1. First respondent in T.M.A. No. 4 of 1996, on the file of this Court, is the appellant before use.

2. The material facts which led to the filing of this Trade Mark Second Appeal are as follows:-

On 17-8-1978, a partnership was constituted by (1) K.L.Parthasarathy, (2) K.L.Rajakrishnan, (3) K.L.Rajendran, (4) K.L.Sivakumar, (5) K.L.Nagalakshmi and (6) S.Nagarajulu and it was doing textile business under the name and style Partha Textiles, Kottayam. Thereafter, an application was made before the second respondent for registration of the trade mark on 30-11-1978. A Certificate of Registration of Trade Mark was issued on 28-2-83 as follows:-

"Certificate that the Trade Mark of which a representation is annexed hereto, has been registered in Part A of the register in the name(s) of K.L.Parthasarathy, K.L. Veeriah Alias Mohanraj, K.L.Rajakrishnan, K.L.Rajendran, K.L.Nagalakshmi, K.L.Sivakumar and K.L. Indumathi, trading as Parthas Textiles and also trading as Parthas, K.K.Road, Post Box No.119, Kottayam in class 24 under No. 343228 as of the date 30th November 1978 in respect of Textile piece goods for sale in the State of Tamil Nadu and Kerala." *

It may be noted that K.L. Veeriah Alias Mohanraj was not a partner in the partnership deed dated 17-8-1978. Subsequently, the partnership deed dated 17-8-1978 was reconstituted on 1-4-1979 with the following partners (1) M. Sreenivasa Reddiar, (2) K.L. Parthasarathy by Power of attorney holder K.L. Veeriah Mohanraj, (3) K.L. Veeriah Mohanraj, (4) K.L.Rajakrishnan, (5) K.L.Rajendran, (6) K.L.Sivakumar, (7) K.L. Indumathi, (8) K.L.Nagalakshmi, (9) S. Varadarajulu, (10) Viswanathan, (11) Rajakrishnan, and (12) J.Ramachandru Ammal. Even though the firm was reconstituted on 1-4-1979, the same was not intimated to the authorities under the Trade Marks Act, and the partnership deed also did not make mention of the application for registering the trade mark. It is also worthwhile to note that in the reconstituted firm. S. Nagarajulu expressed his desire to retire and he retired on 1-4-1979. Even though the application was made on 30-11-1978 to have the mark registered, the certificate was actually issued only on 28-2-1983. By that time, the firm was already reconstituted, and there were 12 partners on that date. After the partnership deed dated 1-4-1979, the firm was again reconstituted on 1-4-1985, 1-4-1986 and 1-4-1988. By these deeds, various changes were made in the constitution of the firm. But there was no change in the trade mark registration and the same continued as before. On 1-4-1988, two sister of the appellant, namely, K.L. Indumathi and K.L. Nagalakshmi expressed their desire to retire from the firm, and the deed dated 1-4-1988 itself was executed after their retirement. In the reconstituted deed of 1-4-1988, it is further seen that the appellant who was originally a partner as per deed dated 1-4-1979, had retired and thereafter he was reinducted as per the deed dated 1-4-1988. On 30-10-1990, the appellant, his mother and brothers gave notice of retirement from the firm with effect from 31-1-1991 and sought closure of accounts as on 30-1-1991. After receipt of the notice, the firm was again reconstituted on 1-2-1991 between the surviving partners, which was countersigned by the retiring partners. In that deed dated 1-2-1991, a provision we made for the continued use of the business name Parthas Textiles. Clause 1 of that Deed reads as follows :-

"The name and style of the partnership shall continue to be PARTHAS TEXTILES with its principal place of business at Kottayam. New places of business may be opened at places where there are no existing business under the name Parthas/Parthas Textiles. It is specifically agreed to that the retiring partners can continue to use the name of Parthas/Parthas Textiles wherever there are existing businesses under the name Parthas/Parthas Textiles and also start any business under the name Parthas/Parthas Textiles wherever there are no existing businesses under the name Parthas/Parthas Textiles" *

.

Thereafter, the firm was again reconstituted on 1-4-1991. That was a deed executed between the surviving partners to which the appellant and other retired partners are not partners. The surviving partners again reconstituted the firm on 1-4-1992. In the partnership deed dated 1-4-1991 and 1-4-1992, no provision was made as to the use of the trade mark. While so, on 21-5-1993, an application was made by the surviving partners, i.e., (1) M. Srinivasa Reddiar, (2) S. Varadarajulu, (3) S. Viswanathan, (4) S. Rajakrishanan, (5) S. Nagarajulu and (6) S. Arjunan, to enter their names in the Register of Trade marks as proprietors of the trade mark No.343228 in class 25 as from 1st April, 1992. In their application, they further said that they are entitled to the trade mark by virtue of the partnership deed dated 1-4-1992. A copy of the deed was also enclosed for necessary action. It was further stated in that application that the assignment of the trade mark was not made otherwise than in connection with the goodwill of the business in which the mark is used. On receipt of the application, the second respondent wanted further details for taking necessary action. In that, it directed the production of retirement deed of (1) K.L. Rajakrishnan (appellant), (2) K.L. Nagalakshmi, (3) K.L. Indumathi, (4) K.L. Parthasarathi, (5) K.L. Rajendran, (6) K.L. Sivkumar, (7) K.L. Veeriah Mohanraj and (8) Ramachandru Ammal. It also directed the production of an affidavit from the retired partners stating that they have received their shares and interest in the partnership firm and have no objection for allowing the request on Form No. 24 dated 22-3-1993 and 14-6-1993. The surviving partners did not produce either the retirement deed or the affidavit called for by the second respondent, nor did they produce the No Objection Certificate from the retiring partners except that of K.L. Nagalakshmi and K.L. Indumathi, who had already retired from the firm from 1-4-1988. On production of those documents, the second respondent passed an Order whereby the names of the surviving partners were entered in the Register and the names of the registered proprietors were deleted. The said Order was passed without notice to the registered proprietors and they were not aware of the change.

3. On 20-4-1994, a publication was made in Malayalam Daily Newspaper "Deepika" under the caption "Trade Mark Copyright warning notice" in respect of trade mark and trade name Parthas covered by Registration No. 343228. On coming to know about the Order of the second respondent from the above said publication, a notice was issued to the second respondent, informing him that the action of the second respondent was unauthorized. Notice was sent to the attorneys by the Managing Partner of Parthas Textiles, Allepey informing them about the publication as well as that the change in the trade mark was unauthorised and they will continue to use the trade mark as registered proprietors. It was also informed that the Order, if any, of the Trade Mark Authority was not binding on him. Simultaneously, on 9-6-1994, Solicitors, on behalf of the appellant, informed the third respondent about the error committed by it in passing the order without notice to the registered proprietors, and in that letter, the Solicitors requested the third respondent to initiate suo motu action to correct the entries and to enter the names of the registered proprietors in the Register. In that request, the third respondent was also informed that no notice was issued to the registered proprietors and the action is invalid. It was further stated in that letter to look into the serious error which had crept in and to rectify the same in your powers. On receipt of the said request, the second respondent wrote to the Attorneys of surviving partners why proceedings should not be initiated under Section 56 (4) of the Trade and Merchandise Marks Act on the ground that an error has crept in the entries and the same was made against the provisions of the. For the said letter, a reply was sent to the second respondent informing it that the appellant and other partners had already retired on receipt of their dues and the accounts have been fully and finally settled. In that letter, they further said that the retired partners were allowed to use the name Parthas Textiles as a goodwill gesture and they also informed that the action under Section 56 (4) of the said Act cannot be had. The second respondent, on receipt of the reply, informed the solicitors of the retiring partners to comment on the reply, which was also answered by it in the nature of an affidavit. In that reply affidavit, it was stated that even though the authorities wanted to file an affidavit from the retired partners, the same was not done and only the affidavits of Nagalakshmi and Indumathi were filed, and the consent for changing the entry was also not filed. It was also further reiterated in that reply affidavit that since the registered proprietors were not informed about the proceedings, the entire procedure adopted by the third respondent was illegal and against the principles of natural justice. It was further stated that the action of the third respondent was ineffective, null and void, and non-est. In that letter, it was further stated that the document dated 1-2-1991 has not come into effect and he still continues as a partner and their accounts have not been settled. It was further averred that while changing the entries, the Authorities have acted against law. The Authorities were informed that before changing the entries, they have not considered whether there was an assignment or transmission. The Authorities were also reminded that under the, if it was a case of assignment, the same should be in writing, and it was also not a case of transmission, and the deed dated 1-2-1991 does not contain either expressly or by implication, assigning of the aforesaid trade mark in favour of the continuing partners. It was further stated that even if it was a case of assignment, the same was without the goodwill, and no application was made within the time prescribed by the Rules and, therefore, the applicants cannot be regarded as proprietors of the mark. It was further stated that no consideration passed from the purported continued partners to the purported retired partners for the alleged assignment of the trade mark. They also requested that the entries which originally stood have to be entered in the Registers without fail.

