Chagla, C.J:— This is an appeal which arises out of an order made by the Register of Trade Marks. The respondent applied for registration of his trade mark on 21-8-1942. The application was advertised on 1-10-1945, and the appellant filed his notice of opposition on 23-3-1946. The respondent submitted his reply on 12-7-1946. On 5-12-1947, the appellant filed affidavits in which he referred to a certain panchnama dated 19-10-1947. The case of the appellant was that his father was the proprietor of the trade mark which the respondent was seeking to register, and that by this document of 1937 his father had given leave and licence to the respondent to use the trade mark and the trade mark was to be used by the respondent only so long as the leave and licence had not been revoked. An affidavit was made by the respondent in reply to the affidavit of the appellant, but no reference was made in this affidavit to the panchnama relied upon by the appellant in his affidavit. At the hearing before the Registrar, the respondent challenged the panchnama as a forgery. He contended that it did not bear his signature. The learned Registrar came to the conclusion that the panchnama was a genuine document, but he held that the provision of the panchnama militated against public policy inasmuch as the appellant's father permitted the respondent to use the trade mark for an indefinite period and acquire a reputation in the market, and then permitted the appellant's father to revoke the licence at any time he so desired. The view he took was that, if the revocation was within a reasonable time, the position might be different, but, as the position stood, it was against public policy. He, therefore, held that, notwithstanding the proof of the panchnama, as the respondent had proved user of his trade mark in certain districts in the State of Madras, he therefore ordered registration of the mark limited to certain districts. From this order of the Registrar the appellant appealed to the High Court. That appeal came before Coyajee J. and the appeal was dismissed on the ground that it was barred by limitation. The respondent also appealed from the order of the Registrar. That appeal came before Shah J. To that appeal the appellant cross-objected. Shah J. set aside the order of the Registrar in so far as it limited the registration of the trade mark to the two districts specified in the order, and he called upon the Registrar to proceed to hear the petition according to law and decide the question as to whether the petitioner was entitled to obtain registration of the mark without any limitation. He also held that the cross-objections of the appellant did not lie inasmuch as the appeal preferred by him had been dismissed by Coyajee J. The reason which led the learned Judge to remand the petition to the Registrar was that an opportunity was denied to the respondent to prove that the panchnama was not a genuine document; and the learned Judge also says in his judgment that an application for adjournment was made by the respondent, in order to lead evidence with regard to the authenticity of the document and that application for adjournment was refused.

2. Now, with regard to this application for adjournment we find that, in the grounds of appeal before the learned Judge below, it is now-where mentioned that the application for adjournment was made in order to enable the respondent to establish that the document under consideration was a forgery. As a matter of fact, the grounds refer only to one application for adjournment, which was to enable the respondent to produce his books of account from Trichinopoly to prove continuous user of the said mark since 1923. We have been told at the bar that an application for adjournment was made to the Registrar in order to enable the respondent to lead evidence as to the genuineness of the panchnama. But there is no record of any such application in the notes of the Registrar. It is unnecessary to consider this question further, because, in our opinion, the learned Registrar did allow certain evidence to be led with regard to the proof of the document. The grievance of the respondent now is that he was not allowed to lead all the evidence and there is some more evidence available which he wants to adduce before the Registrar. The learned Judge, with respect to him, is not also wholly justified in the view that he took that the Registrar came to the conclusion that the panchnama was proved because no objection to the document was taken by the respondent in his affidavit. The learned Judge seems to have been under the impression that the Registrar merely went on the pleadings and raised a presumption against the respondent and came to the conclusion that the document was proved because the respondent had failed to take any objection to the document when it was disclosed in the affidavit of the appellant. This is not wholly borne out by the judgment of the Registrar, because, although the Registrar does say “I do not think it would be fair to the opponent if I were to allow the applicant at the hearing to deny having signed the panchnama, as the issue was not raised in any part of his defence”, still he does go on, in fact, to consider the evidence which was actually led as to the signing of this document There-fore, although this particular fact might have weighed with the Registrar, it was not the only fact on which his judgment was based. But, as I said before, the position is that the respondent has further evidence to lead which he has not led before the Registrar; and we do not think, taking everything into consideration, that it would be proper for us, sitting in appeal, to interfere with the order of remand made by the learned Judge, as in doing so he has exercised his discretion.

