Secretary, Minor Irrigation & Rural ... vs Sahngoo Ram Arya And Anr. on 7 May, 2002
41.
Learned Advocate Mr. Tolia has vehemently emphasized by relying upon
section 95 of the Act that immediate interim relief is not available
because appellate board must have to hear other side after supplying
copy of appeal and interim relief application to other side and,
therefore, it is very difficult for petitioner to get immediate
interim order ex parte from appellate board. For that, learned
Senior Advocate Mr. Joshi has emphasized negligence on the part of
petitioner or lapse or deliberate delay or conduct on the part of
petitioner as such which otherwise also disentitle petitioner from
interim relief immediately either from this Court or from appellate
board under section 95 of the Act. Order in question has been passed
by Deputy Registrar of Trade Marks on 17.5.2010. This order has not
been received by petitioner as per his contention, therefore, on
24.6.2010, documents and copy of order were demanded by petitioner
from Registrar of Trade Marks after making payments. So, application
was made on 24.6.2010 and documents including order in question were
supplied to petitioner on 21.7.2010 and thereafter affidavit has
been affirmed on 25.7.2010 and matter was filed in Registry of this
Court on 16.8.2010 and thereafter, it came to be circulated before
this Court for admission on 30.8.2010 and, therefore, considering
these factual aspects of delay, which
are not in dispute between the parties, mere ex parte order is not
to be passed by Appellate Board as per conditions incorporated in
section 95 of the Act, that cannot give right to petitioner to
directly approach this Court by way of this writ petition under
Article 226 of Constitution of India. This aspect has been examined
by apex court in case of Secretary,
Minor Irrigation and Rural Engineering Services, UP and others
versus Sahngoo Ram Arya and another, 2002 SCC (L&S) 775.
Relevant observations made in para 11 and 12 are quoted as under: