Amendments of review application:
The amendments of application for review may not be allowed except in very special cases. If the effect of allowing the amendment would be to take away from the respondents the defence of limitation of time, if any, prescribed under the rules it would unjustly prejudice their rights and amendment should not be allowed.
If the decision sought to be reviewed concerns any other person, such application and statement should be made in triplicate and registrar will transmit a copy of each of such documents to the person concerned. The registrar will give an opportunity of hearing to the parties, and either allow or reject the application.
Amendments of the pleadings:
All amendments of the pleadings should be allowed of which are necessary for the determination of the real questions in a controversy between the parties in the suit, provided the proposed amendments does not alter or substitute a new cause of action.
Correction of errors:
The act provides for a review of a decision or order only on an application made in the prescribed manner and there is no provision for correction of errors or obvious mistakes in the act or the rules as such. Accordingly, the registrar follows the principles contained in section 152 of the code of civil procedure as follows:
“Clerical or arithmetical mistakes in judgements, decrees or orders or errors arising therein from any accidental slop or omission may, at any time, be corrected by the court either on its own motion or on the application of any of the parties”.
Thus, on the discovery of an error, the registrar initiates the motion for correction by giving notice to parties.
The appellate board, the expert body to hear appeals from the registrar has laid down, that review is permitted only to correct an error apparent on the face of the record. If such an error is to be found out by a process of reasoning, then the review cannot be made. The review is by no means an appeal in disguise whereby an erroneous decision is reheard and corrected, but a review lies only for correction of factual error. The board observed:
“We are of the view that the deputy registrar had set aside the earlier order under the guise of a review that too without referring to any fresh material produced by the appellant but taking a different view from the earlier one. The deputy registrar is not correct in reviewing the earlier order to take a different view from the earlier one and set aside the same and thereby passing a totally new order with different reasons. The deputy registrar has assumed the jurisdiction of the appellate authority instead of discharging his functions as the original authority limiting the jurisdiction of the power of review.
Control on exercise of discretionary power:
Section 128 enacts that the registrar shall not exercise any discretionary or other power vested in him by the act or the rules without giving to that person an opportunity of being heard, thus incorporating the principle of natural justice. Section 128 is circumscribed by the provisions of section 131 relating to grant of extension of time for which the law provides that the registrar is not bound to hear the parties before disposing off an application for extension of time.
Principles of natural justice to be compiled with:
The registrar of trademarks while discharging his duties often performs is quasi-judicial function. Even if he is discharging only an administrative function the principle of natural justice will have to be complied with.
If the registrar, to whom in the first instance is committed the discretionary power, has exercised his discretion in good faith and not in violation of any law, such exercise of discretion should not be interfered with by the high court merely on the ground that, in the opinion of the high court, it could have been exercised differently or even that the high court would have exercised it differently, had the matter been brought before it in the first instance.
The supreme court went on to say that the exercise of the power conferred on the registrar by this section always remained a matter of discretion to be exercised, not capriciously or arbitrarily but, according to sound principles laid down for the exercise of all judicial discretion.
Court’s power to supervise:
Where the registrar has exercised his discretion in the matter, the court would be slow to interfere, yet the court while determining the weight to be attached to the registrar’s view, must exercise its own mind upon the solution of the problem under consideration. The registrar’s decision in exercise of his discretion does not relieve the court of its own individual responsibility. His discretion like the discretion of everybody else is liable to be controlled by the superior tribunal. Like all discretions the registrar’s discretion must be judicially exercised and such an exercise of discretion is subject to review on the grounds which are well understood.
The registrar’s discretion is a judicial discretion and must be exercised on reasonable grounds and not capriciously or arbitrarily. It must be based on some principles laid down for the exercise of all judicial discretion, but should not be affected by over-caution. Though the registrar in exercising his discretion is not limited by any particular type of consideration, the grounds on which he exercises the discretion must be capable of being clearly stated.
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