3. But there is one rather important matter of procedure to which I should like to refer. It is clear under the Trade Marks Act that the Registrar is given the power to decide any matter that comes before him on affidavit. Section 70, sub-cl. (b) provides that evidence shall be given by affidavit, provided that the Registrar may, if he thinks fit, take oral evidence in lieu of, or in addition to such evidence by affidavit. Therefore, the scheme of the Act is that ordinarily all disputed questions of fact should be disposed of by affidavit. But there may be cases where it would be impossible to decide disputed facts on affidavit, in which case discretion is vested in the Registrar to take oral evidence either in lieu of or in addition to evidence by affidavit. Now the position under the rules framed under the Trade Marks Act is that, after the notice of opposition is given, evidence in support of opposition is given by the person opposing the registration, and this evidence is given by affidavit and the affidavit should set out the evidence on which the opponent intends to rely. Thereafter, evidence in support of the application is given by the applicant, and that too is given by affidavit. A further right is given to the opponent to give evidence in reply, but that can only be done by leave of the Registrar; and R. 36 provides that no further evidence is permissible although the Registrar may, at any time if he thinks fit, give leave either to the applicant or to the opponent to lead evidence on such terms as to costs or otherwise as he may think fit.

4. Now, the expression used in R. 34 “evidence in support of application” is rather equivocal. It has been suggested by Mr. Desai that under this rule the only evidence the applicant is called upon to adduce is evidence in support of his own application. The evidence does not refer to evidence in rebuttal of the evidence submitted by the opponent in support of his opposition. It is impossible to accept that contention, because evidence in rebuttal of the case of the opposition is also evidence in support of the application. And if all matters are to be ordinarily disposed of by affidavit, it would be incumbent upon the applicant, in dealing with the evidence in support of the opposition, to rebut any case that might have been set up by the opponent. Therefore, in this case, when the panchnama was relied upon by the opponent in his affidavit, it was incumbent upon the applicant to deal with that document. The learned Judge points out that there was some discrepancy as to the date of the document as mentioned in the affidavit and the actual date of the document which was proved before the Registrar.

5. But apart from this discrepancy, the affidavit of the opponent does set out the terms of the document and its effect, and it is undoubtedly significant that the applicant did not in any way deal with that document. He challenged the document for the first time when the matter came before the Registrar and then the Registrar decided that evidence should be led. All the evidence with regard to this document in the first instance should have been by affidavit, and if the case of the applicant was that he had never put his signature to any such document and that, if his signature had appeared on any such document, it was a forgery, he should have set out that case in his affidavit in support of his application. Therefore, we cannot say that the Registrar was entirely in error when he attached considerable importance to the fact that the applicant had not denied his signature in the affidavits which had been filed before the hearing took place before the Registrar. But the learned Judge is right when he says that, when the document was of such great importance, the applicant should not have been denied the opportunity of leading all the evidence he wanted to in order to establish that the document was a forgery. It would be taking too technical a view of the rules to have tied the applicant down to his admission in the affidavits that the document was not a forgery or that the document was a genuine one and that too not an express admission but merely a constructive admission inasmuch as he had not expressly denied the genuineness of any such document.

