of despatch and not from the date when it is got printed or few copies or cuttings distributed among the subordinate offices of the Trade Marks Registry or among the applicants for registration."
7. In Ratan & Co. v. V.P. Narain AIR 1977 Delhi 93 it has been held that:- "in locutory order under section 21 granting extension of time, no appeal lies under section 109:"
8. It has been held in Rehmat Elahi v. M/s. Noyo Kabushiki Kaisha PLD "Order of extension for time upto an aggregate of six months cannot be subject-matter of an appeal but extension granted beyond the period of six months is not only illegal but attracts section 15(3)."
9. It has also been held that in same judgment.
"The Registrar is empowered under rule 76 to extend the time. It confers a restrictive power on the Registrar not to extend the time beyond an aggregate period of six months and also that an extension granted under this rule shall not exceed a period of more than one month at a time."
10. It is admitted that trade marks were published in Journal on 15-2-1990. First application for extension of time was filed on 15th April, 1990, in which time of extension was sought upto 18-5-1990, so also a subsequent application but time was extended upto 15th of preceding month and not upto 18th as requested. It has been held in AIR 1952 Travancore-Cochin 77 that time for filing notice of opposition is counted from the date of despatch, but in this case, the respondents have not led any evidence as to when the Journal in which the advertisement is published has been despatched to them or as to when they have received the copy of the Journal. There is mere assertion of the respondents that it is customary to count the time limit after one week of publication of Journal. Even the Registrar in his order has granted, extension upto 15-5-1990 in first application which clearly shows that he was also of the opinion that the time is counted from the date of publication i.e. 15-2-1990.
11. There is no dispute about first five extensions granted by Registrar but the extension granted on 6th application is under dispute. Finding of the learned Registrar on this point is "keeping in view the facts of the case, I held that no delay actually has been taken place in filing the last request of extension of time by the intending opponent to file notice of opposition as throughout in this request, on TM 55 he has been asking extension of time from 18-5-1990 onward to 18-10-1990 whereas the office in their calculation has been granting him time from 15-5-1990 to 15-10-1990, counting the date of m publication of the Journal No.461 i.e. 15-2-1990 for limitation for filing opposition.
12. This view taken by the Registrar is improper. Judicial order is always supposed to be passed by the authority after applying its mind properly not on dictation and interpretations of his office. At this stage learned registrar cannot give a finding that the order of extending the time is upto 18th of every month and not on 15th of every month as is written in the order. Learned Registrar cannot interpret the order by presuming that this order was passed due to miscalculation of the office.
13. As regards whether the impugned order is appealable or not, it has to be seen whether the impugned order affects the rights and liabilities of the parties and decide the main and real controversies and in excess of the powers conferred on Registrar under Rule 76. If this order is only procedural collateral and does not affect the rights and liabilities or decide the main and real controversies then it is not appealable within the powers conferred on the Registrar under rule 76 but if otherwise it is appealable.
13. This order is clearly excess of the powers conferred on the Registrar. Rule 76 provides:--- "It in any particular case the Registrar is satisfied, that the circumstances are such as to justify an extension of the time for doing any act or taking any proceedings under these rules, not being a time expressly provided to the Act prescribed by Rule 55 or 59, he may extend the time upon such notice to other party, if necessary, and upon such terms as he may direct, and the extension may be granted, though extension granted under this rule shall not exceed a period of more than one month at a time, provided that the total period of such extension shall not exceed six months against each statutory period prescribed. An application for extension of time shall be made in Form TM 55, on payment of the prescribed fee."
14. It is clear that Registrar has no powers to grant extension beyond aggregate period of six months which expires on 15-10-1990 as first extension granted by him is upto 15-5-1990. This order also touches the rights and liabilities of the parties as respondent could not file notice of opposition after the prescribed time.
15. In view of above discussion it is held that impugned order is appealable and has been passed in excess of the powers conferred on the Registrar and is set aside. Appeal is allowed with no order as to costs.