Case Note & Summary
The petitioners, original respondent nos.2 and 3, filed a Review Petition against an order dated 29th April 2011 passed by a Single Judge in Writ Petition No.364 of 2011. The writ petition had been filed challenging an order dated 16th July 2010 of the Intellectual Property Appellate Board (IPAB) under the Trade Marks Act, 1999. The Single Judge had allowed the writ petition in terms of prayer clause (a). The review petition was filed on 15th October 2012, with a delay of about 474 days, and was accompanied by a Notice of Motion seeking condonation of delay. The court examined Rule 636 of the Bombay High Court Original Side Rules, 1980, which categorizes writ petitions under Article 226 of the Constitution. Sub-rule (1)(a) lists specific statutes for which a Single Judge can hear the petition, and the Trade Marks Act, 1999 is not included. Sub-rule (1)(b) provides that all other applications under Article 226 shall be heard by a Division Bench. The court held that the order passed by the Single Judge was without jurisdiction, as the petition ought to have been heard by a Division Bench. Consequently, the order was a nullity and could not be reviewed. The review petition was dismissed, and the notice of motion for condonation of delay was dismissed as infructuous. The court also noted that the issue of delay was academic given the lack of jurisdiction.
Headnote
A) Civil Procedure - Review Petition - Inherent Lack of Jurisdiction - Order passed by Single Judge in writ petition challenging IPAB order under Trade Marks Act, 1999 is without jurisdiction as per Rule 636 of Bombay High Court Original Side Rules, 1980, which mandates such matters to be heard by a Division Bench. The review petition is dismissed as the original order is a nullity and cannot be reviewed. (Paras 4-6)
B) Limitation - Condonation of Delay - Delay of 474 days in filing review petition - Since the original order is without jurisdiction, the question of delay becomes academic and the notice of motion for condonation of delay is dismissed as infructuous. (Paras 3, 6)
Issue of Consideration
Whether the order dated 29th April 2011 passed by a Single Judge in Writ Petition No.364 of 2011 under Article 226 of the Constitution challenging an order of the Intellectual Property Appellate Board under the Trade Marks Act, 1999 was without jurisdiction, as such petitions are required to be heard by a Division Bench under Rule 636 of the Bombay High Court Original Side Rules, 1980.
Final Decision
The Review Petition is dismissed. The Notice of Motion No.364 of 2012 for condonation of delay is dismissed as infructuous. The order dated 29th April 2011 passed by the Single Judge in Writ Petition No.364 of 2011 is held to be without jurisdiction and a nullity. No order as to costs.
Law Points
- Jurisdiction
- Single Judge
- Division Bench
- Rule 636
- Bombay High Court Original Side Rules
- 1980
- Trade Marks Act
- 1999
- Review Petition
- Delay
- Condonation of Delay
- Inherent Lack of Jurisdiction
Case Details
2012 LawText (BOM) (10) 126
Review Petition Lodging No.74 of 2012 with Notice of Motion No.364 of 2012 in Writ Petition No.364 of 2011
Mr. S. Shamim i/b. Shamim & co. for Petitioners in Review Petition and original respondents; Mr. Mayur Khandeparkar with Mr. Ashish Rao i/b. M & M Legal Ventures for Respondents in Review Petition and original petitioners.
M/s. Lakh Enterprises and anr.
M/s. Agar Distributors (India) and ors.
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Nature of Litigation
Review Petition against an order passed by a Single Judge in a Writ Petition under Article 226 of the Constitution challenging an order of the Intellectual Property Appellate Board under the Trade Marks Act, 1999.
Remedy Sought
The petitioners (original respondent nos.2 and 3) sought to set aside the judgment dated 29th April 2011 passed in Writ Petition No.364 of 2011.
Filing Reason
The petitioners contended that the order passed by the Single Judge was without jurisdiction as the writ petition ought to have been heard by a Division Bench under Rule 636 of the Bombay High Court Original Side Rules, 1980.
Previous Decisions
The Writ Petition No.364 of 2011 was allowed by a Single Judge on 29th April 2011, setting aside the order of the Intellectual Property Appellate Board dated 16th July 2010.
Issues
Whether the order dated 29th April 2011 passed by a Single Judge in Writ Petition No.364 of 2011 was without jurisdiction, as the petition challenging an order of the Intellectual Property Appellate Board under the Trade Marks Act, 1999 ought to have been heard by a Division Bench under Rule 636 of the Bombay High Court Original Side Rules, 1980.
Whether the delay of 474 days in filing the Review Petition should be condoned.
Submissions/Arguments
The petitioners argued that the order of the Single Judge was without jurisdiction because Rule 636 of the Bombay High Court Original Side Rules, 1980 mandates that writ petitions under Article 226 challenging orders under the Trade Marks Act, 1999 must be heard by a Division Bench, as the Act is not listed in sub-rule (1)(a).
The respondents opposed the review petition, but the court did not detail their specific arguments.
Ratio Decidendi
An order passed by a Single Judge in a writ petition under Article 226 of the Constitution challenging an order of the Intellectual Property Appellate Board under the Trade Marks Act, 1999 is without jurisdiction because Rule 636 of the Bombay High Court Original Side Rules, 1980 requires such petitions to be heard by a Division Bench. An order passed without jurisdiction is a nullity and cannot be reviewed. The question of delay becomes academic in such circumstances.
Judgment Excerpts
The order dated 29th April 2011 passed by the Single Judge in Writ Petition No.364 of 2011 is without jurisdiction.
The order is a nullity and cannot be reviewed.
The question of delay becomes academic.
Procedural History
The Intellectual Property Appellate Board passed an order on 16th July 2010 under the Trade Marks Act, 1999. Aggrieved, the original petitioners filed Writ Petition No.364 of 2011 under Article 226 of the Constitution before the Bombay High Court. The writ petition was heard and allowed by a Single Judge on 29th April 2011. On 15th October 2012, the original respondent nos.2 and 3 filed Review Petition Lodging No.74 of 2012 along with Notice of Motion No.364 of 2012 seeking condonation of delay of 474 days. The review petition was heard and dismissed on 29th October 2012 on the ground that the Single Judge lacked jurisdiction to hear the writ petition.
Acts & Sections
- Trade Marks Act, 1999:
- Bombay High Court Original Side Rules, 1980: Rule 636
- Constitution of India: Article 226