6. But a more interesting question has been raised and debated at the bar, and that is whether the learned Judge was right in coming to the conclusion that the cross-objections preferred by the appellant were barred and not maintain, able. Now, the view that the learned Judge has taken is that, when Mr. Justice Coyajee dismissed the appellant's appeal, the order of the Registrar became merged in the order of the appellate Court and, therefore, it was not open to the appellant to re-agitate the same question by way of cross-objections. Now, with respect to the learned Judge, the learned Judge is in error when he takes the view that the judgment of the Registrar was merged in the order of dismissal passed by Mr. Justice Coyajee. A merger only takes place when the Court of appeal judicially determines the appeal pending before it. It is only on a judicial determination that the order of the lower Court becomes merged in the decision of the Court of appeal. But no merger takes place when the Court of appeal does not judicially determine the appeal but dismisses it on any preliminary ground like limitation or maintainability. Then, on the dismissal by the appellate Court, the order that still stands is the order of the lower Court and not the order of the Court of appeal. This position is clear as laid down by the Privy Council in Abdul Majid v. Jawahir Lal, 36 ALL. 350. In that case, His Majesty-in-Council dismissed an appeal for want of prosecution. This was an appeal from a preliminary decree for sale, and the question was whether limitation began to run from the preliminary decree or from the order of the Privy Council dismissing the appeal from the preliminary decree; and the Privy Council held that limitation ran from the preliminary decree and not from the Order-in-Council. The reason why the Privy Council came to this conclusion was that there was no judicial determination of the matter by His Majesty-in-Council.

7. Mr. K.T Desai, on behalf of the respondent, has approached the matter from an entirely different point of view. Mr. Desai has contended that, under S. 76 of the Trade Marks Act, an appeal is provided, and that appeal is to be preferred within the period prescribed by the Central Government. Mr. Desai says that a right of appeal is the creature of statute and that right cannot be expanded; and, therefore, according to Mr. Desai, the only right of appeal that the appellant had was the right which he exercised when he went before Mr. Justice Coyajee; and that appeal being out of time, he cannot prosecute the subject-matter of that very appeal by means of a cross objection. Now, under S. 76, sub-cl. (3), it is provided that, subject to the provisions of this Act and of rules made thereunder, the provisions of the Civil Procedure Code, 1908, shall apply to appeals before a High Court under this Act. Therefore, in order to decide what the position with regard to cross-objections is, we have really to look at the Civil Procedure Code which regulates the procedural aspect of appeals provided by S. 76; and what we have to look to is O. 41, R. 22. That rule provides that any respondent, though he may not have appealed from any part of the decree, may not only support the decree on any of the grounds decided against him in the Court below, but take any cross objection to the decree which he could have taken by way of appeal. Therefore, when the respondent preferred his appeal before Mr. Justice Shah, if O. 41, R. 22, applies then undoubtedly the appellant had a right to cross-object. The question that we really have to consider is whether the right to cross-object given to the appellant under O. 41, R. 22, was in any way affected by the fact that his own appeal was dismissed by Mr. Justice Coyajee. Now, there can be no doubt that, if Mr. Justice Coyajee had dismissed the appellant's appeal on merits, the appellant could not have cross-objected; because, as I pointed out earlier, there would have been a merger of the judgment or the Registrar in the judgment of Mr. Justice Coyajee given on merits. And apart from merger, the appeal would have been barred also on the principle of res judicata: there cannot be a fresh agitation of the same matter which was already concluded by the decision of the Court of appeal on merits. But the problem presents a difficulty in this case because the judgment of Mr. Justice Coyajee was not given on merits. Now, it is rather important to note that the language used by O. 41, R. 22, is “any respondent, though he may not have appealed from any part of the decree”. The language used by the Legislature is not “any respondent, if he has not appealed from any part of the decree”. Therefore, the right given to the respondent is an additional right and not a limited right. If the language used had been “if he has not appealed”, then undoubtedly, as soon as the respondent appeals, whatever the fate of that appeal might be, his right to cross-object would be barred. But as the, language used is “though he may not have appealed from any part of the decree”, the mere fact of the pendency of the appeal by the respondent would not affect his right to cross-object. If the pendency of his appeal would not affect his right, the question is whether the dismissal of the appeal not on merits would affect his right to cross-object under O. 41, R. 22.

