1. ' Impugned in these three appeals is a common order, dated 19-2-1995 passed in Oppositions Nos.176 of 1992, 177 of 1992, 178 of 1992 and 312 of 1992 being a consolidated order whereby opposition matters have been disposed in terms of dismissing the Opposition of the appellant being Opposition No,312 of 1992 whereby the application of the respondent No,2 being Application No,111782 in class 34 has been allowed for registration and allowing such Opposition of the respondent No,2 whereby _ Application No,108979 in class 34 of the appellant has been refused registration.
2. ' At the very outset, it would be profitable to mention that, in the first instance, Opposition No,178 of 1992 had been withdrawn whereas in the remaining Opposition, it had been claimed that trade mark No,111782 by the respondent No,2 had been used since 1984 in the market on the item "QUAAM". Record reveals that Form T.M.16 for change of name of the owner, dated 1-2-1995 had been filed.
3. ' Admitted position under the set of circumstances is that change of ownership has not changed the product in dispute. The point for consideration in the present appeal is as to who is "prior user" in terms of time of the disputed trade mark.
4. ' The learned counsel for the appellant has contended that the appellant has been condemned unheard without consideration of objections which could have been filed by the appellant resulting into a grave irregularity. He has further invited my attention to an aspect that objection having not been filed within limitation prescribed under the Act would result into abandoning such objections.
5. His reliance is further placed on the provision of subsection (2) to section 15 of the Trade Mark Act, 1940, which for the purposes of ready reference is reproduced herein under:--- "(2) Any person may within the prescribed time from the date of the advertisement of an application, give notice in writing in the prescribed manner to the Registrar, of opposition to the registration."
6. ' It seems that evidence in shape of affidavit, tax returns, copy right certificate have also been placed on record which were considered by the Assistant Registrar of Trade Marks. Period of limitation is prescribed under Rule 32 of the Revised Trade Marks Rules, 1963. Reliance has also been placed on the evidence led and produced in one opposition to be dealt as evidence though not produced, but considered in other oppositions. Consequently, the learned counsel contended that in order to secure the ends of justice, suppress the, mischief and advance the remedy, it would be beneficial if the matter is remanded for re-consideration as the appellant had been condemned unheard.
7. ' On the other hand, the learned counsel for the respondent No,2 has raised two preliminary objections. Firstly, that the appeal is not verified on Oath nor any affidavit in support of the appeal has been filed being a mandatory requirement of the High Court Rules. Secondly, in the said Appeals Nos.43 and 44 of 1996 para. IV is the actual re-production, which for the purposes of ready reference is re-produced herein under:-- "(iv) Trade Mark: White Horse (word and Device) Label. Application No,108979 in Class 34, dated 20th November, 1990, advertised in the Trade Marks Journal No,494 of March, 1992. A photo copy of the clipping of the Trade Marks Journal No,494 is attached herewith and marked as Annexure 'B-4'.
8. A representation of the mark is attached herewith and marked as Annexure 'B-5'. This is the mark, which is the subject-matter of this appeal."
9. ' Special reference has also been made on the last two lines whereby the appellant has contended that "this is the mark, which is the subject-matter of this appeal. Such reproduction of para. IV is also available in M.A. No,44 of 1995. Based on the aforementioned re-production, the learned counsel for the respondent No,2 has contended that by not mentioning any other application but Application No,108979 in Class 34, dated 24th November, 1990, the appellant has abandoned his claim on any other application.
10. ' After having dealt with the aforementioned preliminary objections, the learned counsel for the respondent No,2 has contended that the memo. Of appeals contained a common prayer and common facts and grounds with the same application number and no such submission has been made by the appellant taking different grounds in support of different oppositions which were canvassed before the Assistant Registrar Trade Marks. In other words the appellant is said to have foregone their oppositions at least in two appeals.
11. ' Having carefully considered the submissions made and also one peculiar aspect which has emerged in the present proceedings being a suit who had been filed by the appellant where in application under Order XXXIX, Rules 1 and 2, C.P.C. Against the respondent No,2 was dismissed. It seems that an appeal is pending adjudication but the learned counsel for the appellant has very frankly stated that no order of injunction has been obtained since the year 1992. It seems that evidence which has been placed on record is that the respondent No,2 who has been using this trade mark since the year 1984-85 and has also given out sales figures which for the purposes of ready reference are as follows:--- ' YEAR AMOUNT 1945-85 1,15,200 is the owner, originator, and creator of a particular mark and under whose use has the said particular mark be in term of time. It seems that the appellant has failed to file any tax returns in support of the commodity in which the trade mark is in dispute. Non-filing of tax returns before the authority has been conceded by the learned counsel for the appellant by submitting that no tax returns have been filed. The appellant does not seem to possess any certificate of registration of copy rights testifying that the appellant was the "prior user" in point of time of this particular trade mark as against the respondent No,2. Such being the intent of law to allow registration to a user who has continued to use the trade mark prior in point of time cannot be interfered with. Such being the merits of the case that even upon remand, the fact would remain that neither tax returns have been filed by the appellant nor any copy right certificate has been placed on record. Nothing prevented the appellant to have placed such pieces of evidence in the present appeals. I would, therefore, agree with the impugned order whereby the Opposition No,312 of 1992 has failed and Opposition Nos.177 of 1992 and 178 of 1992 succeeded. Resultantly, the Application No,111782 in Class 34 has been ordered to proceed for registration on the basis of prior user ownership. At this stage, the learned counsel for the appellant has contended that the application has been filed by only two partners whereas the counter-statement had been filed by only one partner. Such arguments of the learned counsel for the appellant, I am afraid, would not be beneficial to the appellant as the words employed in subsection (2) to section 15 of the Trade Marks Act, 1940 are "any person". Indeed, it would be seen that a person had filed opposition and counter-statement regardless of them being either partners or owners. Consequently, the present appeals fail and are accordingly dismissed in limine.