4. On receipt of a copy of the reply affidavit, a further submission was made on behalf of the surviving partners that the appellant and other have already retired and they have lost all their interest in the firm and the property belonged to the continuing firm. Authorities were also informed that once the partners have been relieved from the business voluntarily and the dues have been settled, they lose all their rights in the firm. They were also informed that all the dues including that of the appellant were paid in full.

5. The case was thereafter posted from time to time. The hearing of the case was originally posted to 20-3-1995 and the same was being adjourned from time to time, and finally it was adjourned to 21-11-1995 at 2-30 p.m. On that date, a request was made on behalf of the surviving partners that the case may be taken up at 4-30 p.m. It is said that the Solicitors on behalf of the retiring partners made their submissions and the argument went on upto 6-15 p.m., on that date. When the matter was proposed to be adjourned to next day, the Solicitors on behalf of the surviving partners requested that an adjournment of the case to next day will be inconvenient for them, and they wanted the case to be posted after a few days. It is also alleged that at that time they agreed to pay the air-fare to the Solicitors of the retiring partners. It is also said that there was no necessity for the hearing of the matter further, and they submitted that they would file written submissions. Accordingly a schedule was drawn whereby the Solicitors on behalf of the surviving partners were permitted to file their written submission on 28-11-1994 with a copy to the counsel on behalf of the retiring partners for which a reply had to be submitted before 30-11-1995. Till 29-11-1995, no written submission was made and when the case was about to be taken on 30-11-1995, they wanted an adjournment of the case in view of the proposed Tamil Nadu bandh. Since there was no necessity for adjourning the matter in view of the agreement to file written submissions, the case was taken up by the second respondent, who passed an Order on 4-12-1995.

6. In his Order, second respondent said that the Order dated 13-8-1993 wherein the names of the appellant and others were deleted and in their place, the names of the existing partners were substituted, was without notice, and that is in violation of the provisions of the Trade and Merchandises Marks Act and Rules. It was further held that admittedly there is dispute between the parties affecting their rights, and it is in the interest of justice, that the earlier Order should be rectified. Second respondent also took note of the retirement of Nagalakshmi and Indumathi, and while rectification was ordered, he said that those changes also will be effected if a formal application is made. He said that since there is dispute between the parties with regard to the proprietory right of the trade mark, all further transactions in respect of the same will be entered into after getting orders from the competent Court or by producing an agreement, agreed to by all the parties, and by filing a joint request in that regard in Form T.M. 23.

7. Against the Order of the second respondent, first respondent herein filed Appeal before this Court as T.M.A. No. 4 of 1996. In that appeal, he contended that the second respondent acted without jurisdiction in initiating suo motu proceedings under Section 56(4) of the Act, and taking into consideration the facts and circumstances, he ought to have initiated only proceedings under Section 57 of that Act. It was also contended before the learned Judge that before the 2nd respondent, voluminous documents were filed, and none of these documents were considered. It was also contended that the appellant herein and other persons were already retired and have a right over the trade mark once their accounts have been settled. It was also contended that the second respondent acted in violation of the principles of natural justice in not adjourning the matter on 30-11-1995 due to Tamil Nadu Bandh.

8. When the matter came before the learned Judge, since caveat had been filed by the appellant herein, at the admission stage itself, the entire matter was heard. Learned Judge, by the impugned judgment, held thus :-

"To avoid any complication, I am of the opinion that since the trade mark has been registered in the name of the then partners of the partnership firm and now that the first respondent had retired from the partnership firm, he cannot claim any share or right in the appellants firm. However, the first respondent is legally entitled to use the trade name Parthas Textiles /Parthas for his separate business as per the deed of retirement.

Hence the order of the second respondent is modified to the effect that the first respondent is entitled to use the trade name Parthas /Parthas Textiles but should not claim any share in the property of the partnership firm, consisting of the appellants herein as partners. The appeal is ordered accordingly. No costs."

Earlier, the learned Judge had held thus :-

". . . . When there is no dispute with regard to the right of the first respondent to use the trade name, then the first respondent can be permitted to use the trade name, as claimed by him. He cannot be a partner in the appellant firm." *

9. Aggrieved by the judgment of the learned Judge, the first respondent therein has filed this Trade Mark Second Appeal.

10. The following submissions were made by learned counsel for the appellants :-

Learned Judge has not considered the scope of the Order of the second respondent when he ordered rectification of the Register which was made on the request of the first respondent herein on T.M. 24 dated 22-3-1993. The rectification was only to restore the status quo that existed prior to the impugned Order dated 13-8-1993. The appellant is admittedly a registered proprietor as defined under Trade and Merchandise Marks Act, and before removing his name from the Register, he should have been given notice. When the second respondent has passed an Order on 13-8-1993, it acted without jurisdiction and that defect was cured by order dated 4-12-1995. It was further contended that when the fact of pendency of suits between the parties was brought to the notice of the respondents, second respondent was justified in directing that any further order in regard to the trade mark right will be subject to the result of the civil suits. Learned counsel also brought to the notice of this Court Section 44 of theby which, according to him, there is a statutory obligation on the part of the second respondent to wait for the decision of a competent Civil Court. Learned counsel also submitted that the Order dated 13-8-1993 was made violating the provisions of the Trade and Merchandise Marks Act and Rules, and even the first respondent herein has not produced any document which was directed to be produced by the Authorities therein. It was also submitted that the approach made by the learned Judge that the appellant was claiming a share in the profits of the firm, was not the case urged by either party. It is also contended that the documents produced before the learned Judge were never adverted to by the first respondent, nor filed before the second respondent at any time. It is further contended that the deed dated 1-2-1991 execution of which is admitted, was really not given effect to by settling the accounts as contemplated under the deed. It is further submitted, that the appellant and others who are registered proprietors of the trade marks have exclusive statutory right to use the same and they have not been divested from their statutory right. Merely because both parties are allowed to use the trade mark, when the ownership is in question, the learned Judge, deviated from that issue and has decided the case as if a concession is given to the appellant by the first respondent. This, according to the learned counsel, has seriously affected his rights.

11. As against the said contention, learned counsel for the first respondent submitted that as per the document dated 1-2-1991, the appellant and others have retired from the firm and once they have retired, they are not entitled to any portion of the goodwill. According to the learned counsel, the trademark which is part of the goodwill, will go alongwith the firm which is a continuing one, for, according to him, death or retirement of a partner will not dissolve the firm. It is further said that subsequent to 1-2-1991, accounts have been settled, and on 9-12-1993 the appellant and other retired partners have received their share of the profits in full and final settlement of their dues from the firms and thereafter they cannot have any claim over the trademark. It is further said that the original registration of the trade mark was in the name of the existing partners and, therefore, that is for the benefit of the partnership and is an asset of the firm, and not of the individual partners. It is also contended that the order of the second respondent on 13-8-1993 is only a consequence of the retirement for which no notice is required and the second respondent acted illegally and without jurisdiction when he issued notice under Section 56(4) of the. According to the first respondent, a representation was initiated by the appellants counsel before the third respondent and, therefore, the second respondent can initiate action only under Section 57 of the said Act. When an action is initiated by the aggrieved party, a suo motu action by the second respondent is without jurisdiction. It was further submitted that the various documents filed before the second respondent were not considered by him properly and the direction that the Authorities should wait for an adjudication by Civil Court is without application of mind. Learned counsel also wanted this Court to consider the scope of the Civil suit now pending before the Civil Court, Kottayam and the interim order passed therein. He also said that the Order dated 4-12-1995 was passed by the second respondent violating all the principles of natural justice. On 30-1-1995, the respondents counsel requested for time and even without waiting for a day, at the dictate of the appellants counsel, second respondent has passed the Order and that by itself is sufficient to set aside the Order of the second respondent. He also said that since the provisions of the Civil Procedure Code apply in regard to appeals under the Trade Marks Act, he is entitled to invoke the provisions of Order 41 Rule 33, C.P.C. even without filing any cross-objection or cross-appeal, and the entire matter which is agitated before the second respondent can be considered by this Court.

