Gujarat High Court
M/S Raj Abhushan Bhandar vs The Assistant Registrar Of Trade Marks on 23 July, 2026
Author: Sunita Agarwal
Bench: Sunita Agarwal
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Reserved On : 27/04/2026
Pronounced On : 23/07/2026
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/LETTERS PATENT APPEAL NO. 619 of 2026
In
R/CIVIL APPEAL/22/2023
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2026
In
R/LETTERS PATENT APPEAL NO. 619 of 2026
With
R/LETTERS PATENT APPEAL NO. 620 of 2026
In
R/CIVIL APPEAL NO. 21 of 2023
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2026
In
R/LETTERS PATENT APPEAL NO. 620 of 2026
In
R/CIVIL APPEAL NO. 21 of 2023
FOR APPROVAL AND SIGNATURE:
HONOURABLE THE CHIEF JUSTICE MRS. JUSTICE SUNITA
AGARWAL
and
HONOURABLE MR.JUSTICE D.N.RAY
=============================================
Approved for Reporting Yes No

=============================================
M/S RAJ ABHUSHAN BHANDAR
Versus
THE ASSISTANT REGISTRAR OF TRADE MARKS & ANR.
=============================================
MR PRATIK Y JASANI(5325) for the Appellant(s) No. 1
MR ANKIT SHAH(6371) for the Respondent(s) No. 1
MS RUSHVI N SHAH with MR JAWAD Z. SHAIKH with MR ARBAZ
A. SAIYEDfor the Respondent(s) No. 2
=============================================
CORAM:HONOURABLE THE CHIEF JUSTICE MRS. JUSTICE
SUNITA AGARWAL
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and
HONOURABLE MR.JUSTICE D.N.RAY
CAV JUDGMENT
(PER : HONOURABLE THE CHIEF JUSTICE
MRS. JUSTICE SUNITA AGARWAL)
1. This set of intra-court appeals are directed against the
common judgment and order dated 11.07.2025 passed
by the learned Single judge of this Court in a statutory
appeal under Section 91 of the Trade Marks Act, 1999,
(in short as the “TM Act’ 1999) which was against the
order dated 27.02.2023 passed by the Trademark
Registry, Ahmedabad.
2. At the outset, preliminary objection has been raised by
the learned counsel for the respondent herein, with
regard to the maintainability of the Letters Patent
Appeal under Clause 15 of the Letters Patent, with the
contention that the jurisdiction exercised by the learned
Single judge in a statutory appeal being appellate in
nature in continuation of the proceedings originated
before the statutory authority, the Letters Patent Appeal,
which is an intra-court appeal from the judgement or
order of the court of original jurisdiction of the High
Court, would not be maintainable.
3. The submission of the learned counsel for the
respondent No. 2 is that the intra-court appeal may lie
where the learned Single judge exercises original
jurisdiction and not appellate jurisdiction in a statutory
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appeal. It is submitted that the legislative intent to
provide only one round of appeal against the order of the
Trademark Registry under the Trade Marks Act, 1999, is
evident from the scheme of the Act, 1999, whereby the
Trade and Merchandise Marks Act, 1958 (in short as the
‘TMM Act‘ 1958) has been repealed.
4. Section 91 of the TM Act’ 1999 is a departure from the
statutory framework of the predecessor Act, namely the
TMM Act‘ 1958. Section 109 of the TMM Act’ 1958
provided for two levels of appeals in sub-section (4) and
sub-section (5) thereof. Sub-section (5) of Section 109
provided for an appeal to a bench of the High Court
against a decision of the Single judge of the High Court
in appeal under sub-section (4), against an order or
decision of the Registrar under the said Act or the Rules
made therein. The submission is that under the TMM
Act‘ 1958, the legislature has excluded second level of
appeal, which was provided under the Predecessor Act
of 1958.
5. Section 109 of the Trade and Merchandise Marks Act,
1958 and Section 91 of the Trade Marks Act, 1999 being
extracted at this juncture :-
The Trade and Merchandise Marks Act 1958
“109. Appeals – (1) No appeal shall lie from any
decision, order or direction made or issued under
this Act by the Central Government or from any act
or order of the Registrar for the purpose of giving
effect to any such decision, order or direction.
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(2) Save as otherwise expressly provided in sub-
section (1) or in any other provision of this Act, an
appeal shall lie to the High 15 Court within the
prescribed period from any order or decision of the
Registrar under this Act or the rules made
thereunder.
(3) Every such appeal shall be preferred by petition
in writing and shall be in such form and shall
contain such particulars as may be prescribed.
(4) Every such appeal shall be heard by a single
Judge of the High- Court:
Provided that any such Judge may, if he so thinks
fit, refer the appeal at any stage of the proceeding
to a Bench of the High Court.
(5) Where an appeal is heard by a single Judge, a
further appeal 25 shall lie to a Bench of the High
Court.
(6) The High Court in disposing of an appeal under
this section shall have the power to make any order
which the Registrar could make under this Act.
(7) In an appeal by an applicant for registration
against a decision 30 of the Registrar under section
17 or section 18 or section 21, it shall not be open,
save with the express permission of the court, to
the Registrar or any party opposing the appeal to
advance grounds other than those recorded in the
said decision or advanced by the party in the
proceedings before the Registrar, as the case may
be. and where 35 any such additional grounds are
advanced, the applicant for registration may, on
giving notice in the prescribed manner, withdraw
his application without being liable to pay the costs
of the Registrar or the parties opposing his
application.
(8) Subject to the provisions of this Act and of the
rules made thereunder, the provisions of the Code
of Civil Procedure, 1908, shall apply to appeals
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before a High Court under this Act.”
The Trade Marks Act, 1999
“91. Appeals to 2[High Court]. – (1) Any person
aggrieved by an order or decision of the Registrar
under this Act, or the rules made thereunder may
prefer an appeal to the 2[High Court] within three
months from the date on which the order or
decision sought to be appealed against is
communicated to such person preferring the
appeal.
(2) No appeal shall be admitted if it is preferred
after the expiry of the period specified under sub-
section (1):
Provided that an appeal may be admitted after the
expiry of the period specified therefor, if the
appellant satisfies the 2[High Court] that he had
sufficient cause for not preferring the appeal within
the specified period.
(3) An appeal to the 2[High Court] shall be in the
prescribed form and shall be verified in the
prescribed manner and shall be accompanied by a
copy of the order or decision appealed against and
by such fees as may be prescribed.”
6. The submission is that the corresponding provision of
appeal incorporated in Section 91 in the successor Trade
Marks Act, 1999 providing for only one level of appeal to
the High Court is a conscious omission of the second
level of appeal to a higher Bench of the High Court as
was provided in sub-section (5) of Section 109 of the
predecessor TMM Act‘ 1958. The present Letters Patent
Appeal, thus, is nothing but an effort of the appellant to
2 Subs. by the Tribunals Reforms Act, 2021(33 of 2021), sec. 21(k), for “Appellate Board” (w.r.e.f.4-4-2021).
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circumvent the statutory scheme and the legislative
intent not to provide further appeal to the High Court
against the order of the learned Single Judge.
7. Further, placing Section 100A of the Code of Civil
Procedure, 1908, it is submitted that the amendment
brought in the Code of Civil Procedure by the Act 22 of
the 2002 w.e.f. 01.07.2002 has categorically provided
that notwithstanding anything contained in Letters
Patent for any High Court or any instrument having the
force of law or in any other law for the time being in
force where any appeal from an original or appellate
decree or order is heard and decided by a Single Judge
of High Court, no further appeal shall lie from the
judgment and decree of such Single Judge. Second level
of appeal against the order passed by the learned Single
Judge in its appellate jurisdiction is, thus, specifically
excluded by virtue of Section 100A of the Code of Civil
Procedure. The provisions opens with the non-obstante
clause and the use of expression “notwithstanding” is of
crucial significance, inasmuch as, it gives the provision
an overriding effect over all other laws including the
Letters Patent under which intra court appeals are
preferred in this Court.
8. For ready reference, Section 100A of the Code of Civil
Procedure, 1908, is reproduced hereinunder :-
“100A. No further appeal in certain cases.–
Notwithstanding anything contained in any Letters
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having the force of law or in any other law for the
time being in force, where any appeal from an
original or appellate decree or order is heard and
decided by a Single Judge of a High Court, no
further appeal shall lie from the judgment and
decree of such Single Judge.”
9. It is further submitted that the language of Clause 15 of
the Letters Patent itself is clear when it says that an
appeal shall lie to the High Court from the judgement,
not being a judgement passed in exercise of the
appellate jurisdiction in respect of a decree or an order
made in exercise of the appellate jurisdiction by a Court
subject to the superintendence of the said High Court.
The submission is that the intra court appeals in respect
of a decree or order made in the exercise of appellate or
revisional jurisdiction including the order passed in
exercise of the powers of superintendence of the High
Court are specifically excluded. An intra court appeal
against the order of a Single Judge is maintainable under
Clause 15 of the Letters Patent, only when the order by
the Single Judge is passed in exercise of the original
jurisdiction of the High Court and not in appellate,
revisional or supervisory jurisdiction.
10. By further reading of Clause 15 of the Letters Patent, it
was submitted that the second part of the clause starts
with the words “and that notwithstanding anything
hereinbefore provided” will not attract and will not be
invoked, in view of the clear language employed therein
that intra court appeal will not be attracted or cannot be
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invoked except of a certificate granting leave of the
learned Single Judge is required.
11. Moreover, with the insertion of Section 100A in the Code
of Civil Procedure in the year 2002, intra court appeal
cannot be maintained in respect of a decree or order
made in exercise of appellate jurisdiction of the High
Court.
12. It is further submitted that the function of the Registrar
under the Trade Marks Act is adjudicatory as it involves
determination of the civil right between the parties. The
Registrar while granting or refusing to register or cancel
registration or refuse to cancel registration, considers
pleadings, evaluate evidence and summon the parties to
hear them and render a reasoned decision. The
adjudicatory function of the Registrar is quasi-judicial in
nature and not administrative. The authorities
exercising such adjudicatory functions possess what is
understood in law as “trapping of a Court”. The
expression refers to those essential features that
characterize judicial proceedings, including the power to
receive evidence, summon the parties, adjudicate
dispute between the parties by binding decision
affecting their rights. The presence of such attributes
brings the proceedings before the Registrar within the
broader framework of adjudication of civil rights. When
such a determination is carried out in appeal under
Section 91, the learned Single Judge exercises appellate
jurisdiction over a decision, which is in substance akin to
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a civil adjudication.
13. The appellate proceedings before the High Court are,
thus, not in the nature of original jurisdiction but are in
continuation of the adjudicatory proceedings initiated by
the statutory authority (Registrar). Thus, permitting a
Letters Patent Appeal in such circumstances would
defeat the express mandate of Section 100A of the CPC,
by allowing a further appeal in a judgment rendered in
an appellate jurisdiction. Moreover, Clause 15 of the
Letters Patent itself does not support and specifically
excludes orders passed in the appellate proceedings by
the learned Single Judge, which are not original in
nature, but continuation of original proceedings.
14. The bar under Clause 15 of the Letters Patent squarely
applies and the appellants cannot seek a further round
of appeal against the judgment of the Single Bench of
this Court. It is, thus, contended that in view of the
express bar under Clause 15 of the Letters Patent; the
scheme of Section 91 of the Trade Marks Act, 1999
brought in supersession of the erstwhile provision of
TMM Act‘1958 which provided two levels of appeal
before the High Court; as well as Section 100A of the
CPC, the present set of intra-court appeals filed under
Clause 15 of the Letters Patent are not maintainable and
hence, liable to be dismissed as such.
15. In support of above submissions, Mr. Rushvi Shah,
learned advocate for the respondent no.2 has relied
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upon the following decisions :-
1. Vithal Bogra Shetty vs. Board of Trustees, 2022 (0)
AIJEL – HC 244584
2. ITALFARMACO SPA v. Controller of Patents &
designs, 2025 SCC OnLine Mad 13148
3. Glorious Investment Ltd. v. Dunlop International
Ltd., 2025 SCC OnLine Cal 8647
4. Northern Railways v. Harleen Kaur, 2025 SCC
OnLine Del 1317
5. Vishal Prafulsingh Solanki & Ors. vs. Controller of
Patent and Designs & Ors., 2026 -OS 7027-DB
16. Mr. Pratik Y. Jasani, learned advocate for the appellants,
in rebuttal, relied upon the following decisions to assert
that in view of the settled law, the Letters Patent
Appeals are to be held as maintainable:-
1. National Sewing Thread Co. Ltd. v. James
Chadwick & Bros. Ltd., (1953) 1 SCC 794
2. Sharda Devi v. State of Bihar, (2002) 3 SCC 705
3. Subal Paul v. Malina Paul, (2003) 10 SCC 361
4. Fuerst Day Lawson Ltd. v. Jindal Exports Ltd.,
(2011) 8 SCC 333
5. Ram Kishan Fauji v. State of Haryana, (2017) 5
SCC 533
6. Promoshirt SM SA v. Armassuisse, 2023 SCC
OnLine Del 5531
7. Nashik Hing Supplying Company Vs. Annapurna
Gruh Udyog Bhandar, 2003 (0) AIJEL – HC 208406Page 10 of 88
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8. Gujarat State Road Transport Corporation v. Firoze
M. Mogal, 2013 SCC OnLine Guj 8638
9. Resilient Innovations (P) Ltd. v. Phonepe (P) Ltd.,
2023 SCC OnLine Del 2972
10. Rajdhani Cooperative Housing Society Ltd. Vs.
State of Gujarat, 2024(0) AIJEL – HC0248573Judgements relied by the learned counsel for the
appellant on maintainability
17. It was submitted that in National Sewing Thread Co.
Ltd. v. James Chadwick & Bros. Ltd. [(1953) 1 SCC
794], the specific question before the Apex Court was
about the maintainability of appeal under Clause 15 of
the Letters Patent against the order of the learned
Single Judge under Section 76 of the Trade Marks Act,
1940 (in short as the TM Act’ 1940).
18. The Letters Patent Appeal under clause 15 of the Letters
Patent of the Bombay High Court therein was preferred
against the order of the High Court (Single Bench)
under Section 76 of the TM Act’19540 which was and
allowed restoring the order of the Registrar with costs
throughout.