8. Now, Mr. Desai contends that as there is only one right of appeal given under S. 76 and that right has been exercised, we should not permit the appellant to exercise that right again by means of cross objections. Now, what is overlooked in advancing this argument is the difference between a right and a remedy. The respondent had a right of appeal given to him under S. 76. The remedy for exercising that right was to prefer an appeal to Mr. Justice Coyajee. That remedy is now barred. But if another remedy is now open to him to exercise the same right, there is no reason why he should not avail himself of that remedy. Let us put it in this way. An appellant has two remedies by which he can bring his appeal before the appellate Court: he may either appeal or he may cross-object. If the remedy by way of appeal is barred, the remedy by way of cross-objections may still be open to him and may not be barred. And in this case, the respondent availed himself of the remedy by way of appeal. He failed in that remedy, and now he seeks to enforce his right by the other remedy open to him under the Civil Procedure Code, namely, under O. 41, R. 22. Although the remedy by way of appeal might be barred, the right is not extinguished and that right subsists, and it is by means of cross-objections that the appellant is attempting to enforce his right.

9. Now, Mr. Desai has drawn our attention to certain decisions on which he relies for the proposition which he has advanced before us. The first is a decision of the Allahabad High Court in Ramji Das v. Ajudhia Prasad, 25 ALL. 628. In that case, it was held that it was not open to a party who had appealed, and whose appeal had been dismissed, subsequently to such dismissal, to prefer objections under S. 561 to the decree of the Court of appeal. section 561 of the old code corresponded to our O. 41, R. 22. Now, in this case it is clear that the dismissal of the appeal was on merits and not on the ground that it was barred by limitation. Then there is a judgment of the Patna High Court in Deo Narain Sahu v. Ganesh Ram, A.I.R (23) 1936 Pat. 604. In that case, the plaintiff succeeded in the lower Court. Defendants 1 and 2 appealed, and their appeal was dismissed as being out of time. Then defendants 3 to 5 appealed, and defendants 1 and 2 cross-objected. The question that arose was with regard to the maintainability of the cross-objections of defendants 1 and 2, and the decision of the Court really turned on the fact that defendants 1 and 2 were cross-objecting against the decision in favour of the plaintiff. What the Court held was that you cannot cross-object against a co-respondent; you must cross-object against the appellant. This is really the ratio of the decision. But Mr. Desai has relied on an observation in the judgment of the Court which is to the effect that the cross-objections of defendants 1 and 2 were nothing more than the old appeal which was dismissed, and, therefore, the cross-objections did not lie. In my opinion, this observation is merely an obiter and was not really necessary for the decision of the case. As a matter of fact, the Court has not applied its mind at all to this aspect of the case. It was sufficient to dispose of that particular case on the ground that the cross-objections were not maintainable as the cross-objections were against the decision in favour of the co-respondent and not in favour of the appellant. Then there is another judgment of the Allahabad High Court on which reliance has also been placed, and that is in Parbhu Dayal v. Murli Dhar, A.I.R (11) 1924 ALL. 867. The facts there were that the defendant in the suit filed an appeal to the District Court. Then he applied to withdraw his appeal and on that application his appeal was dismissed. A day after this dismissal, the plaintiff filed his cross-objections. Those cross-objections were also dismissed. Then the plaintiff filed an appeal against the judgment of the trial Court, and the defendant filed cross-objections. And the learned District Judge held that the defendant's cross-objections were barred. When the matter came in second appeal before the Allahabad High Court, that Court considered two questions. One was whether the cross-objections of the defendant were properly held to be barred. And Mr. Desai says that here also the cross-objections were dismissed without being heard on merits, and, therefore, the same principle should apply to a dismissal of the appeal by Coyajee J. on the ground of limitation.