12. I will consider these submissions in seriatim.

13. Let us first consider the scope of the Order passed by the second respondent on 13-8-1993. For, that is the reason for the dispute between the parties. It is not disputed that on 30-11-1978, certificate of registration was issued in the names of (1) K.L. Parthasarthy, (2) K.L. Veeriah/Mohanraj, (3) K.L. Rajakrishnan, (4) K.L. Rajendran, (5) K.L. Nagalakshmi, (6) K.L. Sivakumar and (7) K.L. Indumathi, trading as Parthas Textiles and also trading as Parthas, K.K. Road, Post Box No. 119, Kottayam. On that date, the partnership known as Parthas Textiles consisted of the following partners : (1) K.L. Parthasarthy, (2) K.L. Rajakrishnan, (3) K.L. Rajendran, (4) K.L. Sivakumar, (5) K.L. Nagalakshmi and (6) S. Nagarajulu. It is further seen that K.L. Indumathi, who was then a minor, was admitted to the benefits of the partnership. But in the Certificate of Registration we do not find the names of K.L. Veeriah Alias Mohanraj or Nagarajulu. That partnership is dated 17-8-1978. It was subsequent to 17-8-1978, that an application for registration was made. A reading of the Order of the second respondent shows that the registration was in the name of individual members who were then trading as Parthas Textiles or Parthas.

14. It is also the case put forward by learned counsel for the appellant that even though after 17-8-1978 the partnership was reconstituted a number of times, the fact of reconstitution was not intimated to the Trade Mark authorities and the names have not been corrected by invoking the provisions of Section 57 of the. He also brought to our notice that even after 1-2-1991, from the date on which the appellant and others are said to have retired, till an application was filed by the surviving partners, the original certificate of Registration continued and even the renewals were applied for only by the then partners. This, according to him, will show that the benefit of the Registration will go only to the individual partners and not to the firm, and the trademark and the property belonging to the individual partners were not brought into the hotchpot of the assets of the firm. It is also contended that since they have not brought the said asset as part of the asset of the firm, without assignment or transmission the surviving partners are not entitled to operate the names of the registered proprietors and in their place the first respondent and others cannot be substituted as subsequent proprietors. A registered trademark, even if it is not used, is obviously a species of property as the statute refers to the person registered as a registered proprietor of the mark which it permits him to assign. According to the learned counsel, a registered proprietor has exclusive right to use the trade mark in relation to the goods in respect of which the trade mark is registered, and he is entitled to a relief in case his rights are infringed. It is a kind of incorporal property. It could be assigned or transmitted to others under certain conditions. According to him, when the appellant is admittedly a registered proprietor, certain rights follow the same, and, by order dated 13-8-1993, his right over the property has been taken away without hearing him. It was further submitted that while removing the name of a registered proprietor from the register, the second respondent acts as a quasi-judicial authority and, therefore, the principle of natural justice has to be applied. Even in case he is acting only as an administrative body, the principle of natural justice has to be applied, and violation of the same amounts of violation of the provisions of Trade and Merchandise Act and Rules framed thereunder. According to us, these contentions deserve to be accepted.

15. In 1969 (2) SCR 216 [LQ/SC/1968/294] , 1969 AIR(SC) 401, 1969 (75) CrLJ 659 ( of India v. Rajendra Kumar), the question that came for consideration was, regarding the disposal of a property under Section 517 of the Code of Criminal Procedure. The affected person, i.e., the Bank, was not given an opportunity before the Order was passed, and the law also did not provide for issuing a notice to the affected person. The question was, whether the Bank was entitled to be heard, even though the Statute did not provide for any notice. While considering the same, their Lordships, in paragraph 4 of the judgment (at page 403) held thus :-

"In support of this appeal, it was contended in the first place that the High Court had reversed the order of the Session Judge directing the return of the currency notes without giving a notice to the appellant and without giving an opportunity to it for being heard. The argument was stressed that there was a violation of the principle of natural justice and the order of the High Court dated 5th April 1963 was illegal. It was, however, contended on behalf of the respondents that there was no provision in Section 520 of the Code of Criminal Procedure for giving notice to the affected parties and the order of the High Court cannot be challenged on the ground that no hearing was given to the appellant. In our opinion, there is no warrant or justification for the argument advanced on behalf of the respondents. It is true that the statute does not expressly require a notice to be issued, or a hearing to be given to the parties adversely affected. But though the statute is silent and does not expressly require issue of any notice there is in the eye of law a necessary implication that the parties adversely affected should be heard before the Court makes an order for return of the seized property. The principle is clearly stated in the leading case of Cooper v. Wondsworth Board of Works, 1863 (14) CB 180. In that case Section 76 of the Metropolis Local Amendment Act, 1955 authorised the District Board to demolish the building if it had been constructed by the owner without giving notice to the Board of his intention to build. The statute laid down no procedure for the exercise of the power of demolition, and, therefore, the Board demolished the house in exercise of the above power without issuing a notice to the owner of the house. It was held by the Court of Common Pleas that the Board was liable in damages for not having given notice of their order before they proceeded to execute it. Erle C.J. held that the power was subject to a qualification repeatedly recognised that no man is to be deprived of his property without his having an opportunity of being heard and that this had been applied to" *

many exercise of power which in common understanding would not be at all a more judicial proceeding than would be act of the district board in ordering a house to be pulled down". Wills, J. said that the rule was" of universal application and founded upon the plainest principles of justice

"and Byles, J. said that although there are no positive words in a statute requiring that the party shall be heard, yet the justice of the common law will supply the omission of the legislature."...."(Emphasis supplied)

The said decision was followed by the Delhi High Court in the decision reported in 1969 AIR(Del) 324 Radha Kishan Khandelwal v. Assistant Registrar of Trade Marks and Others). That was a case under the Trade and Merchandise Marks Act wherein the name of the registered proprietor was directed to be removed without notice to him. A learned Judge of that High Court held that the Registrar discharging his duties under the Trade and Merchandise Marks Act is a quasi-judicial authority, and even if he discharges only an administrative function, the principle of natural justice will have to be complied with. In the said decision, the learned Judge held thus :-" *

I am firmly of the view that a proceeding for making an alteration of this nature in the Register of trade marks can by no means be regarded as a purely administrative proceeding and that the Registrar while discharging his duties in that behalf performed quasi judicial functions whereby he decided, prima facie at least, the rights of the parties. It is, therefore, of the essence of the procedure required for performing that duty that the party whose rights are going to be adversely affected by the decision taken by the Registrar should have a notice of those proceedings and the decision should also be supported by reasons. The necessity for reasons in support of the decision arises also from the fact that the Registrars decision is open to an appeal before the High Court.

Assuming I am wrong there and it is held that the function performed by the Registrar is of an administrative character the necessity for a notice and some kind of inquiry will still be there and since the order made by the Registrar is open to appeal before the High Court, the party aggrieved by his decision will obviously be entitled to a copy of the order being supplied to him on payment of usual charges.

It is true that the rules do not expressly require a notice to be issued or a hearing to be given to the party adversely affected by the order when an application on Form T.M. 24 is made before the Registrar, but there is in the eye of law a necessary implication that the party adversely affected should be heard before an order for the removal of his name can be made against him. . . .

"16. In (1981), 1 Supreme Court Cases 664 [LQ/SC/1969/65] (Swadeshi Cotton Mills v. Union of India), their Lordships of the Supreme Court had occasion to consider the scope of natural justice and held thus :-" *

A quasi-judicial or administrative decision rendered in violation of the audi alteram partem rule, wherever it can be read as an implied requirement of the law, is null and void. In the facts and circumstances of the instant case, there has been a non-compliance with such implied requirement of the audi alteram partem rule of natural justice at the pre-decisional stage. The impugned Order, therefore, could be struck down as invalid on that score alone.

"17. In (1988) 2 Supreme Court Cases 602 [LQ/SC/1988/263] (A.R. Antulay v. R.S. Nayak), in paragraph 55 (at page 660), their Lordships have said thus :-" *

. . . No prejudice need be proved for enforcing the fundamental rights. Violation of a fundamental right itself renders the impugned action void. So also the violation of the principles of natural justice renders the act a nullity.

"18. In (1993) 3 Supreme Court Cases 259 [LQ/SC/1993/463] (B.K. Yadav v. J.M.A. Industries Ltd.) also, their Lordships considered the scope of natural justice wherein it was held thus :-" *

Application of the principles of natural justice that no man should be condemned unheard intends to prevent the authority from acting arbitrarily affecting the rights of the concerned person. No decision must be taken which will affect the right of any person without his/her first being informed to the case and giving him/her an opportunity of putting forward his/her case. An order involving civil consequences must be made consistently with the rules of natural justice. Civil consequences covers infraction of not merely property or personal right but of civil liberties, material deprivations and non-pecuniary damages. In its comprehensive connotation everthing that affects a citizen in his civil life inflicts civil consequences. Civil rights have been defined to be such as belonging to every citizen of the State or country.... they include.... rights capable of being enforced or redressed in a civil action... Even an administrative order which involves civil consequences must be made consistently with the rules of natural justice.