19. Considering the challenge to the said order in Letters
Patent Appeal, the Apex Court therein has noted the
following part of clause 15 of the Letters Patent :-
“And We do further ordain that an appeal shall lie
to the said High Court of Judicature at Bombay
from the judgment of one Judge of the said High
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to section 108 of the Government of India Act.”
20. The submission before the Apex Court was that the
provision of Clause 15 would not be attracted to an
appeal preferred to the High Court under Section 76 of
the Trade Marks Act, 1940 and further that the clause
will have no application in a case where the judgement
impugned could be said to have been delivered pursuant
to Section 108 of the Government of India, 1915. Both
these objections were rejected being not well-founded
noticing the provisions contained in Section 76(1) of TM
Act’1940, and the intent and purpose of Section 108 of
the Government of India Act, 1915.
21. It was held that the Trademark Act, 1940 did not provide
or lay down any procedure for the future conduct of that
appeal in the High Court and section 77 therein
provided that the High Court may make rules in the
matter. Once the appeal reached a High Court it had to
be determined according to the rules of practice and
procedure of that Court and according to the provisions
of the Charter under which that Court is constituted and
which confers on it power in respect to the method and
manner of exercising that jurisdiction. The rule is well
settled that when a statute directs that an appeal shall
lie to a Court already established, then that appeal must
be regulated by the practice and procedure of that
Court.
22. It was held that Section 108 of the Government of India
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Act, 1915 is an enabling enactment conferring power on
the High Court of making rules to exercise its
jurisdiction by Single Judges or by Division Bench. The
power conferred by the said section is not circumscribed
in any manner whatever and the nature of the power is
such that it had to be conferred by the use of words of
the widest amplitude. There can be no particular
purpose or object while conferring the power in limiting
it qua the jurisdiction already possessed by the High
Court when in the other provisions of the Government of
India Act, it was contemplated that the existing
jurisdiction was subject to the legislative power of the
Governor-General and the jurisdiction conferred on the
High Court was liable to be enlarged, modified and
curtailed by the Legislature from time to time.
23. It was argued therein that with the repeal of Section 108
of the Government of India Act, 1915, and of the
enactment of its provisions in Section 223 of the
Government of India Act of 1935 and later on in Article
225 of the Constitution of India, there had not been any
corresponding amendment of clause 15 of the Letters
Patent and the reference to section 108 in clause 15 of
the Letters Patent could not, therefore, be taken as
relating to these provisions. That being so, the High
Court had no power to make rules in 1940 when the
Trade Marks Act was enacted under the repealed
section and the decision in appeal of the Single Judge of
Bombay High Court could not be said to have been given
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pursuant to section 108.
24. Repealing that, It was held that the power that was
conferred on the High Court by Section 108 still subsists
and it has not been affected by the subsequent
amendments by the Government of India Act,1935 or by
the Constitution of India. On the other hand, it has
been kept alive and reaffirmed with great vigour by
these statutes. The High Courts still enjoy the same
unfettered power as they enjoyed under section 108 of
the Government of India. Act, 1915, of making rules and
providing whether an appeal has to be heard by one
Judge or more Judges or by Division Courts consisting of
two or more Judges of the High Court. It was further
held that the High Court was right in the view that
reference in Clause 15 to Section 108 should be read as
a reference to the corresponding provisions of the 1935
Act and the Constitution. There is no reasonable ground
for holding that that rule of construction should not be
applied in construing the Charters of the different High
Courts, as enunciated in section 38 of the Interpretation
Act and reiterated with some modifications in Section 8
of the General Clauses Act, which is of general
application where statutes or Acts have to be construed.
These Charters were granted under statutory powers
and are subject to the legislative power of the Indian
Legislature.
25. Further, it was observed that even if strictly speaking,
the provisions of the Interpretation Act and the General
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Clauses Act do not for any reason apply, there was no
justification for holding that the principles of
construction enunciated in those provisions have no
application for construing these Charters. It was, thus,
held that the High Court was perfectly justified in
overruling the preliminary objection and holding that an
appeal was competent from the judgment of one of the
one Judge or the one Judge Bench of the Bombay High
Court under Clause 15 of the Letters Patent.
26. In light of the controversy raised and adjudicated before
the Apex Court in National Sewing Thread Co. Ltd.
(supra), we may note, at this juncture, that the issue
raised before us is completely different and distinct,
inasmuch as, we are called upon to answer the following
questions:-
(i) Whether the second round of appeal against an
order passed by the single judge of this court in appeal
under Section 91 of the Trade Marks Act, 1999 would be
maintainable in view of the language employed in Clause
15 of the Letters Patent?
(ii) Whether the order passed by the Single Judge of
this Court in appeal under Section 91 of the Trade
Marks Act, 1999 can be said to be an order passed in the
original jurisdiction of the High Court attracting Clause
15 of the Letters Patent, in view of the language
employed therein?
(iii) Whether the repeal of the Trade Marks and
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Merchandise Marks Act, 1958, whereunder the
legislature has taken away the second round of statutory
appeal provided therein under Section 109(5) before the
Division Bench of the High Court against the order of a
Single Bench passed in sub-section (4) of Section 109,
while enacting the Trade Marks Act, 1999, may be
factored in as conscious omission of the second level of
appeal to answer the question of maintainability of
Letters Patent Appeal under clause 15 of the Letters
Patent.
27. In Sharda Devi (supra), reference was made in view of
the conflicting decisions on the question as to whether a
Letters Patent Appeal was maintainable against the
judgment and decree of the learned single judge of the
High Court in an appeal preferred under Section 54 of
the Land Acquisition Act, 1894. Answering the said
question, it was observed therein in paragraph 9 as
under:-
“9. A Letters Patent is the charter under which the
High Court is established. The powers given to a
High Court under the Letters Patent are akin to the
constitutional powers of a High Court. Thus when a
Letters Patent grants to the High Court a power of
Appeal, against a judgment of a single Judge, the
right to entertain the appeal would not get
excluded unless the concerned statutory enactment
excludes an appeal under the Letters Patent.”
28. Considering the language employed in Section 54 of the
Land Acquisition Act, 1894, it was held that Section 54
of the Land Acquisition Act, 1894 does not exclude an
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appeal under the Letters Patent. The word “only”‘ in the
phrase ‘an appeal shall lie only to the High Court’
occurring immediately after the non-obstante clause in
Section 54, refers to the forum of appeal. In other
words, it provides that the appeal would lie to the High
Court and not to any other court, e.g. the District Court.
The term, “an appeal” does not restrict it to only one
appeal in the High Court. The term ‘an appeal’ would
take within its sweep even a Letters Patent Appeal. If
read in any other manner, there would be a conflict
between Section 54 and the provisions of the Letters
Patent. It was, thus, concluded that under Section 54 of
the Land Acquisition Act, 1894, there is no bar to the
maintainability of the Letters Patent Appeal. Hence, the
reference was answered upholding the three-Judge
Bench of the Apex Court in Basant Kumar vs. Union
of India [(1996) 11 SCC 542]. Para ‘9’ of Basant
Kumar (supra) as noted in paragraph ‘8’ in Sharda
Devi (supra)] reads that:-
“9. The next question is whether the LPA would
lie against the judgment of the learned Single
Judge? It is a settled legal position that under
Section 54 of the Land Acquisition Act, the appeal
would lie to the High Court; when the appeal on the
basis of the pecuniary value was decided by a
Single Judge necessarily, it being the judgment of
the Single Judge, an appeal would lie to the same
Court in the form of LPA to the Division Bench. The
Division Bench was not right in holding that the
LPA would not lie to the High Court against the
judgment of the Single Judge. To that extent, the
view of the High Court is not correct.”
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29. At this juncture, we may simply note that the judgment
Sharda Devi (supra) was rendered by the Apex Court
the language employed in Section 54 of the Land
Acquisition Act, 1894, i.e. the scheme of the Act itself.
30. In Subal Paul (supra), the issue before the three
bench of the Apex Court was as to whether the Letters
Patent Appeal would lie against the judgment of a
learned Single Judge of the High Court passed under
Section 299 of the Indian Succession Act, 1925. It was
argued therein that the question was squarely covered
by the previous decision of the Apex Court in Sharda
Devi (supra). While determining the question as
regards Clause 15 of the Letters Patent, it was observed
that the court is required to see as to whether the order
sought to be appealed against is a judgment within the
meaning thereof or not. Once it is held that irrespective
of the nature of the order, meaning thereby whether
interlocutory or final, a judgment has been rendered,
clause 15 of the Letters Patent would be attracted.
31. Reading the language of Clause 15 of the Letters Patent,
it was noted that Clause 15 permits an appeal against
the order passed by the Single Judge of the High Court
in a second forum. National Sewing Thread Co. Ltd.
(supra), was relied to hold that a Letters Patent Appeal
against a judgment of a Single judge of the High Court
exercising the power under Section 76 of the Trade
Marks Act, 1940 would be maintainable, while noticing
that said decision had been followed by the Apex Court
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in Maharashtra State Financial Corporation v.
Joycee Drags and Pharmaceuticals Pvt, Ltd and On,
[(1991) 2 SCC 637], however, distinguished in Union
of India and Ors, v. Aradhana Trading Co. and Ors,
[(2002) 4 SCC 447] on the ground that under the
Arbitration Act, there exists a specific provision relating
to an appeal.
32. It was held therein that the order passed by the Single
Judge under Section 299 of the Indian Succession Act,
1925 was appealable under Section 15 of the Letters
Patent and that objection in regard to maintainability of
Letters Patent Appeal was rightly overruled by the High
Court.
33. In Fuerst Day Lawson Ltd. (supra), the question was
as to whether an order, though not appealable under
Section 50 of the Arbitration and Conciliation Act, 1996,
would nevertheless be subject to appeal under relevant
provisions of the Letters Patent of the High Court. The
issue framed therein was “even though the Arbitration
Act does not envisage or permit an appeal from the
order, the party aggrieved by it can still have his way by-
passing the Act and taking recourse to another
jurisdiction”. It was argued therein that the jurisdiction
of the High Court under Letters Patent is an
independent jurisdiction and as long as the order
qualifies for an appeal under the Letters Patent, an
appeal from that order would be, undoubtedly,
maintainable before the High Court.
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34. It was observed that the correct answer to both the
questions would depend upon how the 1996 Act is to be
viewed. Do the provisions of the 1996′ Act constitute a
complete code for matters arising out of an arbitration
proceedings, the making of the award, and the
enforcement of the award? If the answer to the question
is in affirmative, then, obviously, all other jurisdictions,
including the Letters Patent jurisdiction of the High
Court, would stand excluded. But in case, the answer is
in negative, the aforesaid contentions must be accepted.
35. Considering the entire scheme of the Arbitration and
Conciliation Act, 1996, as well as, Indian Arbitration Act
of 1940, it was held therein that, the Arbitration Act of
1940, from its inception, right through 2004, (in P.S.
Sathappan v. Andhra Bank Ltd. [(2004) 11 SCC
672]) was held to be a self-contained code. The
Arbitration Act, 1996, which consolidates, amends and
designs the law relating to arbitration, to bring it, as
much as possible, in harmony with the UNCITRAL
Model, must be held to be a self-contained and
exhaustive legislation. It carries with it a negative
import, that only such acts which are mentioned in the
Act, are permissible to be done and acts, or things not
mentioned therein are not permissible to be done.
36. The Letters Patent appeal was, thus, excluded by one
principle where the special Act sets out a self-contained
code, the applicability of the general law procedure
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would be impliedly excluded. The conclusion regarding
the exclusion of a Letters Patent appeal has been, thus,
arrived in two ways; as said, (i) on a micro basis, by
examining the scheme devised by Sections 49 and 50 of
the 1996 Act, and the radical change that it has brought
about in the earlier provision of appeal under Section 6
of the 1961 Act.; And (ii) the other on a macro basis, by
taking into account the nature and character of 1996
Act, as a self-contained and exhaustive code in itself. It
was concluded that no Letters Patent appeal will lie
against an order, which is not appealable under Section
50 of the Arbitration and Conciliation Act, 1996.
37. In Ram Kishan Fauji (supra), the question was as to
the maintainability of the Letters Patent Appeal under
Clause 15 of the Letters Patent against an order passed
by the Single Judge of the High Court in a writ petition
in the nature of certiorari for quashing of the orders
passed by the Lokayukta recommending for registration
of an FIR against the petitioner therein under the
provisions of the Prevention of Corruption Act, 1988.
38. It was argued before the Apex Court that the post held
by Lokayukta and Upa-lokayukta are quasi-judicial in
nature. Their functioning has to be given the same
character and once they are clothed with such
functioning and action taken by them is subject to
challenge before the High Court under Article 226 of the
Constitution seeking a writ of certiorari for quashment
of the same, the adjudication has to be regarded as civil
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in nature. Since the opinion and recommendation of the
Lokayukta was challenged in a writ court, the
jurisdiction sought to be exercised is under Article 226
of the Constitution of India and resultantly, is amenable
to correction in intra-court appeal.
39. The Apex Court while reading clauses 15, 17 and 18 of
the Letters Patent, as applicable to erstwhile Punjab &
Lahore High Courts and clause 10 of the said Letters
Patent establishing the Lahore High Court, pari materia
to Clause 15 of the Letters Patent of the Chartered High
Courts, has noted Clause 17 and 18 in paragraph ’22’ as
under :-
“22. Clauses 17 and 18, being pertinent, are extracted
below:-
“17. And We do further ordain that the High
Court of Judicature at Lahore shall have
extraordinary original criminal jurisdiction over
all persons residing in places within the
jurisdiction of any Court subject to its
superintendence, and shall have authority to try
at its discretion any such persons brought
before it on charges preferred by any magistrate
or other officer specially empowered by the
Government in that behalf.
18. And We do further ordain that there shall be
no appeal to the High Court of Judicature at
Lahore from any sentence or order passed or
made by the Courts of original criminal
jurisdiction which may be constituted by one or
more Judges of the said High Court. But it shall
be at the discretion of any such court to reserve
any point or points of law for the opinion of the
said High Court.”