10. Now, if one looks at the judgment, it is clear that the view taken by the Allahabad High Court of the dismissal of the defendant's appeal was that the dismissal was on merits, because they took the view that, when a party withdraws his appeal and the appeal is dismissed, the dismissal is on merits and operates as res judicata. But it is rather significant to note in this case that the Allahabad High Court held that, although the plaintiff had cross-objected and those cross-objections had been dismissed, inasmuch as the dismissal was not on merits, the plaintiff's own appeal was not barred. Although the subject-matter of the cross-objections and the plaintiff's appeal was identical, because there was no judicial determination of the plaintiff's cross objections, his right to appeal was not held to be barred. Therefore, if anything, this decision supports the contention of Mr. Palkhiwalla that without a judicial determination of the appeal of the appellant it cannot be said that he has no right to have his cross-objections judicially determined because the subject-matter of the appeal and the cross-objections happened to be identical. Therefore, in my opinion, cross-objections under O. 41, R. 22, are not barred, nothwithstanding the dismissal of the appeal of the respondent, if that appeal was not dismissed on merits, although the subject-matter of the respondent's appeal and his cross-objections might be identical. Therefore, in my opinion, the learned Judge below was in error when he held that the cross-objections of the appellant were not maintainable.

11. Now, it would lead to a great deal of confusion if we were to send back the cross-objections of the appellant to the learned Judge below for determination. And it would also lead to considerable difficulty if we ware to maintain the order of remand passed by the learned Judge in the form in which he has passed it. We think that the best thing to do would be to remand the whole matter to the Registrar with directions that he should consider the application of the respondent de novo, hear all the evidence which is to be led both on the question of the authenticity of the panchnama and also on the question of the proprietorship of the mark and also with regard to the user of the mark, and, after considering the evidence, decide whether the respondent is entitled to registration of the mark, and, if so, whather to an unlimited exent or with limitations. The Registrar will also consider again whether his view that the provision of the panchnama is against public policy is justified in the light of the authorities which Mr. Palkhiwalla wanted to cite before us. Mr. Palkhiwalla's contention was that the learned Registrar did not consider this aspect of the question in the light of legal principles and the authorities, and that he should be asked to reconsider this question.

12. Save as indicated above in this judgment, there will be no order on the appeal.

13. On the question of costs, as far as the parties are concerned, the learned Judge made the costs of the petition before him to abide the result of the application and he dismissed the cross objections of the appellant with costs. We will vary that order and provide that both the costs of the petition and the costs of the cross-objections will abide the result of the application. With regard to the costs of this appeal, there will be no order as to costs of the appellant and the respondent.

14. The next question is what order as to costs we should make with regard to the Registrar. Now, there are certain cases in which the Registrar should appear and can legitimately claim hie costs. In our opinion, this is not one of those cases. The Solicitor-General, who appeared for him, made it clear that the Registrar was not interested in the decision. As a matter of fact, there is no decision, because the only order of the learned Judge below is an order of remand. The Solicitor-General said that he appeared in order to help the Court by pointing out certain errors in the judgment of the lower Court. Now, it seems to us that this is rather a startling proposition for the Solicitor General to advance. I have never heard of a Judge of first instance briefing counsel in a Court of appeal in order to point out that the judgment of the lower appellate Court was wrong and his judgment was right. If this were the true principle, then every time we hear a second appeal we should look to being guided by the Judge of the trial Court appearing by counsel and telling us what the mistakes in the judgment of the lower Court are. We take it that this Court is sufficiently competent to find out for itself, with the guidance of the counsel of parties, as to what errors, if any, have been committed by the lower Court. We, therefore, think that it was entirely wrong on the part of the Registrar in this case to have appeared merely for the purpose of elucidating his own judgment and pointing out the errors in the judgment of the Court below. That is not the proper function of the Court of first instance, and in this case the Registrar is nothing else except the Court of first instance. He must submit to the judgment of lower appellate Court if there is no appeal from that judgment. If there is an appeal, he must submit to the judgment of the, final Court of appeal. If his judgment is right, it will be restored by the final Court and the errors of the lower appellate Court will be rectified; if his judgment is wrong, then the lower appellate Court's judgment will be confirmed by the final Court of appeal. But, as I said before, this Court neither needs illumination nor guidance from the Judge of the first instance as to what are the errors in the judgment of the lower appellate Court.

15. We, therefore, make no order as to costs of the Registrar.

16. Bhagwati, J.—I agree.

V.B.B

Case remanded.