The duty to give reasonable opportunity to be heard will be implied from the nature of the function to be performed by the authority which has the power to take punitive or damaging action. Even executive authorities which take administrative action involving any deprivation of or restriction on inherent fundamental rights of citizens, must take care to see that justice is not only done but manifestly appears to be done. They have a duty to proceed in a way which is free from even the appearance of arbitrariness, unreasonableness or unfairness. They have to act in a manner, which is patently impartial and meets the requirements of natural justice. It is not so much to act judicially but is to act fairly. The rule of procedure laid down by law comes as much within the purview of Article 14 of the Constitution as any rule of substantive law. The substantive and procedural laws and action taken under them will have to pass the test under Article 14. The test of reason and justice cannot be abstract. They cannot be divorced from the needs of the nation. The tests have to be pragmatic otherwise they would cease to be reasonable. The procedure prescribed must be just, fair and reasonable even though there is no specific provision in a statute or rules made thereunder for showing cause against action proposed to be taken against an individual, which affects the right of the individual.

"(Emphasis supplied)

19. In Administrative Law by Sir William Wade - Seventh Edition (1995), at pages 500 and 501, the learned Author has said thus :-" *

The numerous new administrative authorities, both local and central, which came into being in the nineteenth and twentieth centuries opened up a large new territory for the principles of natural justice. The character of the authority was not what mattered; what mattered was the character of the power exercised. If it adversely affected legal rights or interests, it must be exercised fairly.

One case of 1863 is especially noteworthy, both because it stated the law in short judgments of great clarity, and also because it has played an important part in the recent revival of the right to be heard : Cooper v. Wandsworth Board of Works. Under an Act of 1855 it was provided that no one might put up a building in London without giving seven days notice to the local board of works; and that if any one did so, the board might have the building demolished. A builder nevertheless began to erect a house in Wandsworth without having given due notice and when his building had reached the second storey the board of works sent men late in the evening who demolished it. The board did exactly what the said they might do in exactly the circumstances in which the said they might do it. And their action was, of course, purely administrative. Nevertheless, the builder brought a successful action for damages for the injury to his building, merely on the ground that the board had no power to act without first asking him what he had to say for himself. Erle C.J. said :

I think the board ought to have given notice to the plaintiff and to have allowed him to be heard. The default in sending notice to the board of the intention to build, is a default which may be explained. There may be a great many excuses for the apparent default. The party may have intended to conform to the law. He may have actually conformed...... though by accident his notice may have mis-carried..... I cannot conceive any harm that could happen to the district board from hearing the party before they subjected him to a loss so serious as the demolition of his house; but I can conceive a great many advantages which might arise in the way of public order, in the way of doing substantial justice, and in the way of fulfilling the purposes of the statute, by the restriction which we put upon them, that they should hear the party before they inflict upon him such a heavy loss.

"Two of the other judgments in this case are important. Willes J. said :" *

I am of the same opinion. I apprehend that a tribunal which is by law invested with power to affect the property of one of Her Majestys subjects, is bound to give such subject an opportunity of being heard before it proceeds; and that rule is of universal application, and founded on the plainest principles of justice. Now, is the board in the present case such a tribunal I apprehend it clearly is."

And Byles, J. also said :

" It seems to me that the board are wrong whether they acted judicially or ministerially. I conceive they acted judicially, because they had to determine the offence, and they had to apportion the punishment as well as the remedy. That being so, a long course of decisions beginning with Dr. Bentleys case, and ending with some very recent cases, establish that, although there are no positive words in a statute, requiring that the party shall be heard, yet the justice of the common law will supply the omission of the legislature.

"These last two quotations bring out clearly two especially important aspects: the universality of the principle, which makes it applicable to almost the whole range of administrative powers; and the presumption that it will always apply, however silent about it the statute may be." *

At pages 512 and 513, the learned Author has further said thus :-

"Lord Reid emphasised the universality of the right to a fair hearing. Whether the cases concerned property or tenure of an office or membership of an institution, they were all governed by one principle. He also said :" *

We do not have a developed system of administrative law - perhaps because until fairly recently we did not need it. ... But I see nothing in that to justify our thinking that our old methods are any less applicable today than ever they were to the older types of case. And if there are any dicta in modern authorities which point in that direction then, in my judgment, they should not be followed.

"This led to the conclusion that Nakkuda Ali v. Jayaratne, holding that a licensing authority did not need to act judicially in cancelling a license, was based on a serious misapprehension of the older authorities and therefore cannot be regarded as authoritative. In a later case Lord Denning MR pithily summed up the situation :" *

At one time it was said that the principles (sc. of natural justice) only apply to judicial proceedings and not to administrative proceedings. That heresy was scotched in Ridge v. Baldwin. At another time it was said that the principles do not apply to the grant or revocation of licences. That too is wrong. R. v. Metropolitan Police Commissioner ex. p. Parker and Nakkuda Ali v. Jayaratne are no longer authority for any such proposition."

Even more concisely, the Privy Council said :

"... the Minister was a person having legal authority to determine a question affecting the rights of individuals. This being so it is a necessary implication that he is required to observe the principles of natural justice when exercising that authority; and if he fails to do so, his purported decision is a nullity.

"And Lord Diplock said in the House of Lords that the right of a man to be given a fair opportunity of hearing what is alleged against him and of presenting his own case is so fundamental to any civilised legal system that it is to be presumed that Parliament intended that a failure to observe it should render null and void any decision reached in breach of this requirement." *

20. In de Smiths Judicial Review of Administrative Action - Fourth Edition (1980), at page 169, the learned Author says thus:-

"With the extension of the franchise and the decline of the doctrine of laissez-faire in the latter half of the nineteenth century came a vast increase in the regulatory functions of public authorities, especially in the fields of housing and public health. Where a statute authorising interference with property or civil rights was silent on the question of notice and hearing, the courts, drawing upon the authority of the older cases, invoked "the justice of the common law" to "supply the omission of the legislature."

At page 196 of the same book, the learned Author has further said thus:-" *

Natural justice generally requires that persons liable to be directly affected by proposed administrative acts, decisions or proceedings be given adequate notice of what is proposed, so that they may be in a position :

(a) to make representation on their own behalf; or

(b) to appear at a hearing or inquiry (if one is to be held); and

(c) effectively to prepare their own case and to answer the case (if any) they have to meet.

In disciplinary and analogous situations, there will often be a further reason why adequate prior notice should be given to the party to be charged --- to give him the opportunity of offering to resign or (for example) surrender his licence rather than face the prospect of formal condemnation.

In a large majority of the reported cases where breach of the audi alteram partem rule has been alleged, no notice whatsoever of the action taken or proposed to be taken was given to the person claiming to be aggrieved, and failure to give him prior notice was tantamount to a denial of an opportunity to be heard on that matter. When one asks who is impliedly entitled to prior notice, one is asking, in substance, what kinds of interest are entitled to the protection of the rules of natural justice; and it is not easy to answer such a question except at a high level of generally. For instance, in some but not all situations notice of a licensing application should be given to competitors whose economic interests are liable to be jeopardised if the application is granted.

"21. In Administrative Law by P.P. Craig - 2nd Edition (1993), it is stated thus at pages 337 and 338 :-" *

The problem of whether decisions are void or voidable has been particularly prevalent in the context of natural justice.

(1) Hearings: The view taken by the majority in Ridge v. Baldwin, that failure to comply with the rules as to hearings makes a decision void, accords with precedent and principle. The rationale for regarding such a failure as leading to a decision which is void is expressed by Lord Selborne L.C.,

"There would be no decision within the meaning of the statute if there were anything of that sort done contrary to the essence of justice." *

There have been may other cases where the courts have stated that a failure to hear renders the decision void or a nullity. Thus, the action of a committee which purported to expel a person from a club without a hearing was held to be null and void, as was the refusal of a pension to a policeman who had resigned from the force. Cases of collateral attack are also instructive. A number of these cases explicitly state that a failure to hear renders the decision void. Even where this is not so stated it is implicit in the ability to attack the decision collaterally; if a failure to hear constituted only an error within jurisdiction the decision could not be attacked collaterally.

