JUDGMENT
1. Admitted Mr. Ajay Sahuni, learned counsel for respondent No. 3, who is a contesting respondent appears and waives service of notice of admission. So far as respondents Nos. 1 and 2, are concerned, the learned counsel for the appellant states that no relief is claimed in the present proceeding against respondents Nos. 1 and 2.
2. This appeal is filed against summary dismissal of Special Civil Application No. 836 of .1997. A petition was filed against interlocutory order passed by the Assistant Registrar of Trade Marks, respondent No. 1 herein on 8th October 1997. Notice was issued and the respondent No. 1 appeared. None appeared for respondents Nos. 2 and 3 even before the learned single Judge.
3. On May 5, 1998, the matter was called out and the learned counsel for the petitioner sought time. Time was granted and the matter was adjourned on the next day i.e. on 6th May 1998. On 6th May 1998, on behalf of the petitioner nobody was present. The learned single Judge heard the learned counsel for-the respondent and held that the petition was not maintainable and accordingly it was dismissed.
4. It is, this order, which is challenged in the present Letters Patent Appeal.
5. We have heard Mr. R.R. Shah, learned counsel for the appellant and Mr. Ajay Sahani for the contesting respondent. Mr. Shah stated that on 6th May, 1998 when the petition was called out for hearing, he was busy in other Court and, hence he could not remain present. Regarding the order passed by the learned single Judge, Mr. Shah submitted that the learned single Judge has committed an error of law in holding that the petition was not maintainable. He submitted that even if the order impugned in the petition was interlocutory in nature, it could not be said that no petition would lie against such order. At more than one place, the learned single Judge, submitted Mr. Shah, observed that he was not expressing any opinion oh merits of the matter as he was not of the view that the petition could not lie at that stage. According to Mr. Shah, in holding the petition not maintainable, the learned single Judge has committed a serious error of jurisdiction and the order deserves interference by this Court.
6. Mr. Ajay Sahani on the other hand supported the order passed by the learned single Judge. He submitted that though the learned single Judge at some places had observed that the petition was not maintainable, looking to the order as a whole and in its entirety, the learned single Judge was of the opinion that in the facts and circumstances of the case, it was not a fit case to exercise jurisdiction under Article 226 and/or 227 of the Constitution. He further submitted that it is clear from the reference made to two decisions of the Apex Court in A.M. Allison v. B.L. Sen, AIR 1958 SC 227 and Balvant Rai v. M.N. Nagrashnu, AIR 1960 SC 407.. Mr. Sahani submitted that the order impugned in the petition was not final. The proceedings were still to go on. Against final order, an appeal is provided. The learned single Judge has also observed that if the final order would be against the petitioner, it would be open lo him to challenge the said order on all grounds. According to the learned counsel, therefore, if one looks at the substance of the matter and the circumstances under which the order passed by the learned single Judge, it is clear that in exercise of extraordinary and/or supervisory powers, the Court did not think it fit to interfere with the interlocutory order passed by the Asst. Registrar of Trade Marks.
7. Having heard the learned counsel for the
panics, we are of the opinion that the appeal
deserves to be allowed. The learned single Judge
has held that the petition was not maintainable. It,
is, no doubt, true, as submitted by Mr. Sahani that
at various places observations have been made by
the learned single Judge considering the merits as
also the scheme of the Trade and Merchandise
Marks Act, 1958 and the Trade and Merchandise
Marks Rules, 1959 and in the light of the facts and
circumstances, the learned single Judge observed
that in such cases, ordinarily, a party should not
invoke Article 226 of the Constitution jot” India and
the Court may not interfere if such petitions are
filed. At the same time, however, it cannot be
gainsaid that the learned single Judge has held the
petition to be not maintainable. To that extent in
our opinion, the learned single Judge was not
right.
8. In our judgment, there is a clear distinction between non-tenability and non-entertainability of a petition by the Court in exercise of the powers under Article 226 and/or 227 of the Constitution of India. The former relates to maintainability and goes to the root of the jurisdiction of the Court and a party is prevented at the threshold stating that he cannot enter the doors of the Court. The latter relates to discretion of the Court to exercise extraordinary jurisdiction in favour of a party. When the respondent contends that the Court may not entertain the petition, he concedes to the jurisdiction of the Court to entertain a petition. The Court
is also satisfied that it has power to entertain the petition. A Court may, however, refuse to entertain a petition when it is of the view that though it has a power to entertain such petition and also to grant relief, on the facts and in the circumstances of the case, it is not inclined to grant such relief in favour of the petitioner.
9. In our opinion, in the instant case, it cannot be said that the petition was not maintainable. To that extent, therefore, the order passed by the learned single Judge suffers from legal infirmity and cannot be upheld.
10. Mr. Sahani, drew our attention that look
ing to various paragraphs, it is clear that even on
merits, the learned single Judge has found sub
stance in the contentions raised on behalf of
respondent No. 3. We express no opinion on that
question as according to us, when the petition is
maintainable, it has to be decided considering the
facts and circumstances and the merits, of the
matter. Only on that ground the appeal deserves to
be allowed.
11. In the result, the appeal is allowed, The
order passed by the learned single Judge is set
aside. The matter will now go back to the learned
single Judge and the learned single Judge will
decide the same in accordance with law on, its own
merits. It is open to the parties to put forward the
contentions available to them in accordance with
law. It is also to the parties to request the learned
single Judge to take up the matter for earty shear
ing. In the facts and circumstances of the case, the
parties to bear their own costs.