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The Deputy Registrar accordingly was of the view-that the respondents could not be said to be "persons aggrieved" in so far as the alleged misdescription of the petitioner's device was concerned. As stated earlier, however, the Deputy Registrar was of the view that they could be said to be "persons aggrieved" only in so far as the petitioner's trade mark No. 131148 was alleged to resemble the respondents' trade marks No. 504 and 132940 in their application for rectification, but that they were estopped by their conduct from ursine that the were "persons aggrieved" within the meaning of Section 56 of the Act in so far as the alleged resemblance between the two trade marks was concerned. On merits, the Deputy Registrar held that the respondents had failed to prove prior user of their trade mark which formed the basis of their application for rectification and that consequently, they were not entitled to rectification of the register on the ground of the alleged deceptive resemblance between their registered trade marks No. 504 and 132940 and the registered proprietor's trade mark. No. 131148. The Deputy Registrar in this connection observed that if the user of their aforesaid trade marks had started from a date prior to the date of commencement of user by the registered Proprietor of his trade mark No. 131148, the latter would be entitled to remain on the register on the ground of honest concurrent user under Section 12 (3), of the Trade and Merchandise Marks Act, 1958, On the question as to whether the device on the, petitioner's trade mark No. 131148 was that of lion, the Deputy Registrar came to the conclusion that the device did not represent a lion but it resembled the device of a St. Bernard dog or a Tibetan Mastiff or a Himalayan dog. In view of his finding that the respondents were not entitled to rectification of the register on either of the two grounds stated in their application for rectification, it was not really necessary for the Deputy Registrar to determine as to whether there was any resemblance between the device appearing in the trade mark No. 131148 and the one appearing in the respondents' trade marks. Having, however, held that the device in the petitioner's trade mart was that of a St. Bernard dog or a Tibetan Mastiff or a Himalayan dog, the Deputy Registrar proceeded on his own to consider as to whether the description of the device in the petitioner's trade mark as a "Bull Dog" was correct, and finding that the said device did not represent a "Bull DOG" in the true Sense of the term, but either represented a St Bernard dog, or a Tibetan Mastiff or a Himalayan dog, he proceeded to make an order in the name of purity of the register and in the interest of the public, that the word "Bull" from the caption "Bull Dog" be deleted and that the register of trade marks be rectified accordingly. It is against this order that the petitioner has filed the present petition by way of an appeal in this Court.

9. I have already observed in the earlier part of this judgment that in view of the finding arrived at by the Deputy Registrar of Trade Marks that the respondents by their conduct were not "persons aggrieved" and, therefore, could not obtain any relief on either of the grounds mentioned in the application, it was unnecessary for him to go into the question as to whether there was any similarity between the device in the petitioner's trade mark and the device in those of the respondents. The Deputy Registrar, however, in the name of public interest and purity of the register of trade marks went into this question quite at length and came to the conclusion that there was no similarity between the two devices at all. With this conclusion the Deputy Registrar should have really dismissed the respondents' application for rectification, but again, in the name of public interest and purity of the register of trade marks, he went into the question as to whether the Register required any rectification by reason of the misdescription of the animal on the petitioner's trade mark. Relying upon certain statements of law in Kerly on Trade Marks the Deputy Registrar thought that even in such matters the question of rectification of the Register was not one between the respondents for rectification on the one hand and the Registered proprietor on the other, and holding that the description of the device in the petitioner's trade mark was inaccurate, he ordered the deletion of the word "Bull" from the caption "Bull Dog" appearing in the device.

This statement of the law makes it clear that it is not in all cases that the Tribunal has jurisdiction to rectify the register on any ground it pleases apart from the grounds stated by the applicant for the rectification of the register in his application. It is only in cases where a mark in its very nature is incapable of registration under the Act that the tribunal has jurisdiction to rectify the register and expunge the offending entry from the register, and it is in this connection that the demerits of the applicant are said to be irrelevant to the question whether rectification should be ordered or not, and it is again in this connection that the question would not be one between the applicant on the one hand and the respondent on the other, but between the public and the respondent. It was, however, urged by Mr. Baptis'a on behalf of the Registrar that despite what Kerly might have stated in the aforesaid paragraphs of his Treatise, all necessary rectifications should be made in the register of trade marks whenever the Registrar in course of any proceedings before him for rectification of the Register comes across circumstances in which such rectifications are called for in his view in as much as the purity of the Register of Trade Marks has got to be maintained at any cost. Now as regards this purity of the Register Kerly has again at page 183 of his Treatise stated as follows under the heading "Purity of the Register".

These observations are undoubtedly made in regard to the question as to whether it was necessary for the applicants in that case to show that they were "persons aggrieved" before being entitled to make an application for rectification of the Register. They, however, do indicate the circumstances in which the Court suo motu would order expungement of an entry from the Register of Trade Marks namely, where a trade mark, as already stated, was incapable, in its very nature, of registration under the Act, or where the registration has been illegal or improper. In no other case would the Court exercise its jurisdiction to interfere with the registration of a trade mark by way of expunging or varying the entry in that behalf. In all other cases, however, the person making the application for rectification of the Register has to state and substantiate the grounds on which he seeks the rectification of the Register in respect of any particular trade mark, besides showing that he is a "person aggrieved" within the meaning of the section. In the Lever Bros' case, ((1949) 66 RPC 84) the Court refused to take cognisance of the entries, though impeachable by reason of non-use in respect of certain trade mark, in the interests of the purity of the Register, because they were neither illegal nor improper. From these authorities, it will by clear that where a trade mark is not inherently incapable of registration or where the entry on the Register is not illegal or improper in the sense that it contravenes any of the provisions of the Act. the Court or the Registrar under Subsection (2) of Section 56 of our Act would have no jurisdiction whatever to exercise the power of rectification except on the ground and in the manner urged by the applicant being a "person aggrieved" in his application for rectification. In order, however, to show that the obligation to maintain the purity of the Register is of a much wider character than what has been pointed out by Kerly in the passage, aforesaid and by Romer, J. in the case cited above, Mr. BapHsta relied upon the observations of Chagla C. J. in . The learned Chief Justice quoted Section 46 of the Trade Marks Act, 1940 and also Section 10(1) of the said Act and then proceeded to observe as follows :