"22. In Administrative Law by C.K. Thakker - 1992 Edition, at page 163, after following the various judgments of the Supreme Court as well as English Courts, the learned Author has said thus:-" *

Generally, no provision is found in any statute for the observance of principles of natural justice by the adjudicating authorities. The question then arises as to whether the adjudicating authority is bound to follow the principles of natural justice. The law is well settled after the pronouncement of Byles, J. in Cooper v. Wandsworth Board of Works, wherein his Lordship observed :

"A long course of decisions, beginning with Dr. Bentleys case and ending with some very recent cases, establish that although there are no positive words in the statute requiring that the party shall be heard, yet the justice of the common law will supply the omission of the Legislature." *

(emphasis supplied in the original text)

de Smith also says that where a statute authorising interference with property or civil rights was silent on the question of notice and hearing, the courts would apply the rule as it is of universal application and founded on the plainest principles of natural justice. Wade states that the rules of natural justice operate as implied mandatory requirements, non-observance of which invalidates the exercise of the power. He adds, the presumption is, it (natural justice) will always apply, however silent about it the statute may be."

Netheim rightly states :" Formerly the presumption had been that there was no obligation to give a hearing unless the statute itself indicated; now the presumption is that there is such an obligation unless the statute clearly excludes it, notwithstanding the vesting of a power, in subjective terms, in a Minister responsible to Parliament.

"(emphasis supplied)

The above principle is accepted in India also. It is well settled that where exercise of a power results in civil consequences to citizens, unless the statute specifically rules out, the principles of natural justice would apply. It is not permissible to interpret any statutory instrument so as to exclude natural justice unless the language of the instrument leaves no option to the Court. Procedural fairness embodying natural justice is to be implied whenever action is taken affecting the rights of parties.

In the historic case of A.K. Kraipak v. Union of India, speaking for the Supreme Court, Hegde, J. propounded :" *

The aim of the rules of natural justice is to secure justice or to put it negatively to prevent mis-carriage of justice. These rules can operate only in areas not covered by any law validly made. In other words they do not supplant the law of the land but supplement it.

"(emphasis supplied as in the original text)

In Maneka Gandhi v. Union of India, Beg, C.J. observed :" *

It is well established that even where there is not specific provision in a statute or rules made thereunder for showing cause against action proposed to be taken against an individual which affects the rights of that individual, the duty to give reasonable opportunity to be heard will be implied from the nature of the function to be performed by the authority which has the power to take punitive or damaging action.

"An interesting question arose in the well-known case of Olga Tellis v. Bombay Municipal Corpn. The Supreme Court was called upon to decide the constitutional validity of Section 314 of the Bombay Municipal Corporation Act, 1888, which empowered the Commissioner to get illegal construction and structures removed or demolished without notice. (emphasis supplied as in text) It was contended that the provisions of the Section were arbitrary and unreasonable inasmuch as it did not provide for giving of notice and hearing before removal of encroachment but on the contrary, it expressly provided removal of so-called illegal encroachment without notice." *

Holding the provision intra vires and reading the principles of natural justice therein, the Court observed :

"Any action taken by a public authority which is invested with statutory powers has, therefore, to be tested by the application of two standards. The action must be within the scope of the authority conferred by law and secondly, it must be reasonable. If any action within the scope of the authority conferred by law, is found to be unreasonable, it must mean that the procedure established by law under which that action is taken is itself unreasonable." *

Considering the ambit and scope of Section 314, the Court observed :

"Considered in its proper perspective, Section 314 is in the nature of an enabling provision and not of a compulsive character. It enables the Commissioner, in appropriate cases, to dispense with previous notice to persons who are likely to be affected by the proposed action. It does not require, and cannot be read to mean, that in total disregard of the relevant circumstances pertaining to a given situation, the Commissioner must cause the removal of an encroachment without issuing previous notice. The primary rule of construction is that the language of the law must receive its plain and natural meaning. What Section 314 provides is that the Commissioner may, without notice, cause an encroachment to be removed. It does not command that the Commissioner shall, without notice, cause an encroachment to be removed. Putting it differently, Section 314 confers on the Commissioner the discretion to cause an encroachment to be removed with or without notice. The discretion has to be exercised in a reasonable manner so as to comply with the constitutional mandate that the procedure accompanying the performance of a public act must be fair and reasonable. We must lean in favour of this interpretation because it helps sustain the validity of the law. Reading Section 314 as containing a command not to issue notice before the removal of an encroachment will make the law invalid."(Emphasis supplied as in the original text).."

23. In Natural Justice by H.H. Marshall - 1950 Edition - at page 134, the learned Author has given his conclusions on the elements of natural justice thus :-" *

The timer has now come to conclude our examination of the subject of natural justice with a summary of the elements of which it is composed as extracted from the material contained in the preceding chapters.

Natural justice is an expression lacking in precision which in the past was used interchangeably with the expressions "natural law", " natural equity"," the laws of God"," summum jus", and other similar expressions, and is still used occasionally as a synonym for "natural laws". It is a part of natural law and of the common law of England and since it has in modern times come to be used almost exclusively as a comprehensive expression to describe the two procedural rules that no man shall be judge in his own cause and that both sides shall be heard, or audi alteram partem, it may be permitted to describe it as that part of natural law which relates to the administration of justice. The two principles of which it is composed do not, however, now override the statute law of the country

".

24. In this case, when the first respondent moved for entering his name in the Register, the second respondent wanted the retirement deed as well as the affidavit of the retiring patterns and also their consent for the applicants being substituted in their place. Instead of satisfying that requirement sought for, the first respondent filed the retirement deed of Nagalakshmi and Indumathi, who had nothing to do with the deed dated 1-2-1991 or 1-4-1992. It may also be noted that in the application for entering their name, the first respondent relied only an the partnership deed dated 1-4-1992 and not an any other documents. In the partnership deed dated 1-4-1992, neither the appellant nor the respondents are parties. Even the documents sought for were not produced. But, in spite of the same, without hearing the affected person, whose name was already on record, an Order was passed on 13-8-1993. It is in this connection, the decision reported in 1969 AIR(Del) 324 (supra) gains importance. In paragraph 18 of the judgment, the learned Judge, relying on Rules 73 and 74 of the Trade and Merchandise Marks Rules 1959, held that proof of title is necessary, and the inquiry must be conducted in the presence of both parties. The learned Judge said that" *

it is implicit in these rules that when an application for registration of assignment or transmission is made by some persons in respect of a trade mark in which the names of certain other persons are shown as registered proprietors, before any action is taken an that application, the persons whose names are already on the register must have a notice of that application. If the requirement of Section 44 is that the applicant should prove his title to the trade mark and the title set up by him is pitched against the title of someone else whose name is already borne on the register the inquiry must be conducted in the presence of both the parties

".

25. The Order was also not communicated to any one and the appellant came to know about the same only when he saw an advertisement in a local Malayalam daily. he immediately seeks intervention by writing a letter to the first respondents Attorneys on 5-5-1994. On his behalf, a notice was also issued to the third respondent to undo the mischief committed by the second respondent. He wants an action to be taken suo motu. It is on the basis of this letter written by the Solicitor on behalf of the appellant, that a notice was issued to the first respondent on 1-7-1994 why action should not be taken under Section 56 (4) of the.

26. Section 56 (2) of theenables any person considering himself aggrieved by the absence or omission from the register of any entry, or by any entry made in the register without sufficient cause, or by any entry wrongly remaining in the register, or by any error or defect in any entry in the register, to apply in the prescribed manner to a High Court or to the Registrar, and the Tribunal may make such order for making, expunging or varying the entry as it may think fit. (Emphasis supplied)

The power under sub-section (2) of Section 56 of thecould be exercised by the Tribunal on its own and after giving an opportunity of being heard, it can make any order referred to in sub-section (1) or sub-section (2).

27. When the third respondent was informed about a patent illegality committed by it, it was duty-bound to rectify the mistake. When an Order is passed without complying with the provisions of natural justice, it follows that the Authority has passed an illegal order and when that illegality was brought to its notice, there is an obligation on its part to correct its mistake. It is only for that purpose, notice was issued on 1-7-1994 to the first respondent. It may be noted that even the first respondent has no case that before deleting the name of the registered proprietors and in their place substituting the names of the surviving partners, any notice was issued to the appellant or the additional respondents. Once that is admitted, first respondent is also bound to cooperate with the Authorities to correct the mistake.

28. Section 44 of the Trade and Merchandise Marks Act provides for the registration of a person who becomes entitled to get his name entered by virtue of an assignment or transmission of a registered trade mark. The Proviso to Section 44 (1) reads thus:-" *

Provided that where the validity of an assignment or transmission is in dispute between the parties, the Registrar may refuse to register the transmission until the rights of parties are determined by competent Court

".

29. From a reading of the procedure before the Registrar, we find that it is summary in nature. Evidence is also taken by producing documents along with an affidavit. It is the discretion of the Registrar to take oral evidence in addition to the evidence filed by way of affidavit. Complicated questions of fact or law are not decided by the Registrar and he has to wait for the decision of a competent Civil Court.