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40. It was then noted that a two judges bench in Umaji
Keshao Meshram & others v. Radhikabai & another
[1986 (Supp.) SCC 401], has held that the petition
filed under Article 227 of the Constitution and under the
Rules of the High Court, it having been heard by a
Single Judge, under Clause 15 of the Letters Patent of
that High Court, an intra-court appeal against the
decision of the learned Single Judge was expressly
barred considering the distinction between the exercise
of the jurisdiction of the High Court under Articles 226
and 227 of the Constitution of India. Discussing Radhey
Shyam and another v. Chhabi Nath and others
[(2015) 5 SCC 423], it was held therein that when the
order of the civil court is challenged under Article 227 of
the Constitution of India, no intra-court appeal would lie
from such challenge. The principles culled out therein
about the maintainability of the appeal under clause 15
of the Letters Patent in para ’42’are as under :-
“42. At this stage, it is extremely necessary to cull
out the conclusions which are deducible from the
aforesaid pronouncements. They are:
42.1. An appeal shall lie from the judgment of a
Single Judge to a Division Bench of the High Court
if it is so permitted within the ambit and sweep of
the Letters Patent.
42.2. The power conferred on the High Court by
the Letters Patent can be abolished or curtailed by
the competent legislature by bringing appropriate
legislation.
42.3. A writ petition which assails the order of a
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civil court in the High Court has to be understood,
in all circumstances, to be a challenge under
Article 227 of the Constitution and determination
by the High Court under the said article and,
hence, no intra-court appeal is entertainable.
42.4. The tenability of intra-court appeal will
depend upon the Bench adjudicating the lis as to
how it understands and appreciates the order
passed by the learned Single Judge. There cannot
be a straitjacket formula for the same.”
41. In the facts of the case at hand, however, while noticing
that the writ petition was filed under Article 226 of the
Constitution of India, for quashing of the
recommendation of the Lokayukta, where the learned
Single Judge has exercised criminal jurisdiction of the
High Court, and that the vital factor for determination of
the maintainability of an intra court appeal is the nature
of the jurisdiction invoked by the party and the true
nature of the order passed by the learned Single Judge.
It was, thus, held that in view of the clear exclusion in
Clause 15 of the Letter Patent, the Single Bench order
being an order made in exercise of the criminal
jurisdiction, the Letters Patent Appeal was not
maintainable before the Division Bench.
42. In Promoshirt SM SA (supra), the Division Bench of
the Delhi High Court had dealt with the preliminary
objection as to the maintainability of the Letters Patent
Appeal against the order of the Single Bench in terms of
Section 91 of the TM Act’ 1999. The respondents
therein had taken a preliminary objection to the
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maintainability of the Letters Patent Appeal in light of
Section 100A of the Code of Civil Procedure. The
arguments were also on the legislative amendments
brought by the TM Act’ 1999, which is a departure from
Section 109(5) of the TMM Act’ 1958. It was argued
that absence of a provision akin to Section 109(5) of
TMM Act’ 1958 also lends credence to the intent of the
Legislature being to take away the right of a further
appeal against a judgment and order rendered by a
Single Judge while exercising appellate jurisdiction.
43. In light of the aforesaid, it was observed in paragraph 30
as under:-
“30. Having noticed the rival submissions
which were addressed, we find that the
principal issue which falls for determination
would be whether Section 100-A of the Code,
while prescribing that no further appeal
would lie from an original or appellate decree
or order rendered by a Single Judge of a High
Court would also extend to appeals that may
be preferred in terms of the Letters Patent
and relate to a judgment or order rendered by
a Single Judge of the Court in terms of Section
91 of the 1999 TM Act. Undisputedly, Section
91 of the 1999 TM Act, confers a right on a
person aggrieved to approach the High Court
by way of an appeal against any order or
decision of the Registrar of Trade Marks. The
1999 TM Act as it presently stands also does
not carry a provision pari materia to Section
109(5) as it existed in the 1958 TM Act. The
position of an appeal thus appears to have
reverted back to the position as it existed in
the 1940 TM Act. Thus insofar, as the subject
of trademarks is concerned, the only period
where a second appeal was specificallyPage 25 of 88
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provided for was under the 1958 TM Act. In
fact this aspect of a legislative shift was one
which was highlighted by Mr. Anand in
support of his submission that a further
appeal is no longer envisaged. However, we
shall deal with that submission at an
appropriate stage of this decision.”
44. After extensive deliberation on the legal provisions and
the decisions of the Apex Court, as noted hereinabove, it
was held that Section 100A would appear to be aimed at
eclipsing and shutting out the remedy of an intra court
appeal which may otherwise be available under a Letters
Patent when it comes to matters governed by the Code
of Civil Procedure. The intent of Section 100A of the
Code would be confined to a second appeal when
preferred against a judgment of a Single Judge
exercising appellate powers provided it pertained to a
decree or order as defined by the Code. The bar would,
thus, only operate where the decree or order against
which the appeal was preferred before the Single Judge,
was of a civil court.
45. The arguments that the Registrar of Trade Marks would
qualify the standards of a tribunal having “trappings of a
Court” to justify invocation of Section 100A to bar
Letters Patent Appeal against the order of a Single
Bench under Section 91 of the TM Act’ 1999, was
though seriously doubted but not dealt with.
46. It was held that in addition to the above, the Letters
Patent Appeal remedy would also not be available where
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a special statute subjects the appeal remedy to follow
the rules applicable to appeals as embodied in the Code
of Civil Procedure. Once the appeal is made subject to
the Rules incorporated in the Code, all restrictions in
appeal including Section 100A, would get attracted and
attached. The appeal provision in such a case would be
deemed to have consciously adopted all restrictions as
put in place under the Code of Civil Procedure and
would override the Letters Patent provision.
47. Relying upon the Full Bench of Delhi High Court in Avtar
Narain Behal v. Subhash Chander Behal, [2008
SCC OnLine Del 1154], it was noted that exclusion in
Section 100A of the Code has been applied in terms of
Section 299 of the Indian Succession Act therein, in view
of clear and unambiguous terms providing appeals to the
High Court “in accordance with the provisions of the
Code of Civil Procedure, 1908, applicable to appeals”. It
was, thus, held that as is manifest from a plain reading
of Section 299, the avenue of appeal was made subject
to the provisions of the Code dealing with appeals,
Section 100A, thus, clearly apply.
48. On a comparative analysis of the provisions of Section
76 of the Trade Marks Act 1940, Section 109 of the
TMM Act’ 1958 and Section 91 of the TM Act’ 1999, it
was observed in paragraph ’45’ as follows:
“45. As would be evident from a reading of those
statutory provisions, the only time when a second
appeal was explicitly provisioned for was when thePage 27 of 88
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1958 TM Act held the field and by virtue of Section
109(5) such an appeal was envisaged.
Undisputedly, a provision akin to Section 109(5)
neither existed in the 1940 TM Act nor does an
identical provision appear in the 1999 TM Act.
Significantly, however, both the appellate
provisions as they existed in the 1940 TM Act as
well as the 1958 TM Act specifically provided that
appeals filed in terms of those provisions before the
High Court would be governed by the provisions of
the Code. This is manifest from Section 76(3) and
Section 109(8) of the respective statutes. Those
sub-sections in unambiguous terms provided that
the provisions of the Code would apply to appeals
before the High Court. However, Section 91 of the
1999 TM Act does not incorporate any such
prescription. That takes us to the principal question
of whether Section 100-A of the Code can be read
or construed as taking away the letters patent
provision of appeals and which presently does
envisage an appeal being preferred before a
Division Bench of our Court notwithstanding the
judgment of the Single Judge having been made in
the exercise of appellate jurisdiction.”
49. The Division Bench of the Delhi High Court in
Promoshirt SM SA (supra) has also relied upon the
decision of the Apex Court in National Sewing Thread
Company Limited (supra) to note in paragraphs ’46’
and ’47’ as under :-
“46. We note that way back in the year 1953,
when National Sewing Thread Co., came to be
rendered by the Supreme Court, a question arose
as to whether a letters patent appeal against a
judgment rendered by a Single Judge of the
Bombay High Court would be maintainable in the
absence of Section 76 of the 1940 TM Act
incorporating anything to the contrary. Section 76
as it existed in that statute did not embody a
provision akin to Section 109(5) which formed partPage 28 of 88
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of the 1958 TM Act. Notwithstanding, the silence in
this respect in Section 76 of the 1940 TM Act the
Supreme Court observed as follows:–
“6. The appellants preferred an appeal against
the order of the Registrar to the High Court of
Bombay as permitted by the provisions of
Section 76 of the Trade Marks Act. Shah, J.
allowed the appeal, set aside the order of the
Registrar and directed the Registrar to
register the mark of the appellants as a trade
mark. From the judgment of Shah, J. an
appeal was preferred by the respondents
under Clause 15 of the Letters Patent of the
Bombay High Court. The appeal was allowed
and the order of the Registrar was restored
with costs throughout. Hence this appeal.
**** **** ****
9. The Trade Marks Act does not provide or
lay down any procedure for the future conduct
or career of that appeal in the High Court,
indeed Section 77 of the Act provides that the
High Court can if it likes make rules in the
matter. Obviously after the appeal had
reached the High Court it has to be
determined according to the rules of practice
and procedure of that Court and in
accordance with the provisions of the Charter
under which that Court is constituted and
which confers on it power in respect to the
method and manner of exercising that
jurisdiction. The rule is well settled that when
a statute directs that an appeal shall lie to a
Court already established, then that appeal
must be regulated by the practice and
procedure of that Court. This rule was very
succinctly stated by Viscount Haldane, L.C.
in National Telephone Co. Ltd. v. PostmasterPage 29 of 88
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General [National Telephone Co.
Ltd. v. Postmaster General, [1913] A.C.
546 (HL)], in these terms : (AC p. 552)
“… When a question is stated to be referred to
an established Court without more, it, in my
opinion, imports that the ordinary incidents of
the procedure of that Court are to attach, and
also that any general right of appeal from its
decisions likewise attaches.”
The same view was expressed by Their
Lordships of the Privy Council in Adaikappa
Chettiar v. Chandrasekhara
Thevar [Adaikappa
Chettiar v. Chandrasekhara Thevar, 1947 SCC
OnLine PC 53 : (1946-47) 74 IA 264] wherein
it was said : (IA p. 271)
“… where a legal right is in dispute and the
ordinary courts of the country are seized of
such dispute the courts are governed by the
ordinary rules of procedure applicable thereto
and an appeal lies, if authorised by such rules,
notwithstanding that the legal right claimed
arises under a special statute which does not
in terms confer a right of appeal….”
10. Again, in Secy. of State for India in
Council v. Chelikani Rama Rao [Secy. of State
for India in Council v. Chelikani Rama
Rao, 1916 SCC OnLine PC 42 : (1915-16) 43
IA 192 : ILR (1916) 39 Mad 617], when
dealing with the case under the Madras
Forest Act, Their Lordships observed as
follows : (IA p. 197)
“… It was contended on behalf of the
appellant that all further proceedings in
courts in India or by way of appeal were
incompetent, these being excluded by the
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terms of the statute just quoted. In Their
Lordships’ opinion this objection is not well
founded. Their view is that when proceedings
of this character reach the District Court, that
Court is appealed to as one of the ordinary
courts of the country, with regard to whose
procedure, orders and decrees the ordinary
rules of the Civil Procedure Code apply.”
Though the facts of the cases laying down the
above rule were not exactly similar to the
facts of the present case, the principle
enunciated therein is one of general
application and has an apposite application to
the facts and circumstances of the present
case. Section 76 of the Trade Marks Act
confers a right of appeal to the High Court
and says nothing more about it. That being so,
the High Court being seized as such of the
appellate jurisdiction conferred by Section 76
it has to exercise that jurisdiction in the same
manner as it exercises its other appellate
jurisdiction and when such jurisdiction is
exercised by a Single Judge, his judgment
becomes subject to appeal under Clause 15 of
the Letters Patent there being nothing to the
contrary in the Trade Marks Act.”
47. As would be evident from the passages
extracted hereinabove, National Sewing Thread
Co. held that once an appeal reaches the High
Court, its course would have to be determined in
accordance with the rules of practice and
procedure of that Court. The Supreme Court
in National Sewing Thread Co. thus upheld the
right of a litigant to institute a further appeal in
terms of the letters patent provision which applied
in the absence of anything contrary contained in
the 1940 TM Act. The principles enunciated in that
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decision would thus lead one to conclude that a
further appeal in terms of a letters patent provision
would be maintainable in the absence of any
contrary provision or intention being expressed
either in the statute from which those proceedings
emanated or any other general law. We would of
course have to bear in consideration that National
Sewing Thread Co. came to be rendered prior to
the introduction of Section 100-A of the Code.”
50. As regards the scope of Letters Patent provisions as
applicable to the Delhi High Court pari materia with
Clause 15 of the Letters Patent applicable to the present
appeal, it was noted in paragraph ’32’ as under:-
“32. As would be evident from a reading of the first
part of Clause 10 of the Letters Patent, it bars a
third appeal before this Court. The issue which
therefore arises is whether Section 100-A of the
Code can be interpreted or construed as
debarring even a second appeal which was
otherwise maintainable before this Court
notwithstanding it having arisen from a
judgment or order rendered by a Single Judge
exercising appellate jurisdiction.”
51. It was, concluded in Promoshirt SM SA (supra), that
on consideration of the provisions of TM Act’ 1999
including Section 91, no provision of TM Act’ 1999
stipulates that no further appeal would lie or that when
an appeal preferred, it would be governed by the
provisions of the Code, insofar as, they relate to appeals.
In absence of any such provision, either regulating or
restricting right of appeal in Section 91 of the TM Act’
1999, the Letters Patent Appeal remedy would not be
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barred by Section 100A of the Code and would be
available.
52. In Nashik Hing Supplying Company (supra), this
High Court was called upon to deal with the objections
as to the maintainability of appeal before the Division
Bench under Section 109(5) of the TMM Act’ 1958 on
the ground that appeal would be barred by Section 100A
CPC. The Division Bench rejected the said objections on
the grounds that :-
(i) The substantive right of appeal provided in
the statute can be taken away only by express
words or necessary intendment.
(ii) Section 100A CPC, though opens with non-
obstantive clause, it is part of general procedural
law and the TMM Act‘ 1958 is a special law
providing for appeal only subject to the provisions
of the Act.
(iii) Section 100A brought by 2002 CPC
amendment does not derogate a substantive right
of appeal expressly conferred by a special statute
and Section 109(5) of TMM Act’1958 is not
repealed by Section 100A.
