D.K Deshmukh, J.:— By this petition, the petitioner challenges the entry in respect of trade mark ‘JYOTI’ under No. 421846 in class 7 in the name of respondent No. 1. According to the averments in the petition, the petitioner is a registered proprietor of the trade mark ‘JYOTI’ and that registration was made in August 1982. According to the averments in the petition, on 14th May, 1984, one Shri Jai Narain Agarwal, who was sole proprietor of M/s Maharashtra Enterprises, applied for registration of trade mark ‘JYOTI’ in class 7 and pursuant to that application, the trade mark ‘JYOTI’ was registered in favour of the said person on 14th May, 1984. Thus, in this petition, the petitioner is challenging an entry made in the trade mark register on 14th May, 1984. This petition has been filed under section 56 of The Trade and Merchandise Marks Act, 1958. Sub-sections (1) and (2) of section 56 are relevant, they read as under:—
“56. Power to cancel or vary registration and to rectify the register:—
(1) On application made in the prescribed manner to a High Court or to the Registrar by any person aggrieved, the Tribunal may make such order as it may think fit for cancelling or varying the registration of a trade mark on the ground of any contravention, or failure to observe a condition entered on the register in relation thereto.
(2) Any person 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 on the register, or by any error or defect in any entry in the register, may 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”
2. Perusal of the above provisions shows that any person who feels aggrieved by any entry made in the trade mark register, can make an application to this Court for cancellation of that entry. It is common ground before me that under the Trade Marks Act, there is no period prescribed within which such an application can be made. Section 3 of the Limitation Act lays down that subject to the provisions contained in sections 4 to 24, every suit, appeal preferred and application made after the prescribed period shall be dismissed although limitation has not been set up as a reason. Section 3 of the Limitation Act reads as under:—
“3. Bar of limitation
(1) Subject to the provisions contained in sections 4 to 24 (inclusive), every suit instituted, appeal preferred, and application made after the prescribed period shall be dismissed although limitation has not been set up as a defence.
(2) For the purposes of this Act—
(a) a suit is instituted—
(i) in an ordinary case, when the plaint is presented to the proper officer;
(ii) in the case of a pauper, when his application for leave to sue as a pauper is made; and
(iii) in the case of a claim against a company which is being wound up by the court, when the claimant first sends in his claim to the official liquidator;
(b) any claim by way of a set-off or a counter-claim, shall be treated as a separate suit and shall be deemed to have been instituted—
(i) in the cases of set-off, on the same date as the suit in which the set-off is pleaded;
(ii) in the case of a counter-claim, on the date on which the counter-claims made in court;
(c) an application by notice of motion in a High Court is made when the application is presented to the proper officer of that court.”
3. It is clear from the provisions of sub-section (1) of Section 3 of the Limitation Act that every Court is under a duty to dismiss every application submitted before it after the prescribed period even if limitation has not been set up as alleged. The terms ‘period of limitation’ and ‘prescribed period’ have been defined by section 2(j) of the Limitation Act. It reads as under:—
“2(j) ‘period of limitation’ means the period of limitation prescribed for any suit, appeal or application by the Schedule, and ‘prescribed period’ means the period of limitation computed in accordance with the provisions of this Act.”
4. It is clear therefore that The High Court would be under a duty to dismiss an application made under section 56 if it finds that it has not been submitted within the prescribed period. It is thus clear that as the application under section 56 can be made to the High Court, the provisions of the limitation act would apply and as in the schedule of the Limitation Act, there is no specific entry made providing the period of Limitation for making an application under section 56, the period of limitation would be governed by Article 137 which reads as under:—
“Any other application for which no period of limitation is provided elsewhere in this Division;
Three years.
When the right to apply accrues.”
5. According to Article 137 of the Limitation Act, the application can be made within a period of three years from the date when the right to apply accrues. Perusal of the provisions of section 56 of The Trade and Merchandise Marks Act quoted above shows that a person who feels aggrieved by an entry made in the register can make an application under that section for cancellation of the entry. The grievance of the petitioner is that as his trade mark was already registered, the trade mark of the respondent No. 1 could not have been registered. Therefore, the petitioner is the person who is aggrieved by an entry made in the register, therefore his right to apply under Section 56 would accrue to him when the entry was made in the register by the Register in the year 1984. The learned counsel appearing for the petitioner, however, submits that right to apply under section 56 of The Trade and Merchandise Marks Act would accrue to the petitioner when he came to know of the entry made of the respondent No. 1's trade mark and not on the date when the entry was actually made. Even assuming that the learned counsel for the petitioner is right in submitting that his right to apply under section 56 would accrue to him when he came to know of the entry made by the Registrar and that the period of limitation will have to be computed from the date of the knowledge. The facts that are required to be disclosed for decision of this claim are (a) that the petitioner was not aware of the entry made on the date when the entry was made and (b) that he for the first time came to know of the entry at a subsequent point of time. The petitioner will have to state the exact date and time when he came to know of the entry made. Perusal of the petition shows that there is no claim made in the petition that the petitioner was not aware of the entry made either on the date when the entry was made. It is also not claimed that the petitioner became aware of the entry or that the entry was brought to his knowledge at any subsequent point of time. The learned counsel for the petitioner submits that the petitioner has sought leave of this Court to refer to and rely on the papers of the civil suit that the petitioner had filed in Delhi High Court and in the plaint filed in Delhi High Court, such averments have been made in my opinion, this will not comply with the requirements of making specific averments in this petition. In this petition, in order to claim that the starting point of limitation would be some other date than the date of entry in the register, the petitioner will have to make that claim first and then he can rely on document in support of that claim. In the present petition, that claim itself is absent. In my opinion, therefore, the petitioner cannot succeed in establishing, that his petition has been filed within the period of limitation provided by law.
6. This matter was heard by me at length on 17th January, 2002 and I had indicated to the learned counsel appearing for the petitioner that I am going to dismiss the petition as barred by the law of limitation and I was on the point of dictating my order. At that time, the learned counsel for the petitioner interrupted me and requested for an adjournment by saying that he should be given one week's time to withdraw the petition. Therefore, the matter was fixed on board for withdrawal. Today, the learned counsel for the petitioner stated that he is not withdrawing the petition and instead, I should dispose of the petition on merits, with the result I had to again hear the petition at length for considerable time. I find the course of action adopted by the petitioner odd, that has resulted in wasting Court's time.
7. In my opinion, therefore, in order to discourage such tendency, while dismissing this petition, exemplary costs have to be imposed. On 17th January, 2002, while seeking an adjournment when the matter was fully argued and heard, an impression was given to the Court that the petition would be withdrawn and the Court will not be required to pass orders on merits. The course of action adopted by the petitioner, in my opinion, is unfair to the Court as also to the public. The petition is therefore dismissed with costs. The costs is quantified at Rs. 25,000/-.
8. Parties to act on the copy of this duly authenticated by the Associate/Personal Secretary as true copy.