30. When a suo motu proceedings was initiated under Section 56 (4) of the Act, both the appellant as well as the first respondent filed affidavit, counter affidavit, reply affidavit, etc., putting forward their own case. The Registrar was also informed about the pendency of the litigation between the parties before the Sub-Court, Kottayam, as O.S. No. 18 of 1995. The Registrar, after considering the affidavits and counter affidavits, passed the impugned order stating that a patent illegality has been committed without notice to the appellant and, therefore, status quo has to be restored. The Registrar was satisfied that it was apparent on the records that there was absence of notice to the appellant and no opportunity was given to him before the change of proprietorship of the mark and, therefore, there is no violation of provisions of Trade and Merchandise Marks Act and Rules. This finding itself is sufficient to sustain the order of the second respondent.

31. The fact that he has considered the affidavit and counter affidavit is also clear from the fact that after finding that there are grounds to cancel the Order dated 13-8-1993 and to restore the status quo, he further finds that so far as the names of Nagalakshmi and Indumathi are concerned, they have retired from the partnership from 1-4-1988 and, therefore, while restoring the status quo, their names need not be included in the Register though the original certificate includes their names also. The retirement of these two persons was brought to the notice of the Registrar by the first respondent himself in his counter affidavit.

32. Finally, after ordering status quo, second respondent directs that no further transaction will be entered in the Registers unless parties settle the matter and file a joint memo before him or a final adjudication by a competent Civil Court is brought to its notice. By virtue of that Order, what the second respondent did was, to undo the illegality committed by him and the parties were restored to their original position. We may note that neither Nagalakshmi nor Indumathi whose names were directed to be removed from the original Register is aggrieved by such action in view of their admitted retirement from the partnership. The first respondent cannot have any grievance for not including their names in the Register.

33. As per deed dated 1-2-1991, the appellant and additional respondents 4 to 6 retired. But at the same time, they were very careful in asserting their right in so far as the trade mark is concerned. That is why, a clause is provided in the Deed that they continued to use the name Parthas /Parthas Textiles. It is not a concession given by the surviving partners to the registered proprietors to use the trade mark. The clause therein cannot be construed as a relinquishment by the registered proprietors in favour of the surviving partners or an assignment or transmission by them to the continuing partners. Even the first respondent understood the clause in the deed of 1-2-1991 only in that way, and that is why he did not rely on the document dated 1-2-1991 for getting his name entered in the Registers. He relied only on the document dated 1-4-1992. The appellant and the additional respondents 4 to 6 signed the deed as retiring partners to signify their retirement from the firm. That is clear from the document itself.

34. Learned counsel for the first respondent submitted that the trademark is an asset of the partnership and once the appellant and respondents 4 to 6 have retired, they cannot have any right over the goodwill and the trademark will continue as an asset of the continuing firm. For the said purpose, learned counsel relied on the various provisions in the partnership deed wherein it is said that death or retirement of partner will not dissolve the firm and on the retirement, the retiring partner will not be entitled to any share in the goodwill. He relied on the provision of the partnership deed wherein it is stated that the accounts submitted to the Income-tax Authorities will be conclusive in so far as all the partners are concerned, and, in this case, after 1-2-1991, returns have been submitted to the Income-tax Authorities wherein payment to the appellant and additional respondents 4 to 6 has been recorded. He also said that accounts are maintained by the firm, and, after the retirement, the accounts of the retiring partners were settled and the payment was made by cheque. He also said that the bank accounts, the drafts, certificate from the Bank, all these things have been filed, and once the appellant as well as respondents 4 to 6 have ceased to be partners and their accounts have been fully settled, they cannot have any claim over the trade mark and, therefore, even without notices to them, the names of surviving partners can be substituted under Section 44 of the. According to the learned counsel, no notice is necessary in this case. For the said purpose, he also relied on the decision reported in 1996 AIR(SC) 1800 (Addnaki Harayanappa and another v. Bhaskara Krishnappa (dead) and thereafter his heirs and others).

35. The said contention of the learned counsel for the first respondent is challenged by the learned counsel for the appellant as well as the learned counsel for the additional respondents 4 to 6. According to them, the deed dated 1-2-1991 has not been acted upon and their accounts have not been settled. They also challenge the receipts alleged to have been signed by them on 9-12-1993. They admit the receipt of the amount, but not the issuance of the receipt which evidenced the full and final settlement in so far as they are concerned. They also brought to our notice pendency of a suit before Sub Court, Kottayam, wherein these matters are in issue. One big circumstance relied an by learned counsel for the appellant to show that the receipts dated 9-12-1993 are forged is, the statement made by Ist respondent on 27-1-1995 before the 3rd respondent. In the statement, even though it is stated by 1st respondent that the accounts have been settled and the amount has been paid by draft, nothing was said about the execution of some receipts. We find force in the said contention.

36. We do not think that these disputed facts need be considered by us especially when the matter is now pending adjudication before the competent Civil Court. In so far as Trade Mark is concerned, the is exhaustive. The 1st respondent who wants to get his name entered in the Register, has to prove that there was an assignment or transmission in his name. Admittedly, there is no document of assignment. It can also be said that there is no transmission in favour of 1st respondent and other surviving partners since there is no devolution by law. According to us, even this question need not be finally decided. Under Section 44 (1) Proviso, the Registrar may refuse to enter or recognise the subsequent proprietors name in the Register if the claim is disputed. The decision by 2nd respondent in this regard is, therefore, correct.

37. Learned counsel for the 1st respondent submitted that before the 2nd respondent, he has produced various documents, and none of them was considered, and, while passing the Order dated 4-12-1995, he has not applied his mind to any of these documents, and the Order itself was passed without giving them an opportunity of being heard. He also challenged the Order on the ground that his Counsel was not given sufficient opportunity to represent his case, and, for that reason, the Order of the second respondent is liable to be quashed. He has also filed C.M.P. No. 8224 of 1996 to receive documents as additional evidence before this Court. That application was filed on the last day of the arguments and, therefore, no written objection could be filed either by the appellant or the additional respondents 4 to 6. But they orally submitted their objections to the C.M.P.

38. It is stated by learned counsel for the first respondent that voluminous documents were filed before the second respondent, and it was only copies of these documents that are filed before this Court. The typed-set volumes 1, 2 and 3 filed before this Court were sought to be admitted in evidence.

39. Most of the documents that were filed before us were available with the first respondent and were in this possession even at the time when the proceedings were pending before the second respondent. Under Section 99 of the Trade and Merchandise Marks Act, evidence before the Registrar or Tribunal has to be by producing the document with an affidavit. When the statute itself provides for a particular mode of taking evidence, the Register can only act in accordance with the statute. It is admitted by learned counsel for the first respondent that even though he produced those documents, copies of the same were not submitted either to the appellant or to any of the affected persons, nor did he file any affidavit as contemplated by the. We must understand that the evidence is taken by affidavit in substitution for taking oral evidence. So, unless the Registrar thinks otherwise, that mode of taking evidence is exhaustive. It is at his discretion, it can be decided whether any oral evidence has to be taken in addition to the affidavit. But, evidence by affidavit is mandatory. Once that procedure has not been followed by the first respondent, it follows that he has not produced any evidence even though the same was in possession.

40. Under Section 109 (8) of the Act, the procedure of C.P.C. will apply in regard to hearing and disposal of Appeals. If so, the contingency under Order 41, Rule 27, C.P.C. has to be compiled with before any additional evidence could be taken before the appellate Court. In the affidavit filed in support of the application, we do not find that any ground has been urged in this regard.

41. We also decline to allow the C.M.P. for one more reason. While we are sitting in Appeal, we are considering the power of the Registrar. As we have said, the procedure before the Registrar is only summary, and what the Registrar has done is only to direct the parties to approach the competent Civil Court for getting an adjudication. In fact, the first respondent could not be aggrieved by such a procedure adopted by the Registrar.

42. Learned counsel for the 6th respondent has brought to our notice certain decisions in regard to admission of evidence in Appeal. We have already said that since the provisions of Order 41 Rule 27, C.P.C. have not been compiled with, it will be sufficient to reject the Application. To answer the various contentions in full, we may also consider the decisions submitted by the learned counsel.

43. In 48 RPC 309 (In the matter of Trade Marks of Carl Ingenohl & Werner Dayidis (trading as C. Ingenohl and Co.) and El Oriento Fabrika de Tabacos, Incorp.), at page 402, it has been held thus :-" *

... It may be that the matter would have to be further considered in every case, but, as at present advised, I think the Court has inherent jurisdiction to admit further evidence, but it is a jurisdiction which, of course, must be exercised with great care and with a desire to prevent parties from resorting to further evidence, if it is evidence which could have been produced at the trial but which they have not chosen to produce, being content to rely upon that which was already there; but evidence of facts which have come to the knowledge of the parties after the decision of the Court below can and often is admitted on appeal... ... ...