(iv) The quasi judicial character of the Registrar
makes no difference as a Registrar under the TM
Act’ 1999 is not a Civil Court as contemplated by
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the CPC. Section 100A, as such, cannot bar a
statutory appeal before the Division Bench against
the decision of a Single judge in exercise of its
appellate jurisdiction over any authority which is
not a civil court.
53. Reliance is also placed on the decision of this Court in
Rajdhani Co-operative Housing Society Ltd. Vs.
State of Gujarat [2024 (0) AIJEL-HC248573] and of
the Delhi High Court in Resilient Innovations (P) Ltd.
(supra).
54. Referring to the Full Bench judgment of this Court in
Gujarat State Road Transport Corporation (supra),
it was submitted that in the said case, the Full Bench
has only considered the distinction between the exercise
of original writ jurisdiction under Article 226 of the
Constitution and the exercise of supervisory jurisdiction
under Article 227 of the Constitution over the civil court
or tribunal having “trappings of the court”. The said
decision cannot be taken as a binding precedent of law
on the issues raised herein.
55. With the above, it was vehemently argued that the
preliminary objection raised by the respondent as to the
maintainability of the present Letters Patent Appeal is
liable to be rejected, considering the law laid down in
the aforesaid decisions.
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Judgments relied by learned Counsel for the
respondents:-
56. In rebuttal, the learned Counsel for the respondent
relying upon the decisions in Vithal Bogra Shetty
(supra), ITALFARMACO SPA(supra), Glorious
Investment Ltd. (supra), Northern Railways
(supra) and Vishal Prafulsingh Solanki (supra) in
support of the preliminary objections, would submit that
in light of the scheme of Section 91 of the TM Act 1999,
Section 100A CPC and Clause 15 of the Letters Patent,
the instant Letters Patent Appeal being directed against
an order passed by the learned Single judge in a
statutory appeal under the Trade Marks Act, would not
be maintainable.
57. The decision in Vishal Prafulsingh Solanki (supra)
was rendered in a proceeding in Letters Patent Appeal, a
commercial appeal under Section 13 of the Commercial
Courts Act, 2015 filed before the Division Bench of the
Bombay High Court against the judgment of the learned
Single Judge in Commercial Misc. Petition filed under
Section 117A of the Patents Act, praying for quashing
and setting aside of the order passed by the Assistant
Controller of Patent and Designs refusing the Patent
Application. The submission of the learned counsel for
the appellant therein was that :-
(i) The order passed by the Single Judge is in exercise
of the original jurisdiction conferred in him.
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(ii) The Appeal is maintainable under Section 13(1-A)
of the Commercial Courts Act, 2015 as the
judgment passed by the learned Single Judge is a
‘Decree’.
(iii) The bar under Section 100A of CPC do not apply
because the Assistant Controller of Patents is not a
Court.
58. The respondent, on the other hand, raised an objection
to the maintainability of the appeal under Section 13 on
the ground that there is no provision for intra court
appeal provided under the Patents Act read with the
provisions of the Commercial Courts Act, 2015. It was
argued therein that the appeal is a creature of statute
and Section 117A of the Patents Act does not provide for
any further appeal or any intra court appeal against the
judgment of the Single Judge rendered by the High
Court. While exercising appellate jurisdiction, right of
appeal cannot be inferred or implied in absence of an
express provision.
59. Answering the said issue, it was held by the Division
Bench of the Bombay High Court that the Assistant
Controller under Section 77 of the Patents Act is clothed
with the powers of Civil Court while trying a Suit under
the Code of Civil Procedure, in the wake of the
proceedings before him and by exercise of this power,
the Controller is empowered to hear any parties to the
proceedings or to give any such party an opportunity to
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be heard in regards to the application, which is filed for
grant of patent or for amendment of a specification
before exercising the discretion adverse to the applicant.
It was noted that under the scheme of Chapter XV,
including Section 77 read along with Sections 79 and 80,
the evidence before the Controller is permitted to be
given on affidavit, in absence of his directions to the
contrary but where the controller thinks it right so to do,
he may take oral evidence in lieu of, or in addition to,
evidence by affidavit, or may allow any party to be cross-
examined from the contents of the affidavit.
60. It is in light of the specific powers conferred upon the
Controller General of Patents, Design and Trade Mark,
appointed under Section 3 of the Trade Marks Act, 1999,
it was held that the nature of extensive powers vested on
the Controller, which includes the specific power in
cases of anticipation as contemplated in Section 18 as
well as the power conferred on him in case of potential
infringement as well as the power to make orders
regarding substitution of the applicants, the Controller
of Patents plays a significant role and therefore, in the
whole process of grant or refusal of patent, he is
conferred with the powers of the Civil Court, as regards
the application for grant of patent and his decision is
appealable before the High Court.
61. The view of the Delhi High Court qua the powers of
Registrar under the Trade Marks Act that it is not a Civil
Court, however, was distinguished with the observation
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that the powers conferred on the Registrar under the
Trade Marks Act are not parallel to one exercised by the
Controller of Patents under the Patents Act, 1970 and
the Controller in the scheme of the statute, in discharge
of his powers and functions would have to be treated as
a tribunal having “trappings of a Civil Court”.
62. In light of the aforesaid, it was held that the appeal
under Section 117 A of the Patents Act decided by the
learned Single Judge being in the nature of First Appeal,
no second appeal is maintainable under Section 13 of
the Commercial Courts Act, 2015 and in view of Section
100A of the CPC providing for exclusion of a second
appeal to the Division Bench, the preliminary objections
as to the maintainability of the appeal was upheld, both
in the wake of bar of Section 100A read with Section 13
of the Commercial Courts Act, 2015.
63. The Madras High Court in ITALFARMACO SPA
(supra) was rendered in an intra court appeal against
the order of the learned Single Judge under Section
117A of the Patents Act 1970. Taking note of Section
13(1) of the Commercial Courts Act, 2015, it was held
therein that since the appeal has been provided to the
High Court under Section 117A of the Patents Act, 1970,
and Section 13 of the Commercial Courts Act
contemplates that appeal shall lie from such order
passed by the Commercial Division that are specifically
provided in order XLIII of the Code of Civil Procedure,
the intra court appeal under Section 15 of the Letters
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Patent against the order in regular appeal under the
Patents Act is not maintainable. Any expansion of the
scope of the Commercial Courts Act will defeat its
objectives and there is no ambiguity regarding appeals
from decrees of Commercial Courts and Commercial
Divisions under Section 13 of the said Act.
64. In Glorious Investment Limited (supra), the appeal
before the Division bench of the Calcutta High Court
was against the order of the learned Single Judge under
Section 91 of the TM Act’ 1999. It was argued on behalf
of the respondent therein that no further appeal would
lie from the judgment and decree of the Single Judge, in
view of the bar contained in Section 100A of the code.
65. The Calcutta High Court relying upon the decision of the
Apex Court in Kamal Kumar Dutta & Anr. vs. Ruby
General Hospital Limited & Ors. [(2006) 7 SC 613],
has noted that the appeal is a vested substantive right
and such right could be taken away only by subsequent
enactment either expressly or by necessary intendment.
The Parliament while inserting Section 100A of CPC
with the Amendment Act 22 of 2002 w.e.f. 01.07.2002
took away the Letters Patent power of the High Court in
the matter of appeal against an order of the learned
Single Judge to the Division Bench. Kamal Kumar
Dutta (supra) was decided by the Apex Court in the
context of Section 10F of the Companies Act, which
confers right of appeal to the High Court against any
order of the Company Law Board.
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66. Applying the provisions of Section 100A of the Code,
finding that the Company Law Board is a Tribunal
having all the trappings of a Civil Court, it was held
therein that the Company Law Board was constituted for
shouldering the same judicial business that the Single
Bench of the High Court did prior to the amendment of
the Companies Act, 1956 in the year 1991 and further
under the relevant provisions of the 1956 Act, the
Company Law Board discharged functions akin to that of
a Civil Court. It is to be considered as a Tribunal having
all the trappings of the Court and hence, Letters Patent
Appeal against the order of the learned Single Judge
arising out of the order of the Company Law Board, was
held to be barred by Section 100A of the Code of Civil
Procedure.
67. The Calcutta High Court therein relying upon the
decision of the Apex Court in Kamal Kumar Dutta
(supra), and other decisions making a distinction
between a court and a tribunal, has examined the
question as to whether the Registrar under the TM Act’
1999 can be said to be a tribunal having trappings of the
Civil Court.
68. Considering section 127 of the TM Act 1999 providing
for the powers of the Registrar, it was held that the
Registrar has all powers including power to review its
decision and to impose costs, that a civil court has for
the purposes mentioned in the said Section. The order
as to costs passed by the Registrar has been made
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executable as a decree of a Civil Court. The provisions
of Chapter III of the 1999 Act would further reveal that
the Registrar is ultimately to take a decision on the
application filed before it by either party accepting the
application or rejecting the same upon considering the
opposition thereto, if any. The Trademarks Rules 2017
framed in exercise of power under Section 157 of 1999
Act provides a detailed procedure for examination of an
application for registration, hearing of the objections
thereto and rendering a decision by the Registrar prior
to its acceptance.
69. It was held that a holistic reading of various provisions
of 1999 Act and the Rules made thereunder leaves no
room for doubt that the Registrar has almost all the
trappings of the court for the purpose of deciding as to
whether the mark should be registered in favour of a
person or not. Such a decision is taken on the basis of
the evidence adduced by the person concerned and upon
considering the opposition to register those application
along with the evidence in support of the opposition.
70. The Registrar has a duty to act judicially and fairly and
even if no objection is filed, the Registrar has a duty to
objectively scrutinize, examine the facts of the evidence
adduced in order to determine if the trademark meets
the requirement for registration under the 1999 Act and
then make a decision. The decision taken by the
Registrar to either accept the request for registration or
to reject the same directly makes and determines the
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applicant’s legal rights and liabilities and in case of an
opposition the rights and liabilities of both the parties.
This is an essential characteristic of a judicial function.
71. Thus, applying the ratio of Kamal Kumar Dutta
(supra), it was held that the Registrar having trappings
of the Court, the Letters Patent Appeal against an order
passed under section 91 of the TM Act 1999 would not
be maintainable. Further, referring to Section 109 of the
TMM Act 1958, it was observed in paragraphs ’33 and
34′ as under :-
“33. The predecessor Act of the 1999 Act thus
specifically provided a forum for second appeal.
Upon the repeal of the 1958 Act, a similar provision
was consciously avoided by the legislature while
creating an Appellate Board for hearing appeals
under the 1999 Act. Should such omission be held
to be without reasons? It is settled law that deletion
of a provision from a statute is to be given due
weightage in probing the legislative intent. Why
should a similar consideration not be factored in
while considering a successor legislation given the
fact that a specific provision for appeal which was
there in the predecessor Act is not there in the
successor Act?
34. Originally (i.e. prior to the 2021 amendment)
since Section 91 of the 1999 Act provided for
appeal against an order of the Registrar before the
Intellectual Property Appellate Board (hereafter
“the Board”) and no further, the orders passed by
the Board were assailed either by way of a writ
petition under Article 226 or by way of a revision
under Article 227 of the Constitution of India. All of
these constitutional remedies are discretionary in
nature and cannot be exercised as a matter of
right. To wit, the pre-amendment 1999 Act also, at
least seemingly, did not encourage a secondPage 42 of 88
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appeal. Subsequently, the Tribunals Reforms Act,
2021 was enacted and thereby several amendments
were effected in the 1999 Act. One of them was the
change of the appellate forum under Section 91
from the Board to the High Court. Notably, apart
from the change of the forum of appeal, the other
portion of Section 91 was left untouched. Should
the clear legislative intent in the special law be
then allowed to be overridden by a long drawn
interpretative process and by reading the same to
be making room for Letters Patent appeals? We
think not. It is settled law that no appeal can be
preferred without there being any provision
therefor. It is equally settled that a special statute
may exclude a general appellate provision both
expressly as well as by implication. Here the
exclusion is express by application of Section 100A
and is tacitly implied by the exclusion of the second
appellate provision in the present statute which
was there in the predecessor statute.”
72. The decision in Avtar Narain Behal (supra), of the Full
Bench of the Delhi High Court has also been recorded in
paragraph 39 in the following manner :-
“39. Avtar Narain Behal (supra) is a Full Bench
judgment of the Delhi High Court holding (in the
concluding portion of paragraph 22 of the ILR
Report) that “The language of Section 100A does
not suggests that the exclusion of the right of
appeal available under the Letters Patent is
confined only to the matters arising under the Code
and not under any enactments”.”
73. In Vithal Bogra Shetty (supra), decided by the Gujarat
High Court, the question was about the maintainability
of Letters Patent Appeal against the order of the learned
Single Judge, in a petition filed under Articles 226 and
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227 of the Constitution of India challenging the order
passed by the Additional District Judge in Regular Civil
Suit, confirming the order passed by the competent
authority under the Bombay Public Premises (Eviction of
Unauthorised Occupants) Act, 1971. While deciding the
question whether the intra court appeal is maintainable
against the Single Bench, it was held that :-
“13. Clause 15 of the Letters Patent Act does not
provide an appeal against the judgment or order
passed by a learned Single Judge of this Court in a
petition under Article 227 and an appeal will lie if
the judgment or order is passed in petition under
Article 226. Where a petition is filed both under
Article 226 and 227 of the Constitution of India, it
will have to be considered whether the point raised
in the petition arose for adjudication for the first
time before the High Court. If the challenge in the
petition is with respect to the points already
adjudicated upon by the subordinate court or
tribunal, then it will have to be held that the
supervisory jurisdiction of the High Court was
invoked and not the original jurisdiction. The relief
prayed for and granted by the court is also a factor
that would indicate whether the petition was filed
under Article 226 or 227. In case where it can be
said that the petition would fall both under Article
226 and Article 227, then it would be proper to
consider the petition as the one filed under Article
226 of the Constitution of India and in those cases
an appeal would lie under Section 15 of the Letters
Patent Appeal Act.
14. The proceeding under Article 226 is an original
proceeding and when it concerns civil right, it is an
original civil proceeding. The proceeding under
Article 227 is not an original proceeding. An intra-
court appeal does not lie against the judgment of a
learned Single Judge when the power of
superintendence is exercised by examining thePage 44 of 88
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order of a subordinate court. The Hon’ble Apex
Court in LIC‘s case referred to supra, has held that
an appellate officer while exercising the power
under Section 9 of PP Act does not act as a persona
designata but in his capacity as a pre-existing
judicial authority in the District (being a District
Judge or Judicial Officer designated by the District
Judge, possessing essential qualification). Further,
the order passed by the District Judge under PP Act
is in the capacity of an appellate court and it would
part-take the order of the subordinate court, the
challenge thereto must ordinarily proceed only
under Article 227 of the Constitution of India and
not Article 226 thereof. Therefore, the Letters
Patent Appeal against the judgment of a learned
Single Judge would not be maintainable.”
74. A recent decision of Delhi High Court in Northern
Railways v. Harleen Kaur (supra) has been placed
before us to submit that the Delhi High Court has held
that the jurisdiction available to the High Court under
Article 227 of the Constitution of India being primarily in
the nature of superintendence, the Letters Patent Appeal
would not lie against the Single Judge decision in a
petition under Article 227 of the Constitution of India.
75. Having heard the learned counsel for the parties and
perused the record, in light of the submissions made
before us, the following questions are arising for our
consideration :-
(i) Whether the Registrar in exercise of its
adjudicatory powers and functions under the TM
Act, 1999 can be said to be a tribunal having
trappings of a Civil Court, i.e., be a tribunal akin toPage 45 of 88
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a Civil Court?
(ii) If the answer to question no. (i) is in affirmative,
what would be the impact and effect of Section
100A of the Code of Civil Procedure in the present
proceedings?
(iii) The resultant question would be whether intra
court appeal under Clause 15 of Letters Patent
would be maintainable against the order of the
learned Single Judge exercising appellate
jurisdiction under Section 91 of the Trademark Act?
76. To answer these questions, we would first like to go
through the scheme of the TM Act, 1999, which is a
special enactment, enacted to amend and consolidate
the law related to trademarks, to provide for registration
and better protection of trademarks for goods and
services and for the prevention of the use of fraudulent
marks. Section 3 as contained in Chapter II of the Act
provides for appointment of the Registrar of trademarks
for the purposes of the Act by the notification of the
Central Government who shall be authorized to
discharge the functions of the Registrar under the Act.
77. Section 5 provides for establishment of a Trademark
Registry and provides that the Trademark Registry
established under the TMM Act, 1954 shall be the
Trademark Registry under this Act. Under sub-section
(3), the Central Government by notification in the official
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gazette may define the territorial limits within which an
office of the trademarks registry may exercise its
functions. There shall be a seal of the trademarks
registry as per sub-section (4) of Section 5..
78. Other provisions in Chapter II provides for keeping a
register of trademarks, the grounds for refusal of
registration, prohibition of registration in certain cases
and registration of parts of trademark and of trademarks
as a series, registration as associated trademark and the
effect of registration of parts of a mark.
79. Chapter III provides procedure and duration of
registration. Sections 19 to 22 providing procedure for
registration contained in Chapter III are relevant to be
noted hereinunder :-
“19. Withdrawal of acceptance.–Where, after
the acceptance of an application for registration of
a trade mark but before its registration, the
Registrar is satisfied–
(a) that the application has been accepted in error;
or
(b) that in the circumstances of the case the trade
mark should not be registered or should be
registered subject to conditions or limitations or to
conditions additional to or different from the
conditions or limitations subject to which the
application has been accepted,
the Registrar may, after hearing the applicant if he
so desires, withdraw the acceptance and proceed
as if the application had not been accepted.
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20. Advertisement of application.–(1) When an
application for registration of a trade mark has
been accepted, whether absolutely or subject to
conditions or limitations, the Registrar shall, as
soon as may be after acceptance, cause the
application as accepted together with the
conditions or limitations, if any, subject to which it
has been accepted, to be advertised in the
prescribed manner:
Provided that the Registrar may cause the
application to be advertised before acceptance if it
relates to a trade mark to which sub-section (1) of
section 9 and sub-sections (1) and (2) of section 11
apply, or in any other case where it appears to him
that it is expedient by reason of any exceptional
circumstances so to do.
(2) Where–
(a) an application has been advertised before
acceptance under sub-section (1); or
(b) after advertisement of an application,–
(i) an error in the application has been corrected;
or
(ii) the application has been permitted to be
amended under section 22
the Registrar may in his discretion cause the
application to be advertised again or in any case
falling under clause (b) may, instead of causing the
application to be advertised again, notify in the
prescribed manner the correction or amendment
made in the application.
21. Opposition to registration.–1 [(1) Any
person may, within four months from the date of
the advertisement or re-advertisement of an
application for registration, give notice in writing in
the prescribed manner and on payment of such fee
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as may be prescribed, to the Registrar, of
opposition to the registration.]
(2) The Registrar shall serve a copy of the notice on
the applicant for registration and, within two
months from the receipt by the applicant of such
copy of the notice of opposition, the applicant shall
send to the Registrar in the prescribed manner a
counterstatement of the grounds on which he relies
for his application, and if he does not do so he shall
be deemed to have abandoned his application.
(3) If the applicant sends such counter-statement,
the Registrar shall serve a copy thereof on the
person giving notice of opposition.
(4) Any evidence upon which the opponent and the
applicant may rely shall be submitted in the
prescribed manner and within the prescribed time
to the Registrar, and the Registrar shall give an
opportunity to them to be heard, if they so desire.
(5) The Registrar shall, after hearing the parties, if
so required, and considering the evidence, decide
whether and subject to what conditions or
limitations, if any, the registration is to be
permitted, and may take into account a ground of
objection whether relied upon by the opponent or
not.
(6) Where a person giving notice of opposition or an
applicant sending a counter-statement after receipt
of a copy of such notice neither resides nor carries
on business in India, the Registrar may require him
to give security for the costs of proceedings before
him, and in default of such security being duly
given, may treat the opposition or application, as
the case may be, as abandoned.
(7) The Registrar may, on request, permit
correction of any error in, or any amendment of, a
notice of opposition or a counter-statement on such
terms as he thinks just.
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22. Correction and amendment.–The Registrar
may, on such terms as he thinks just, at any time,
whether before or after acceptance of an
application for registration under section 18,
permit the correction of any error in or in
connection with the application or permit an
amendment of the application:
Provided that if an amendment is made to a single
application referred to in sub-section (2) of section
18 involving division of such application into two or
more applications, the date of making of the initial
application shall be deemed to be the date of
making of the divided applications so divided.”
80. As an effect of registration, suffice it to note that the
provisions contained in Chapter IV provides for the
rights conferred by registration and the effect of a
registered trademark for claiming infringement etc.
Other chapters contain specific provisions of registration
of various trademarks and the cancellation or variation
etc. and the claim for infringement. Section 127 of the
TM Act 1999 providing for the powers of the Registrar of
Trademarks reads as under:-
“127. Powers of Registrar.–In all proceedings
under this Act before the Registrar,–
(a) the Registrar shall have all the powers of a civil
court for the purposes of receiving evidence,
administering oaths, enforcing the attendance of
witnesses, compelling the discovery and production
of documents and issuing commissions for the
examination of witnesses;
(b) the Registrar may, subject to any rules made in
this behalf under section 157, make such orders as
to costs as he considers reasonable, and any suchPage 50 of 88
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order shall be executable as a decree of a civil
court:
Provided that the Registrar shall have no power to
award costs to or against any party on an appeal to
him against a refusal of the proprietor of a
certification trade mark to certify goods or
provision of services or to authorise the use of the
mark;
81. Sections 128 to 132 providing for the manner in which
the proceedings can be conducted by the Registrar
Trademarks are also relevant to be noted hereinunder :-
“128. Exercise of discretionary power by
Registrar.–Subject to the provisions of section
131, the Registrar shall not exercise any
discretionary or other power vested to him by this
Act or the rules made thereunder adversely to a
person applying for the exercise of that power
without (if so required by that person within the
prescribed time) giving to the person an
opportunity of being heard.
129. Evidence before Registrar.–In any
proceeding under this Act before the Registrar,
evidence shall be given by affidavit: Provided that
the Registrar may, if he thinks fit, take oral
evidence in lieu of, or in addition to, such evidence
by affidavit.
130. Death of party to a proceeding.–If a
person who is a party to a proceeding under this
Act (not being a proceeding before the Appellate
Board or a court) dies pending the proceeding, the
Registrar may, on request, and on proof to his
satisfaction of the transmission of the interest of
the deceased person, substitute in the proceeding
his successor in interest in his place, or, if the
Registrar is of opinion that the interest of the
deceased person is sufficiently represented by thePage 51 of 88
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surviving parties, permit the proceeding to
continue without the substitution of his successor
in interest.
131. Extension of time.–(1) If the Registrar is
satisfied, on application made to him in the
prescribed manner and accompanied by the
prescribed fee, that there is sufficient cause for
extending the time for doing any act (not being a
time expressly provided in this Act), whether the
time so specified has expired or not, he may,
subject to such conditions as he may think fit to
impose, extend the time and inform the parties
accordingly.
(2) Nothing in sub-section (1) shall be deemed to
require the Registrar to hear the parties before
disposing of an application for extension of time,
and no appeal shall lie from any order of the
Registrar under this section.
132. Abandonment.–Where, in the opinion of the
Registrar, an applicant is in default in the
prosecution of an application filed under this Act or
any Act relating to trade marks in force prior to the
commencement of this Act, the Registrar may, by
notice require the applicant to remedy the default
within a time specified and after giving him, if so,
desired, an opportunity of being heard, treat the
application as abandoned, unless the default is
remedied within the time specified in the notice.”
82. The Trademark Rules 2017 framed by the Central
Government in exercise of powers under sub-section (4)
of Section 157 of the TM Act, set out extensive
procedure for making of the application and registration
of the trademarks application. Rule 33 provides as to
how the Registrar shall cause the examination of the
application for registration of trade mark and that it may
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require any evidence of use of distinctiveness of any
other matter to be furnished by the applicant. In case
the response to the examination report is not
satisfactory, or where the applicant has requested for
hearing, the Registrar shall have to provide an
opportunity of hearing to the applicant.
83. Rule 39 provides for advertisement of every application
for registration of trademark in journal, as per the
procedure therein how notice on opposition therein,
counter statement and evidence in support of opposition
and in support of application can be filed.
84. Rules 45, 46, 47, 50 when read in tandem, would show
that :-
i. Evidence in support of opposition or in support of
application are to be filed before the Registrar by way
of affidavit and the parties are required to exchange
their evidence.
ii. No further evidence can be filed by either side, in any
proceedings before the Registrar, but may grant leave
to either of the parties to file/lead any evidence at any
time, if he thinks fit, upon such terms as to costs or
otherwise.
iii. After closure of evidence, the Registrar shall have to
give notice to the parties of the first date of hearing
and conduct the proceedings in a way that not too
many adjournments would be granted to any of thePage 53 of 88
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parties.
85. Rules 33, 45 to 50, contained in Chapter II pertaining to
procedure for registration of Trademark application
under the Trade Marks Rules 2017, are also relevant to
be extracted hereinunder :-
“33. Examination, Objection to acceptance,
hearing.
(1)The Registrar shall cause the application to be
examined as per provisions of the Act, wherein a
search shall also be conducted amongst the earlier
trademarks, registered or applied for registration,
for the purpose of ascertaining whether there are
on record in respect of the same goods or services
or similar goods or services any trademark
identical with or deceptively similar to the
trademark applied for. The Registrar may cause the
re-examination of the application including re-
search of earlier trademarks at any time before the
acceptance of the application but shall not be
bound to do so.
(2)If, on consideration of the application for
registration of a trademark and any evidence of use
or of distinctiveness or of any other matter which
the applicant may or may be required to furnish,
the Registrar has any objection to the acceptance
of the application or proposes to accept it subject
to such conditions, amendments, modifications or
limitations as he may think fit to impose under sub-
section (4) of section 18, the Registrar shall
communicate such objection or proposal in writing
to the applicant in the form of an examination
report.
(3)If, on consideration of the application for
registration of a trademark and any evidence of use
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or of distinctiveness or of any other matter which
the applicant may or may be required to furnish,
the Registrar accepts the application for
registration absolutely, he shall communicate such
acceptance to the applicant and cause the
application to be advertised as accepted under sub-
section (1) of section 20.
(4)If, within one month from the date of receipt of
the examination report, the applicant fails to
respond to the communication, the Registrar may
treat the application as abandoned.
(5)In case the response to the examination report is
received within the aforesaid time, the same shall
be duly considered and if the Registrar accepts the
application for registration, he shall communicate
such acceptance to the applicant and cause the
application to be advertised as accepted under sub-
section (1) of section 20.
(6)If the response to the examination report is not
satisfactory or where the applicant has requested
for hearing, the registrar shall provide an
opportunity of hearing to the applicant and the
same shall be conducted as per rule 115.
(7)In case the applicant fails to appear at the
scheduled date of hearing and no reply to the office
objection has been submitted by the applicant, the
Registrar may treat the application as abandoned.
(8)Where the applicant has submitted his reply to
the examination report within the aforesaid period
or has appeared in the hearing and made his
submissions, the Registrar shall pass an
appropriate order.”
“45. Evidence in support of opposition.
(1)Within two months from service of a copy of the
counterstatement, the opponent shall either leave
with the Registrar, such evidence by way ofPage 55 of 88
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affidavit as he may desire to adduce in support of
his opposition or shall intimate to the Registrar and
to the applicant in writing that he does not desire
to adduce evidence in support of his opposition but
intends to rely on the facts stated in the notice of
opposition. He shall deliver to the applicant copies
of any evidence including exhibits, if any, that he
leaves with the Registrar under this sub-rule and
intimate the Registrar in writing of such delivery.
(2)If an opponent takes no action under sub-rule (1)
within the time mentioned therein, he shall be
deemed to have abandoned his opposition.”
“50. Hearing and decision.
(1)The Registrar, after the closure of the evidence,
shall give notice to the parties of the first date of
hearing. The date of hearing shall be for a date at
least one month after the date of the first notice.