"We do not think that any such case has been made out by the first respondent.

44. In 1963 RPC 13 (George Thornhill & Co. Ltd.s Application), it was held thus :-" *

The admission of fresh evidence should be decided on the same principles as govern the Court of Appeal in deciding whether to admit fresh evidence on an appeal from the Queens Bench Division.

In those cases where it is sought to adduce further evidence on appeal following a decision of the Registrar of Trade Marks, the evidence being directed to a point that was not taken below, on the ground that the public interest may be injured if the evidence is not admitted, the evidence should be served on the Registrar, who should be heard as to whether the presence of such evidence at the hearing would have been likely to have affected his judgment. If the Registrar then states that the public interest would not have been injured by the omission of such evidence, the Court will generally exercise its discretion against its admission.

"45. Similar is the case in 1977 RPC 594 (Disco-Vision Trading Mark).

46. Learned counsel for the first respondent further submitted that the second respondent has not given them sufficient opportunity. According to him, the Order is in violation of the principles of natural justices. It was submitted that after receipt of notice dated 1-7-1994, the case was posted for the first time on 20-3-1995. It was strenuously contended by learned counsel that on 20-3-1995, his counsel was present before the second respondent with a representative before the Madras Branch of the Registry and made their submissions including the maintainability of the show cause notice and also filed a paper book containing number of documents, particularly partnership deeds dated 1-2-1991, 1-4-1991, 1-4-1992, notice of intention to retire, dated 31-10-1990, by the appellant and other retiring partners, receipt dated 9-12-1993 issued by the appellant and other retiring partners in proof of the receipt of the respective amount due from the petitioner-firm in full and final settlement of the amount due to them, and also other documents. It is further submitted that orders were reserved and after 20-3-1995, they were expecting orders.

47. The said contention of the learned counsel was disputed by learned counsel for the appellant. According to the learned counsel, even though notice was issued for appearance of the parties on 20-3-1995, the case was not taken up, and that the same was adjourned. It is true that notice was issued by third respondent for hearing the matter on 20-3-1995. But no evidence has been filed to substantiate the case when the matter was heard. In fact, the circumstances show that the case could not have been heard on that day. It is seen that after March 1995, till November 1995, the case could not be taken up since there was no officer to hear the matter. On 20-11-1995, the appellants counsel wrote to the 2nd respondent stating that originally the case was fixed on 20-3-1995, but it was adjourned from time to time, and finally the date of hearing was fixed as 21-11-1995. It is further seen that on 20-10-1005, the second respondent issued notice to the first respondent to argue the case on 30-10-1995, which was originally fixed at 11-30 a.m. But subsequently it is seen that it was adjourned to 21-11-1995 as per notice dated 8-11-1995. On 21-11-1995, the appellants counsel was heard and, as we have said earlier, the first respondents counsel agreed to submit written submissions before 28-11-1995, and the case was posted on 30-11-1995. On 28-11-1995, the first respondents counsel informed the second respondent that due to Tamil Nadu Bandh, they were not in a position to attend the hearing. In that letter, or in any other letter prior to that, they have not even whispered that the case was already heard on 20-3-1995.

48. We have already dismissed C.M.P. No. 8284 of 1996 to admit additional evidence. Learned counsel also relied on one document produced along with that C.M.P., to substantiate his case that on 20-3-1995, arguments were heard and documents were filed. Certain certified copies obtained on 25-6-1996 were filed before us along with the C.M.P. In one of the pages, there is a statement which reads thus :-" *

I was informed by xxx A.B. Shri Yadav that the case was orally argued on 20-3-1995 by Mark and Trades, Madras and they have given three sets of papers.

"It is not signed by anyone. It is seen that it is an endorsement in a paper wherein the following are also written :-

"O.S. 18/95, I.A. 67/95, affidavit and documents filed on 10-2-1995".

This endorsement is cancelled. From this endorsement, it is clear that the earlier statement was written on a paper which relates to O.S. 18 of 1995, a suit pending before Sub Court, Kottayam between the same parties. As we have said earlier, the endorsement is not signed by any one, and, from a reading of the same, it is clear that the person who has written it was informed by somebody that such an argument was put forward and certain documents were filed. How the first respondent was in a position to get such an endorsement from among the papers issued from Bombay is not required.

49. When we expressed our doubt as to the acceptance of such a contention, learned counsel also was not serious about his submission, for, he was also convinced that the statement therein would not have been made by the Trade Mark Authorities. Again, from the various certified copies, we do not find any endorsement by the Trade Mark Authorities that the documents mentioned therein were produced on 20-3-1995. So, we repel the contention of the learned counsel that the case was heard on 20-3-1995, and at the instance of the appellants counsel herein, the case was gain posted for arguments. Learned counsel for the first respondent also wanted us to take note of the wordings in the notice dated 20-10-1995, wherein it was written thus :-

"I am directed to inform you that a hearing has been refixed in this office... "(Underlining ours)

According to the learned counsel, the word refixed is suspicious. We do not find anything suspicious merely because the word refixed has been used in the notice. Learned counsel further submitted that the proceedings dated 21-11-1995 was only a pretence for hearing, and he referred to us the allegations in paragraph 10 of the affidavit in C.M.P. 3507 of 1996 filed before this Court along with the Appeal which he filed.

50. We may say that we cannot take note of such allegation on the basis of the affidavit when the respondents were not given any opportunity to answer the same. We have already stated that the Appeal before the learned Judge was disposed of at the admission stage itself, and no notice was given either to the Assistant Registrar or Registrar of the Trade Marks and, therefore, we decline to take into consideration the allegations in paragraph 10 of the affidavit.

51. On 21-11-1995, the appellants counsel alone was heard, and by the time the counsel concluded the argument, it was 6-15 p.m., and the case had to be adjourned to the next day. But, due to inconvenience of the counsel, it was agreed that they will file written submission before 28-11-1995. The request made for an adjournment to some other day was declined. The rejection of the adjournment application, according to the learned counsel for the first respondent, was violative of the principles of natural justice. Learned counsel submitted that they were not given an opportunity to argue the matter, and that without giving them an opportunity, the order was pronounced on 4-12-1995.

52. We cannot accept the said argument for the following reason:-

It is true that on 21-11-1995, the appellants counsel concluded his argument by 6-15 p.m. and the matter was also to be posted the next day. The inconvenience of counsel for 1st respondent was brought to the notice of 2nd respondent and he wanted the matter to be posted on some other day for arguments. There was even a suggestion by 1st respondent that he will bear the expenses of appellants counsel for his presence at Madras by paying the airfare. But thereafter, the 1st respondent himself agreed that there was no necessity for any oral arguments, and he said that he will be satisfied if time was given for furnishing written submissions. The second respondent agreed to such suggestion, and the first respondents counsel was directed to submit his written submission before 28-11-1995. He was also directed to give copy of his submissions to the appellants counsel. Till 29-11-1995, no written arguments were submitted before the second respondent. On 30-11-1995, when the case was called, it was found that no written submission was filed, and the matter was taken as heard, refusing the adjournment.

53. Now, the question is, whether the procedure adopted by the second respondent is in any way violative of the principle of natural justice.

54. We have already said that on the basis of the notice dated 1-7-1994, both the appellant as well as the respondents were submitting affidavits, counter-affidavits, reply affidavits, additional reply affidavits, etc., and it was on that basis, they wanted to urge the matter before the Authority. It is not a case where no opportunity was given. The first respondents counsel himself submitted that there was no necessity for any oral arguments. Principle of natural justice does not say that the authority should give an oral hearing. In taking this view, we are supported by a recent decision of the Supreme Court reported in 1996 AIR(SC) 1509, 1996 (3) AD(SC) 497, 1996 (83) ELT 486 [LQ/SC/1996/692] , 1996 (3) JT 597, 1996 (3) Supreme 92, 1996 (3) Scale 103 [LQ/SC/1996/692] , 1996 (4) SCC 69 [LQ/SC/1996/692] , 1996 (2) UJ 409, 1996 [LQ/SC/1996/692] (64) ECR 169 (Union of India and another v. M/s. Jesus Sales Corporation) wherein, their Lordships have held thus :-" *

The High Court has primarily considered the question as to whether denying an opportunity to the appellant to be heard before his prayer to dispense with deposit of the penalty is rejected, violates and contravenes the principles of natural justice. In that connection, several judgments of this Court have been referred. It need not be pointed out that under different situations and conditions the requirements of compliance of the principle of natural justice vary. The courts cannot insist that under all circumstances and under different statutory provisions personal hearings have to be afforded to the persons concerned. If this principle of affording personal hearing is extended whenever statutory authorities are vested with the power to exercise discretion in connection with statutory appeals, it shall lead to chaotic conditions. Many statutory appeals and applications are disposed of by the competent authorities who have been vested with powers to dispose of the same. Such authorities which shall be deemed to be quasi-judicial authorities are expected to apply their judicial mind over the grievances made by the appellants or applicants concerned, but it cannot be held that before dismissing such appeal or applications in all events the quasi-judicial authorities must hear the appellants or the applicants, as the case may be. When principles of natural justice require an opportunity to be heard before an adverse order is passed on any appeal or application, it does not in all circumstances mean a personal hearing. The requirement is complied with by affording an opportunity to the person concerned to present his case before such quasi-judicial authority who is expected to apply his judicial mind to the issues involved. Of course, if in his own discretion if he requires the appellant or the applicant to be heard because of special facts and circumstances of the case, then certainly it is always open to such authority to decide the appeal or the application only after affording a personal hearing. But any order passed after taking into consideration the points raised in the appeal or the application shall not be held to be invalid merely on the ground that no personal hearing had been afforded... ... ... "(Emphasis supplied)

55. The decision reported in 1996 AIR(SC) 1586, 1996 (1) AD(SC) 436, 1996 (1) CCC 106, 1996 (1) JT 77, 1997 (1) RCJ 600, 1996 (2) RCR 328, 1996 (1) Supreme 369, 1996 (1) Scale 153, 1996 (2) SCC 23 [LQ/SC/1996/11] (Cantonment Board and another v. Mohanlal and another) related to the demolition of illegal construction. In that case, notice was issued and the petitioner therein also filed written submissions before the Board. But they did not give any personal hearing to the petition. A contention was taken before the Supreme Court that the principles of natural justice have been violated since sufficient opportunity for hearing was not given. In paragraph 3 of the judgement, their Lordships said thus :-" *

It is seen that the Cantonment Board is an elected body represented by the people themselves. When opportunity was given putting on notice of illegal construction made by the respondent, reply thereof was given. The Board had considered the representation and was not inclined to accede to the request made by the respondent. Accordingly, the resolution passed by the Cantonment Board cannot be faulted as violative of the principles of natural justice.

"56. In the case in 1996 (32) ATC 659, 1996 AIR(SC) 1081, 1996 (1) AD(SC) 834, 1996 (72) FLR 659 [LQ/SC/1996/124] , 1996 (1) JT 702, 1996 LIC 947, 1996 (2) LLJ 699 [LQ/SC/1996/124] , 1996 (1) SLR 744 [LQ/SC/1996/124] , 1996 (1) Supreme 618, 1996 (1) Scale 489, 1996 (2) SCC 98 [LQ/SC/1996/124] , 1996 SCC(L&S) 417, 1996 (1) SCJ 655 [LQ/SC/1996/124] , 1996 (1) UJ 250, 1996 [LQ/SC/1996/124] (1) CLR 429, 1996 SCC(L&S) 417, 1996 SCC(L&S) 417, 1996 SCC(L&S) 417, 1996 SCC(L&S) 417, 1996 SCC(L&S) 417, 1996 SCC(L&S) 417 (Haryana Warehousing Corporation v. Ram Avtar and another), the question was regarding the stoppage of Efficiency Bar. Certain adverse entries were made in the Service Record of the respondent in that case, and, therefore, he was not allowed to cross the Efficiency Bar. On the basis of the Service Records and also on the basis of the representations made by the respondent, orders were passed by the Authority against him. No oral arguments were heard before passing the Order. The same was challenged before the High Court, which held that the respondent therein was not given sufficient opportunity and the principle of natural justice had been violated. The same was challenged before the Supreme Court, and paragraphs 11 and 12 of the judgment are material in this regard. The relevant portions of these paragraph read thus :-" *

.... Besides providing for a post facto hearing, a concept which is not unknown to the principles of natural justice, the speaking order which is passed can also be subjected to judicial review, as has been done in the present case. The passing of speaking order, however, does not mean that before the authority concerned cames to the conclusion of stopping a person at the efficiency bar stage, an opportunity of hearing must be given to him. Consideration of all materials before taking the decision is sufficient compliance of the requirement.

xxx xxx xxx

... The said adverse entry had been communicated to him and the objections filed thereto were considered, but were rejected. The High Court was, therefore, not right in coming to the conclusion that the principles of natural justice were not complied with in the present case.

"(Emphasis supplied)

57. In this case, on their own request, the case was adjourned for filing written submission. But the first respondent failed to do so, and, after going through the order, we do not find that the Authority, i.e., the second respondent, had failed to consider their case. The said contention of the learned counsel for the first respondent is, therefore, rejected.

58. Even though the Order of the second respondent was attacked before the learned Judge, we do not find that even the learned Judge was inclined to set aside the Order of the second respondent. The learned Judge only modified the order to the extent as stated therein. The first respondent has not filed any cross-appeal or any independent appeal against the Order of the learned Judge. We have our own doubts whether the first respondent can be permitted to urge these contentions without filing any cross-appeal.

59. It is contended by learned counsel for the first respondent that the second respondent has passed an Order even beyond the scope of the application. It is further said that the Order, a subsequent order was passed by the second respondent on 9-1-1996 and the same is without notice to them.

60. We have perused the records and also heard learned counsel for the appellant in this case. We do not find any substance in that argument.

61. Even in the Order dated 4-12-1995, the second respondent has said that Mrs. Nagalakshmi and Indumathi have retired and have filed affidavits, evidencing the same on 21-10-1992. In this Order itself, second respondent has said that while restoring status quo, the two names will have to be deleted in view of that affidavit. We also said in that Order that if a formal request is made in that regard, that change also will be made in the decretal Order to be prepared in accordance with the Form under the. Pursuant to the direction made in the Order dated 4-12-1995, a request was made and thereafter the second respondent passed an Order deleting the names of Nagalakshmi and Indumathi. This is only a consequential Order in terms of the Order dated 4-12-1995.

62. It is also contended by learned Counsel for the first respondent that proceedings initiated by him under Section 56 (4) of thewas without jurisdiction, and if at all any action could be taken, it can only be under Section 57 of the.

63. The scope of Section 57 of theis only to correct the Register and that has to be made on the application made in the prescribed manner. We have already said that under Section 56 (4) of the Act, the Registrar, on his own motion, can exercise the powers contemplated under Section 56 (1) and (2). Notices were also issued under that Section and the reply was also given by the contesting respondents. When an entry is made in the Register without sufficient cause or when an entry is remaining wrongly in the Register, the same cannot be said to be a correction in the Register, an contemplated under Section 57 of the. The powers exercised under Section 56 of theare more or less quasi-judicial. The scope of Section 57 of the Act, as we have said, is either ministerial or administrative, and the scope is very much limited. The said argument of the learned counsel is, therefore, rejected.

64. In paragraph 6 of the judgment, the learned Judge has observed thus :-" *

... I am of the opinion that since the trade mark has been registered in the name of the then partners of the partnership firm and now that the first respondent had retired from the partnership first, he cannot claim any share or right in the appellants firm. However, the first respondent is legally entitled to use the trade name Parthas Textiles/Parthas for his separate business as per the deed of retirement."

This, facie a manner of new manufacture or improvement ;

(f) the specification relates to more than one invention ;

(g)------

(h)-------

cording to us, is not the case put forward by either party. The appellant is not claiming any share in the firm, nor has he a case before us that the trade mark was registered in his name also in his capacity as a partner. We have already discussed the above point in the earlier portions of our judgment. Further, the learned Judge has assumed that the appellant and respondents 4 to 6 were permitted to use the trade mark on the basis of the deed of retirement. The interpretation given by the learned Judge, according to us, is not correct. We are of the view that the learned Judge should not have held so, especially when litigations are pending before competent Civil Courts, and, for the purpose of deciding the Appeal, the learned Judge should not have embarked upon the inter se dispute between them, in view of the proviso of Section 44 (1) of the.

65. When this Court is exercising the appellate power against the Order of Registrar of Trade Marks, we must also take into consideration the discretion exercised by him. The discretion, even if it is fanciful, this Court will be reluctant to interfere with the same, if it is exercised judiciously - vide 49 RPC 306 (Union Carbide & Carbon Corporations Application to Register a trade mark). We may also note that the Registrar is by experience in a unique position to reach a sensible conclusion and is of great advantage to a tribunal hearing an appeal from the Registrar, and if the Registrar has reached the conclusion after talking into consideration all relevant circumstances and in accordance with law, such a discretion should not be lightly interfered with vide 1977 RPC 594 (supra).

66. In the result, the Trade Mark Second Appeal is allowed by setting aside the judgment of the learned single Judge and restoring the order of the Second respondent, however, without any order as to costs.