(2)A party to a proceeding may make a request for
adjournment of the hearing with reasonable cause
in Form TM-M accompanied by the prescribed fee,
at least three days before the date of hearing and
the Registrar, if he thinks fit to do so, and upon
such terms as he may direct, may adjourn the
hearing and intimate the parties
accordingly:Provided that no party shall be given
more than two adjournments and each
adjournment shall not be for more than thirty days.
(3)If the applicant is not present at the adjourned
date of hearing and at the time mentioned in the
notice, the application may be treated as
abandoned.
(4)If the opponent is not present at the adjourned
date of hearing and at time mentioned in the
notice, the opposition may be dismissed for want of
prosecution and the application may proceed to
registration subject to section 19.
(5)The Registrar shall consider written arguments
if submitted by a party to the proceeding.
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(6)The decision of the Registrar shall be
communicated to the parties in writing at the
address given for service.”
86. A bare reading of the abovenoted provisions indicate
that the Registrar of Trademarks has been conferred
with :-
(i) The powers of a civil court for the purposes of
receiving evidence, administering oaths, enforcing
the attendance of witnesses, compelling the
discovery and production of documents and issuing
commissions for the examination of the witness;
(ii) Impose cost as he considers reasonable subject by
making such order, which shall be executable as a
decree of a civil court.
(iii) Review his own decision on an application made in
the prescribed manner.
(iv) In the proceedings before the Registrar, evidence
shall be given on affidavit. However, if he thinks
fit, oral evidence may be adduced in lieu of or in
addition to such evidence given by affidavit.
87. In light of the above noted powers of the Registrar
conferred under the TMM Act of 1990 and the Rules
made thereunder, the next step would be to examine as
to what constitutes “trappings of a court”.
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88. Gajendragadkar CJ in Associated Cement Companies
Ltd. v. P.N. Sharma [1964 SCC OnLine SC 62], the
Constitution Bench has answered the question as to
whether the State of Punjab exercising its appellate
jurisdiction under Rule 6(6) of the Punjab Welfare
Officers Recruitment and Condition of Service Rules,
1952 is a tribunal within the meaning of Article 136(1) of
the Constitution. Considering what would be the basic
and fundamental feature common to both the courts and
the tribunal, it was observed in paragraph 9 as under:-
“9. Tribunals which fall within the purview of
Article 136(1) occupy a special position of their
own under the scheme of our Constitution. Special
matters and questions are entrusted to them for
their decision and in that sense, they share with the
courts one common characteristic; both the courts
and the tribunals are “constituted by the State and
are invested with judicial as distinguished from
purely administrative or executive functions”, (vide
Durga Shankar Mehta v. Thakur Raghuraj Singh
[(1955) 1 SCR 267 at p. 272] ). They are both
adjudicating bodies and they deal with and finally
determine disputes between parties which are
entrusted to their jurisdiction. The procedure
followed by the courts is regularly prescribed and
in discharging their functions and exercising their
powers, the courts have to conform to that
procedure. The procedure which the tribunals have
to follow may not always be so strictly prescribed,
but the approach adopted by both the courts and
the tribunals is substantially the same, and there is
no essential difference between the functions that
they discharge. As in the case of courts, so in the
case of tribunals, it is the State’s inherent judicial
power which has been transferred and by virtue of
the said power, it is the State’s inherent judicial
function which they discharge. Judicial functionsPage 58 of 88
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and judicial powers are one of the essential
attributes of a sovereign State, and on
considerations of policy, the State transfers its
judicial functions and powers mainly to the courts
established by the Constitution; but that does not
affect the competence of the State, by appropriate
measures, to transfer a part of its judicial powers
and functions to tribunals by entrusting to them the
task of adjudicating upon special matters and
disputes between parties. It is really not possible or
even expedient to attempt to describe exhaustively
the features which are common to the tribunals and
the courts, and features which are distinct and
separate. The basic and the fundamental feature
which is common to both the courts and the
tribunals is that they discharge judicial functions
and exercise judicial powers which inherently vest
in a sovereign State.”
89. It was further noted therein that in Indo-China Steam
Navigation Co. Ltd. v. Additional Collector of
Customs, [(1964) 34 Comp Cas 435 :1964 SCC
Online SC 42], the status of the Central Board of
Revenue exercising its appellate power under Sea
Customs Act, 1878 and that of the Central Government
exercising its power under Section 191 came to be
examined. The Apex Court has referred to the test of
trappings of a Court which may assist to determine
whether the proceedings before the authority in
question are judicial or not, besides the basic test
whether the authority in question had been constituted
by the State and had been given a part of the State’s
inherent judicial powers. It was, thus, observed in
paragraphs ’25 and 26′ as under :-
“25. It would thus be seen that in dealing with the
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question as to whether Respondent 2, while it
exercises its appellate power under Rule 6(6), is a
tribunal under Article 136(1), we must enquire
whether Respondent 2 has been clothed with the
State’s inherent judicial power to deal with disputes
between parties and determine them on the merits
fairly and objectively. That is the test which has been
consistently applied by this Court in considering the
question about the status of any body or authority as a
tribunal under Article 136(1). Before we proceed to
apply this test to Respondent 2’s status under Rule
6(6), we think it is necessary to advert to one aspect
of the matter which sometimes creates some
confusion.
26. We have referred to the three essential attributes
of a sovereign State and indicated that one of these
attributes is the legislative power and legislative
function of the State, and we have also seen that in
determining the status of an authority dealing with
disputes, we have to enquire whether the power
conferred on the said authority or body can be said to
be judicial power conferred on it by the State by
means of a statute or statutory rule. The use of the
expression “judicial power” in this context proceeds
on the well-recognised concept of political science
that along with legislative and executive powers,
judicial power vests in a sovereign State. In countries
where rigid separation of powers has been effected by
written Constitutions, the position is very different.
Take, for instance, the Australian Constitution.
Section 71 of the Commonwealth of Australia
Constitution Act (63 & 64 Vict. Chapter 12) provides
that the judicial power of the Commonwealth shall be
vested in a Federal Supreme Court, to be called the
High Court of Australia, and in such other federal
courts as Parliament creates, and in such other courts
as it invests with federal jurisdiction. The High Court
shall consist of a Chief Justice, and so many other
Justices, not less than two, as Parliament prescribes.
It is clear that the scheme of Sections 71 to 80 which
form part of Chapter III of the said Constitution, is
that the judicial power of the State can be conferredPage 60 of 88
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only on courts recognised by the provisions of the said
Chapter. In other words, it is not competent to the
legislature in Australia to confer judicial power
properly so-called on any body or authority other than
or apart from the courts recognised by Chapter III
and so, the use of the expression “judicial power” or
its conferment in regard to tribunals which are not
courts properly so-called, would under the Australian
Constitution be wholly inappropriate. If any tribunals
other than courts are established and power is given
to them to deal with and decide special disputes
between the parties, the power which such tribunals
would exercise cannot be described as judicial power,
but would have to be called quasi-judicial power.”
90. While explaining as to what really constitutes “trapping
of Court”, it was further observed in paragraph ’33’ as
under :-
“33. The question which we have to decide in the
present appeal is whether the State Government is a
tribunal when it exercises its authority under Rule
6(5) or Rule 6(6). No rules have been made
prescribing the procedure which the State
Government should follow in dealing with appeals
under these two sub-rules, and there is no statutory
provision conferring on the State Government any
specific powers which are usually associated with the
trial in courts and which are intended to help the
court in reaching its decisions. The requirements of
procedure which is followed in courts and the
possession of subsidiary powers which are given to
courts to try the cases before them, are described as
trappings of the courts, and so, it may be conceded
that these trappings are not shown to exist in the case
of the State Government which hears appeals under
Rule 6(5) and Rule 6(6). But as we have already
stated, the consideration about the presence of all or
some of the trappings of a court is really not decisive.
The presence of some of the trappings may assist the
determination of the question as to whether the
power exercised by the authority which possesses thePage 61 of 88
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said trappings, is the judicial power of the State or
not. The main and the basic test however, is whether
the adjudicating power which a particular authority is
empowered to exercise, has been conferred on it by a
statute and can be described as a part of the State’s
inherent power exercised in discharging its judicial
function. Applying this test, there can be no doubt
that the power which the State Government exercises
under Rule 6(5) and Rule 6(6) is a part of the State’s
judicial power. It has been conferred on the State
Government by a statutory rule and it can be
exercised in respect of disputes between the
management and its Welfare Officers. There is, in that
sense, a lis; there is affirmation by one party and
denial by another, and the dispute necessarily
involves the rights and obligations of the parties to it.
The order which the State Government ultimately
passes is described as its decision and it is made final
and binding. Besides, it is an order passed on appeal.
Having regard to these distinctive features of the
power conferred on the State Government by Rule
6(5) and Rule 6(6), we feel no hesitation in holding
that it is a tribunal within the meaning of Article
136(1).”
91. It was, thus, emphasized by the Constitution bench that
the main and basic test is whether the adjudicating
power which a particular authority is empowered to
exercise has been conferred on by a statute and can be
described as a part of the State’s inherent power
exercised in discharge of its judicial function. The
consideration about the presence of all or some of the
trappings of a court is really not decisive. However, the
presence of some of the trappings may assist the
determination of the question as to whether the power
exercised by the authority which possesses the said
trappings is the judicial power of the state or not.
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92. In a later judgment in Kihoto Hollohan v. Zachillhu
[1992 Supp (2) SCC 651], the Apex Court noted that
in paragraph ’98’ that :-
“98. But then is the Speaker or the Chairman
acting under Paragraph 6(1) a Tribunal? “All
tribunals are not courts, though all courts are
tribunals”. The word “courts” is used to designate
those tribunals which are set up in an organised
State for the Administration of Justice. By
Administration of Justice is meant the exercise of
judicial power of the State to maintain and uphold
rights and to punish “wrongs”. Whenever there is
an infringement of a right or an injury, the courts
are there to restore the vinculum juris, which is
disturbed. (See Harinagar Sugar Mills
Ltd. v. Shyam Sundar Jhunjhunwala [(1962) 2 SCR
339 : AIR 1961 SC 1669 : (1961) 31 Comp Cas 387]
). In that case Hidayatullah, J. said: (SCR p. 362)“… By ‘courts’ is meant courts of civil
judicature and by ‘tribunals’, those bodies of
men who are appointed to decide
controversies arising under certain special
laws. Among the powers of the State is
included the power to decide such
controversies. This is undoubtedly one of the
attributes of the State, and is aptly called the
judicial power of the State. In the exercise of
this power, a clear division is thus noticeable.
Broadly speaking, certain special matters go
before tribunals, and the residue goes before
the ordinary courts of civil judicature. Their
procedures may differ but the functions are
not essentially different. What distinguishes
them has never been successfully established.
Lord Stamp said that the real distinction is
that the courts have ‘an air of detachment’.
But this is more a matter of age and tradition
and is not of the essence. Many tribunals, in
recent years, have acquitted themselves soPage 63 of 88
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well and with such detachment as to make
this test insufficient.”
93. In State of Gujarat v. Gujarat Revenue Tribunal Bar
Assn., [(2012) 10 SCC 353], the Apex Court
elaborated that tribunals have primarily been
constituted to deal with cases under special laws and
hence, provide for specialised adjudication alongside the
Courts. Therefore, a particular Act/set of rules will
determine whether the functions of a particular tribunal
are akin to those of the Courts, which provide for the
basic administration of justice. Where there is a lis
between two contesting parties and a statutory authority
is required to decide such dispute between them, such
an authority may be called a quasi-judicial authority, i.e.
a situation where, (a) a statutory authority is empowered
under a statute to do any act; (b) the order of the
statutory authority would adversely affect the subject;
and (c) although there is no lis or two contending
parties, and the contest is between the authority and the
subject; and (d) the statutory authority is required to act
judicially under the statute, the decision of the said
authority is a quasi-judicial decision. It was held that an
authority may be described as a quasi-judicial authority
when it possesses certain attributes or “trappings of a
court”, but not all. In case certain powers under CPC or
CrPC have been conferred upon an authority, but it has
not been entrusted with the judicial powers of State, it
cannot be held to be a Court.
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94. It was further observed that a tribunal may not
necessarily be a Court, inspite of the fact that it may be
presided over by a judicial officer, or other qualified
persons may also possibly be appointed to perform such
duty. One of the tests to determine whether a tribunal is
a Court or not, is to check whether the High Court has
revisional jurisdiction so far as the judgments and orders
passed by the tribunal are concerned. While drawing
distinction between a “Court” and a “Tribunal”, it was
noted in paragraphs “19 and 20” as under :-
“19. In Harinagar Sugar Mills Ltd. v. Shyam
Sunder Jhunjhunwala [AIR 1961 SC 1669]
Hidayatullah, J. (as His Lordship then was) made a
distinction between a “court” and a “tribunal” as is
explained hereunder : (AIR p. 1680, para 32)“32. … These tribunals have the authority of law to
pronounce upon valuable rights; they act in a
judicial manner and even on evidence on oath, but
they are not part of the ordinary courts of civil
judicature. They share the exercise of the judicial
power of the State, but they are brought into
existence to implement some administrative policy
or to determine controversies arising out of some
administrative law. They are very similar to courts,
but are not courts. When the Constitution speaks of
‘courts’ in Article 136, 227 or 228 or in Articles 233
to 237 or in the Lists, it contemplates courts of civil
judicature but not tribunals other than such courts.
This is the reason for using both the expressions in
Articles 136 and 227.
By ‘courts’ is meant courts of civil judicature and
by ‘tribunals’, those bodies of men who are
appointed to decide controversies arising under
certain special laws. Among the powers of the State
is included the power to decide such controversies.
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This is undoubtedly one of the attributes of the
State, and is aptly called the judicial power of the
State. In the exercise of this power, a clear division
is thus noticeable. Broadly speaking, certain special
matters go before tribunals, and the residue goes
before the ordinary courts of civil judicature.”
(emphasis added)
20. To explain the distinction between a court and
tribunal, His Lordship further relied upon the
judgment in Shell Co. of Australia Ltd. v. Federal
Commr. of Taxation [1931 AC 275 : 1930 All ER
Rep 671 (PC)] wherein it has been observed as
under : (AC p. 297) “In that connection it may be
useful to enumerate some negative propositions on
this subject : (1) A tribunal is not necessarily a
court in this strict sense because it gives a final
decision. (2) Nor because it hears witnesses on
oath. (3) Nor because two or more contending
parties appear before it between whom it has to
decide. (4) Nor because it gives decisions which
affect the rights of subjects. (5) Nor because there
is an appeal to a court. (6) Nor because it is a body
to which a matter is referred by another body.”
95. All the above noted judgements are considered by the
Division Bench (Letters Patent Bench) of the Calcutta
High Court in Glorious Investment Ltd. (supra) in
paragraphs ’23 to 25′ therein.
96. With the aid of the decision of Privy Council in Shell
Co. of Australia Ltd. v. Federal Commr. of Taxation,
it was further noted by the Calcutta High Court as to
what defines judicial power and that Their Lordships in
Shell Co., enumerated certain negative propositions in
relation to the subject; (1) A tribunal is not necessarily a
Court in this strict sense because it gives a final
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decision; (2) Nor because it hears witnesses on oath; (3)
Nor because two or more contending parties appear
before it between whom it has to decide; (4) Nor
because it gives decisions which affect the rights of
subjects. (5) Nor because there is an appeal to a Court.
(6) Nor because it is a body to which a matter is referred
by another body.
97. In Bharat Bank Ltd. v. Employees [1950 SCC 470]
the test of the judicial Tribunal has been laid down as
under :-
“(1) The presentation (not necessarily orally) of
their case by the parties to the dispute;
(2) if the dispute between them is a question of
fact, the ascertainment of the fact by means of
evidence adduced by the parties to the dispute and
often with the assistance of argument by or on
behalf of the parties on the evidence;
(3) if the dispute between them is a question of law,
the submission of legal arguments by the parties;
and
(4) a decision which disposes of the whole matter
by a finding upon the facts in dispute and an
application of the law of the land to the facts so
found, including where required a ruling upon any
disputed question of law.”
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98. Thus, upon a holistic reading of various provisions of the
1999 Act and the Rules made thereunder, the Calcutta
High Court in Glorious Investment Limited (supra)
has observed in paragraph ’28-30′ as under:-
“28. Thus the Registrar has all powers including
power to review its decision and to impose costs
that a Civil Court has for the purposes mentioned in
Section 127 of the 1999 Act. The order as to costs
passed by the Registrar has been made executable
as a decree of Civil Court.
29. A journey through the provisions of Chapter III
of the 1999 Act would reveal that the process for
registration of a trademark is initiated by an
application made in terms of Section 18 by
a “person claiming to be the proprietor of a trade
mark or proposed to be used by him”. Section 20 of
the 1999 Act mandates advertisement of the
application and Section 21 thereof provides for
filing of opposition/counter-statement by any
person who seeks to oppose the application for
registration. Section 22 of the 1999 Act confers
power on the Registrar to allow amendment of the
application for registration. The Registrar is to
ultimately take a decision on the application filed
before it by either accepting the application or
rejecting the same upon considering the opposition
thereto, if any. The Trademarks Rules, 2017
(hereafter “the Rules”) have been framed by the
government in exercise of its powers under Section
157 of the 1999 Act, which provides a detailed
procedure for examination of an application for
registration, hearing of the objections thereto and
rendering a decision by the Registrar prior to its
acceptance.
30. A holistic reading of the various provisions of
the 1999 Act and the Rules framed thereunder
hardly leave any room for doubt that the Registrar
has almost all the trappings of a Court. We arePage 68 of 88
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conscious that there is no provision in the 1999 Act
whereby the proceedings before the Registrar has
been held to be judicial proceedings within the
meaning of the Code of Criminal
Procedure or Penal Code, 1860 as was there in
respect of the erstwhile Intellectual Property Law
Appellate Board under the pre-amendment 1999
Act or the CLB under the 1956 Act but then that by
itself would not detract us from the conclusion that
the Registrar has all the trappings of a Civil Court
for the purpose of deciding as to whether a mark
should be registered in favour of a person or not. A
decision to register makes the person concerned
the exclusive owner of the registered trademark in
terms of Section 28 of the 1999 Act. Such decision
is taken on the basis of the evidence adduced by
the person concerned and upon considering the
opposition to the application along with the
evidence in support of the opposition. The Registrar
thus has a duty to act judicially and fairly. Even if
an opposition is not filed, the Registrar has a duty
to objectively scrutinise the application, examine
the facts in the light of the evidence adduced in
order to determine if the trademark meets the
requirements for registration under the 1999 Act
and then take a decision. The same would have
been a case for a Civil Court as well where the
defendant had not filed its written statement and
the case was proceeding ex-parte. The Court would
also in such a case be required to pass a judgment
in favour of the plaintiff only upon the plaintiff
proving his case. The decision taken by the
Registrar to either accept the request for
registration or to reject the same directly impacts
and determines the applicant’s legal rights and
liabilities and in a case of an opposition the rights
and liabilities of both the parties. This is an
essential characteristic of a judicial function.”
99. Having gone through the scheme of the Trade Marks
Act, 1999 and the Trademark Rules, 2017 made
thereunder, considering the nature of the powers
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conferred upon the Registrar of Trademarks to make
inquiries on an application for registration or opposition
thereto, we found ourselves in complete agreement with
the opinion drawn by the Calcutta High Court in
Glorious Investments (supra) that the Registrar of
Trademarks while exercising the powers and functions
under the TM Act, 1999 acts as a tribunal, having
“trappings of a Court”. Further, keeping in mind the
tests laid down by Gajendragadkar CJ in Associated
Cement Companies Limited (supra), which are the
main and basic tests, we also reach at an irresistible
conclusion that the adjudicating power conferred upon
the Registrar of Trade Marks by the Central statute (the
Trade Marks Act, 1999), can be described as part of the
State’s inherent power exercised in discharging its
judicial function and that the possession of the
subsidiary powers which are given to the Civil courts to
try cases before them, makes the Registrar, a statutory
authority, “a Tribunal having trappings of the courts”.
100. Having regard to the nature of the powers conferred on
the Registrar of Trademarks, there is no room for doubt
that the main and basic test of the power exercised by
the authority being the judicial power of the State and
the assistive test of the presence of “trappings of a
court” in discharge of such judicial power stands
satisfied in the present case in view of the scheme of the
Trade Marks Act, 1999 and the Rules, 2017 made
thereunder. The first question is, thus, answered in the
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affirmative.
101. Having answered the first question, we may now move
to the second issue as to the applicability of Section
100A of the Code of Civil Procedure ousting Letters
Patent jurisdiction in a matter where the single Judge
decides statutory appeal against the order of a tribunal
(the Registrar of Trademarks in the present case). To
hold that any avenue of Letters Patent Appeal against
the order passed under Section 91 of the 1999 Act is
ousted for the Registrar being a Tribunal having
“trappings of a Court”, the Division Bench of the
Calcutta High Court in Glorious Investment Limited
(supra) relied upon the decision of Apex Court in
Kamal Kumar Dutta (supra).
102. The Apex Court in Kamal Kumar Dutta (supra), while
dealing with the challenge to the order of the Company
judge has answered the preliminary objection that the
appellants therein had an alternative remedy of
approaching the Division Bench of the Calcutta High
Court under Clause 15 of the Letters Patent and hence
the Apex Court may not entertain the appeal.
103. It was argued, in rebuttal to the preliminary objection,
that in view of the latest amendment in the Code of Civil
Procedure, Letters Patent or intra court appeal will not
lie when the learned Single Judge has exercised
appellate jurisdiction. It was urged therein that this
amendment seems to have been brought about on the
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recommendations of the Malimath Committee report
that right to appeal should be curtailed and only one
appellate forum should be available.
104. Further, dealing with the argument that the appeal is a
vested right, it was observed theein that there can be no
quarrel with the said general proposition of law but such
a right can be taken away by a subsequent amendment
either expressly or by necessary intendment. The
Parliament while amending Section 100-A of the Code of
Civil Procedure by Amending Act 22 of 2002 w.e.f.
1.7.2002, took away the Letters Patent power of the
High Court against an order of the learned Single Judge
in the matter of appeal to the Division Bench.
105. Therefore, where appeal has been decided from an
original order by a Single Judge, no further (second)
appeal has been provided and that power which used to
be there under the Letters Patent of the High Court has
been subsequently withdrawn. It was held that the order
passed by the Company Law Board was challenged in an
appeal before the High Court provided under Section 10-
F of the Companies Act, 1956, and that appeal is an
appeal from the original order, in that case, no further
Letters Patent appeal shall lie to the Division Bench of
the High Court.
106. Referring to the Constitution Bench judgment in P.S.
Sathappan versus Andhra Bank Limited [(2004) 11
SCC 672], it was noted that by the Amendment Act of
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2002, a specific exclusion is provided as the legislature
knew that in absence of such provision, a Letters Patent
appeal would not be barred.
107. The legislature was aware that it had incorporated the
savings clause in Section 104(1) and incorporated
Section 4 CPC. Thus, now a specific exclusion was
provided.
108. Considering Subal Paul (supra), it was noted in
paragraph ’27’ in Kamal Kumar Dutta (Supra) as
under :-
“27. Similarly, in Subal Paul v. Malina Paul [(2003)
10 SCC 361] their Lordships observed as follows:
(SCC p. 368, para 20)
“Whenever the statute provides such a bar, it
is so expressly stated, as would appear from
Section 100-A of the Code of Civil Procedure.”
109. The conclusion in paragraph ’28’ are noted herein
under :-
“28. In Gandla Pannala Bhulaxmi v. Managing
Director, A.P. SRTC [AIR 2003 AP 458 (FB)] the
Full Bench of the Andhra Pradesh High Court has
taken a similar view in the matter. Same is the view
taken by the Full Bench of the Kerala High Court
in Kesava Pillai Sreedharan Pillai v. State of
Kerala [AIR 2004 Ker 111 (FB)] . Therefore, in this
view of the matter, we are of the opinion that the
preliminary objection raised by Mr Nariman cannot
be sustained and the same is overruled.”
110. It was observed in Kamal Kumar Dutta (Supra) that
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intendment of the Legislature / Parliament to take away
the right of Letters Patent appeal is evident from the
provisions of Section 100-A and the reasons for
amendment in the CPC. The power of the High Court in
exercising the Letters Patent in a matter where a single
judge has decided the appeal from the original order has
been taken away. In the context of the said matter
where the learned Single Judge has exercised powers
under the Companies Act, 1956 against the order of the
Company Law Board, it was held that the Company Law
Board had exercised quasi-judicial power as original
authority. It may not be a Court but it has all the
trappings of a court. The Company Law Board exercised
its original jurisdiction under Section 397 and 398 of the
Act passed the order and against that order appeal lies
to the learned Single Judge of the High Court and,
therefore, no further appeal could be filed.
111. This test of “trappings of a court” applied in Kamal
Kumar Dutta (Supra) has been further applied by the
Calcutta High Court in Glorious Investment Limited
(Supra) to observe in Paragraphs ’17 and 18′ as under :-
“17. The conclusion reached by the Division Bench
of Delhi High Court that the bar contained in
Section 100A of the Code would apply only to an
appeal carried against an order of a Court is quite
apt. However, when the Hon’ble Supreme Court
has in the case of Kamal Kumar Dutta (supra)
extended the prohibition contained in the said
provision to an order passed by the Company Law
Board also, on the ground that the same has “all
trappings of a Court” we would fail in our duty ifPage 74 of 88
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we stop short of examining as to whether or not the
Registrar has all the trappings of a Court. The
Division Bench of the Delhi High Court was
“doubtful whether the “trappings of a court” test as
generally formulated would have any
application.” The later observation of the Delhi
High Court in the paragraph extracted above that
“However, even if we were to proceed on the basis
that such a test could be justifiably invoked for the
purposes of Section 100A, the Registrar of
Trademarks would not qualify the standards as
enunciated.”- is a conclusion which was reached on
the basis that there was no deeming provision in
the 1999 Act whereunder the Registrar could be
treated to be a Court. We therefore need to conduct
the test.
18. Before proceeding further, it needs to be
pointed out that the earlier judgment in the case
of National Sewing Thread Co. Ltd. (supra) which
was decided by a larger Bench (i.e. three Judge
Bench) of the Hon’ble Supreme Court has not been
considered in Kamal Kumar Dutta (supra). This
would have denuded Kamal Kumar Dutta (supra) of
its authority as a precedent on the present issue
but since the same has been decided on the basis of
Section 100A of the Code which was not in
existence when National Sewing Thread Co.
Ltd. (supra) was decided, therefore, the
precedential flavour of Kamal Kumar Dutta (supra)
remains intact.”
112. It was rightly noted therein that at the time when
National Sewing Thread Company Limited [Supra]
was delivered, Section 100A was not there in the Code.
With the insertion of the said provision, as held in
Kamal Kumar Dutta (Supra), the right of intra-court
appeal by virtue of Section 100A has been taken away,
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where the order of the learned Single Judge is directed
against an original order of the tribunal having
trappings of a court or the Court.
113. It was, thus, concluded that heavy reliance placed by
learned counsel for the appellant therein over the
decision of the Apex Court in National Sewing Thread
Company Limited (Supra) is of no help, and to be
distinguished in view of the later decision in Kamal
Kumar Dutta (Supra), post-amendment 2002 in the
Code of Civil Procedure.
114. Coming to the decision of the Division Bench of Delhi
High Court in Promoshirt SM SA (Supra), relied by
the learned counsel for the appellant herein we may
note that while answering the question whether Section
100A of the Code, while prescribing that no further
appeal would lie from an original or appellate decree or
order preferred by a learned Judge of a High Court
would also extend to appeals that may be preferred in
terms of Letters Patent against the judgement rendered
by a Single Bench of the High Court in terms of Section
91 of the TM Act’ 1999, the Delhi High Court has not
examined the issue as to whether or not, the Registrar of
the Trademarks exercising powers under the TM Act’
1999 can be said to be a tribunal having “trappings of
the Court”.
115. The Division Bench of the Delhi High Court has simply
proceeded on the premise that the Registrar of
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trademarks is not a Civil court even though some of the
powers that are otherwise available with a civil court
may have been placed in its hand and be exercised by it.
It is simply held therein that the powers conferred on
the registrar does not qualify the test of ‘trappings of the
court’ in light of the decisions of the Apex Court in
Khoday Distilleries Ltd. v. Scotch Whisky Assn.
[(2008) 10 SCC 723] and the Bombay High Court in
the Anglo French Drug C. (Eastern) Private Ltd. vs.
R.D. Tinaikar [1957 SCC Online Bom 165] and since
Section 91 of the TM Act 1999 does not prescribe the
appellate remedy to be governed by the provisions of the
Code of Civil Procedure, the Letters Patent Appeal
against an order passed by a Single Judge while
exercising the Section 91, would not be barred.
116. The Delhi High Court in Promoshirt SM SA (supra),
while making the abovenoted observations, has
answered the issue of applicability of Section 100A of
the Code of Civil Procedure with the idea that the
exclusion therein would only apply to an appeal against
the judgment of a Single Judge exercising appellate
power provided under the Code of Civil Procedure or
where the special statute subjects the appeal remedy to
follow the rules applicable to appeals embodied in the
Code, i.e. where the appeal is made subject to the rules
incorporated in Code of Civil Procedure.
117. The Delhi High Court, proceeded on the premise that the
tribunal is not a civil court, and in view of the decision of
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the Apex Court in Khoday Distilleries Ltd. (supra)
and Bombay High Court in Anglo French Drug C.
(Eastern) Private Ltd.(supra), the Registrar, Trade
Marks cannot be regarded as a civil court merely
because it has been given powers of a civil court for
certain purposes.
118. There is absolutely no discussion or consideration of the
decision of the Apex Court in Kamal Kumar Dutta
(supra) by the Delhi High Court in Promoshirt SM SA
(supra) where the Apex Court has held that Company
law board having “trappings of the Court”, its order
when subjected to challenge before the learned Single
Judge under the statutory powers conferred under the
Companies Act, 1996, Letters Patent Appeal in view of
the exclusion by Section 100A of the Code of Civil
Procedure, would not be maintainable.
119. The Division bench of the Delhi High Court while making
a distinction between two sets of statutes where the
appeal remedy is to follow the rules applicable to
appeals embodied in the Court and where the powers of
the Civil Court has been conferred to a limited extent by
the borrowing from the Code of Civil Procedure has
ignored an important aspect of the matter that tribunals
which have been created under the special statutes are
in substitute to the Civil Court when they exercise
special powers under the statute in exercise of judicial
powers of the State.
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120. It has ignored that when the procedures under CPC are
borrowed conferring powers upon the tribunal for
adjudication of the dispute, it would mean that such
tribunals have all the trappings of the Court, and be
treated as akin to the Civil Court.
121. The Apex Court in Radhey Shyam (supra) held that
the extraordinary supervisory jurisdiction of the High
Court in Article 227 of the Constitution of India would be
available against the order of the Civil Court and
tribunals having trappings of the Court, subordinate to
the High Court. And it is for this reason, the Apex Court
in Umaji Keshao Meshram (supra), has held that
Letters Patent appeal in Clause 15 of the Letters Patent
is expressly barred against the decision of the Single
Bench of the High Court in Article 227 of the
Constitution of India.
122. At this stage, we are also required to consider the
language employed in Clause 15 of the Letters Patent,
which reads as under:-
“15. Appeal from the Courts of original
jurisdiction to the High Court in its appellate
jurisdiction.- And we do further ordain that an
appeal shall lie to the said High Court of Judicature
at [Madras], [Bombay], Fort William in Bengal from
the judgment (not being a judgment passed in the
exercise of appellate jurisdiction in respect of a
decree or order made in the exercise of appellate
jurisdiction by a Court subject to the
superintendence of the said High Court and not
being an order made in the exercise of a revisional
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passed or made in exercise of the power of
superintendence under the provisions of section
107 of the Government of India Act, or in the
exercise of criminal jurisdiction) of one Judge of the
said High Court or one Judge of any Division Court,
pursuant to section 108 of the Government of India
Act, and that notwithstanding anything
hereinbefore provided, an appeal shall lie to the
said High Court from a judgment of one Judge of
the said High Court or one Judge of any Division
Court, pursuant to section 108 of the Govern-ment
of India Act, [on or after the first day of February,
1929] in the exercise of appellate jurisdiction in
respect of a decree or order made in the exercise of
appellate jurisdiction by a Court subject to the
superintendence of the said High Court where the
Judge who passed the judgment declares that the
case is a fit one for appeal; but that the right of
appeal from other judgments of Judges of the said
High Court or of such Division Court shall be to Us,
Our heirs or successors in Our or Their Privy
Council, as hereinafter provided.”
123. From the heading of Clause 15, itself it appears that it
provides for appeal from the court of original jurisdiction
to the High Court in its appellate jurisdiction, meaning
thereby from the judgment and order of one judge of the
High Court in exercise of its original jurisdiction to a
Division Bench;
(a) not being a judgement passed in exercise of
appellate jurisdiction in respect of a decree or
order made in the exercise of appellate jurisdiction
by a Court, subject to the superintendence of the
said High Court,
(b) and not being an order made in the exercise of
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a revisional jurisdiction,
(c) and not being a sentence or order passed or
made in exercise of the power of superintendence
under the provisions of Section 107 of the
Government of India Act, or in the exercise of
criminal jurisdiction.
124. The first clause of exclusion, “not being a judgment passed
in the exercise of appellate jurisdiction in respect of a
decree or order made in the exercise of appellate
jurisdiction by a Court, subject to the superintendence of
the said High Court,” is relevant for our consideration in
the facts and circumstances of the present case.
125. A careful reading of the above indicates that Clause 15
excludes for a Letters Patent Appeal against a judgment of
a Single Bench, passed in exercise of appellate jurisdiction
in respect of a decree or order made in the exercise of
appellate jurisdiction by a Court, which is subject to
superintendence of the High Court. Meaning thereby, the
third appeal before the Division Bench under Clause 15 of
the Letters Patent, would not be maintainable.
126. Further, the judgment or order passed by the High Court in
exercise of its appellate jurisdiction under Section 91 of the
Trade Marks Act, 1999, being an order of a Single Judge
against the order of the tribunal having trappings of the
court, will not qualify Clause 15 of Letters Patent to
maintain an appeal thereunder before the Division Bench,
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in view of the exclusion by virtue of Section 100A of the
Code of Civil Procedure.
127. There is one more aspect of the matter. The TM Act’ 1999
has been brought to amend the law relating to trade marks,
repealing Trade and Merchandise Marks Act, 1958.
Section 109 of the TMM Act’ 1958 provided for two stages
of appeal before the High Court by virtue of sub-section (4)
and sub-section (5) therein.
128. Section 91 of the TM’ Act, 1999, as was originally enacted
in the year 1999 provided for appeal under Section 91
before an Appellate Board. The ‘Appellate Board’ has been
substituted by Tribunals Reforms Act, 2021 (33 of 2021) by
the ‘High Court’ with effect from 04.04.2021.
129. On a comparison of Section 109 of the erstwhile TMM Act,
1958 and Section 91 of TM Act, 1999 as amended by Act 33
of 2021, it is clear that w.e.f. 04.04.2021, the statutory
appeal under Section 91 lies with the High Court. While
Section 109 of the erstwhile TMM Act, 1958 provided for
two stages of appeal, i.e. a further appeal to a bench of the
High Court against the appellate order of a single judge of
the High Court, Section 91 of TM Act’ 1999 provides for
only one appeal. The forum of second appeal, thus, has
been taken away by the legislature.
130. In light of the above, we find ourselves in complete
agreement with the opinion of the Calcutta High Court in
Glorious Investment Limited (Supra), when it says that
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deletion of a provision from a statute is to be given due
weightage in probing the legislative intent. The question
posed by it was “why should a similar consideration not be
factored in while considering a successor legislation given
the fact that a specific provision for appeal which was there
in the predecessor Act is not there in the successor Act?”
131. While answering the same, it was noted that while the
Tribunals Reforms Act, 2021 was enacted bringing several
amendments in the 1999 Act and one change was made of
the appellate forum under Section 91 from the ‘Appellate
Board’ to the High Court, notably apart from the change of
the forum of appeal, the other portion of Section 91 was left
untouched. It was held that it is settled law that no appeal
can be preferred without there being any provision
therefor. It is equally settled that a specific statute may
exclude a general appellate provision both expressly as well
as by implication. Here, the exclusion is express by
application of Section 100A of CPC and is tacitly implied by
the exclusion of the second appellate provision in the
present statute which was there in the predecessor statute.
132. The Calcutta High Court, thus, has proceeded on the
principle that the special enactment of Trade Marks Act,
1999 was brought in a departure from the erstwhile TMM
Act, 1958, curtailing one more level of appeal to the High
Court. The exclusion of one level of appeal in the successor
Act, i.e., 1999 Act makes clear the intention of the
legislature not to provide a forum for second appeal against
the appellate order of a single bench of the High Court.
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133. This is one aspect which, in our opinion, is to be factored in
while dealing with the arguments of the appellant of
maintainability of second level of appeal in the form of
Letters Patent Appeal.
134. With the above reasonings, the Calcutta High Court
disagreed with the view taken by the Delhi High Court in
the case of Promoshirt SM SA (supra).
135. In view of the above discussion, the legal position in the
matter of maintainability of Letters Patent Appeal against
the order of learned Single Judge under Section 91 of the
Trade Marks Act, 1999 can be culled out as under:-
a) The Registrar of Trade Marks while exercising powers
under the Trade Marks Act in the matter of
registration of trademarks under the provisions
contained in Chapter III, exercises quasi-judicial
power, and in view of Sections 127, 129 and the rules
prescribing procedure for exercise of power framed
under the Act, namely, Trade Marks Rules, 2017, the
Registrar acts as a tribunal, having ‘trappings of the
court’, though it may not be a court of civil judicature
stricto sensu.
b) The language of Section 100A CPC does not suggest
that the exclusion of the right of appeal under the
letters patent is confined only to the matters arising
under the Code of Civil Procedure and not under any
statutory enactments.
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c) Under Clause 15 of Letters Patent, the Letters Patent
Appeal is maintainable before a Division Bench
against the judgment and order of the High Court in
exercise of its original jurisdiction, not being a
judgment passed in exercise of appellate jurisdiction
in respect of a decree or order made by a court,
subject to the superintendence of the High Court.
d) The exercise of power by a Single Bench of the High
Court under Section 91 of the Trade Marks Act, 1999
is in exercise of appellate jurisdiction and not in
original jurisdiction, for the Registrar of Trade Marks
being a tribunal having trappings of the Court, and
hence, Letters Patent Appeal under clause 15 of the
letters patent would not be maintainable, in view of
exclusion under Section 100A of the CPC.
e) Section 100A of the Code of Civil Procedure
specifically excludes Letters Patent Appeal for any
High Court, where any appeal from an original or
appellate decree or order is heard and decided by a
Single Judge of a High Court, with the words, “no
further appeal shall lie from the judgment and decree
of such Single Judge.” In view of the specific exclusion
of the second appeal in the shape of a Letters Patent
Appeal before the Division Bench against the order of
the Single Judge passed in its appellate jurisdiction,
the Letters Patent Appeal under Clause 15 of the
Letters Patent shall specifically stand excluded from
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an order in appeal under Section 91 of TM Act’ 1999
passed by a Single Bench of the High Court.
f) The fact that the legislature had consciously avoided a
forum for second appeal while creating an appellate
board for hearing appeals under the 1999 Act, and
subsequently, Tribunals Reforms Act, 2021, though
brought several amendments in the 1999 Act
including change of appellate forum, under Section 91
from the ‘Appellate Board’ to the High Court, but still
the second level of appeal before the High Court as
was available in the erstwhile TMM Act 1958, was not
provided. The legislative intent for exclusion of one
more level of appeal under the special enactment (TM
Act 1999) is a relevant factor to be taken into
consideration for avoiding inclusion of Letters Patent
Appeal under the general appellate provisions of the
Letters Patent.
136. We are, thus, in complete agreement with the law laid
down by the Division Bench of Calcutta High Court in
Glorious Investment (supra) that the clear legislative
intent in the special law cannot be allowed to be overridden
by a long drawn interpretative process and by reading the
same to be making room for Letters Patent Appeals. The
deletion of the second appellate provision from a statute
(TMM Act, 1958) is to be given due weightage in probing
the legislative intent with the exclusion of the second
appellate provision in the present statute (TM Act, 1999)
which was there in the predecessor statute, and the express
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exclusion by application of Section 100A CPC, it is held that
further appeal under Clause 15 of the Letters Patent as an
intra-court appeal shall not be maintainable against the
order of a Single Bench passed in appellate proceedings
under Section 91 of the 1999 Act.
137. For the above reasoning, we are also in full agreement with
the distinction made by the Calcutta High Court to the
Division Bench judgment of Delhi High Court in
Promoshirt SM SA (supra).
138. Lastly, with regard to another decision of the Delhi High
Court in Resilient Innovations Pvt. Ltd. (supra) relied
by the learned counsel, suffice it to say that the said
decision is distinguishable in the facts and circumstances of
the present case, inasmuch as, the same arises out of a
case under Section 57 of the 1999 Act, which contemplates
an application for rectification filed before the Registrar or
High Court. The proceedings under Section 57 of the
Trade Marks Act, 1999, are conducted by the High Court as
original proceedings and not as appellate proceedings. The
same would, therefore, be outside the purview of the
provisions of Section 100A of the Code and Clause 15 of the
Letters Patent, and hence, a Letters Patent Appeal, there
against the Single bench judgment or order would be
maintainable before the Division Bench.
139. With the above, the preliminary objections as to the
maintainability of the instant Letters Patent Appeal under
Clause 15 of the Letters Patent against the order of the
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NEUTRAL CITATION
C/LPA/619/2026 CAV JUDGMENT DATED: 23/07/2026
undefined
learned Single Judge of the High Court in an appeal under
Section 91 of the Trade Marks Act, 1999, are hereby
upheld.
140. With the above, the instant Letters Patent Appeals are
dismissed as not maintainable. It needs no clarification
that we have not entered into the merits of the claims of the
appellant, and all rights and contentions of the parties on
the merits of the order of the Registrar and the High Court
in any further challenge are left open.
141. Dismissed. No order as to costs.
Pending Civil Applications, if any, would not survive and
shall stand disposed of accordingly.
(SUNITA AGARWAL, CJ )
(D.N.RAY,J)
BIJOY B. PILLAI
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