Cross-objections survive dismissal on limitation, and a trade mark dispute may be remitted for fresh evidence on genuineness and proprietorship.

Dismissal of an earlier appeal on limitation, without any adjudication on merits, did not create merger of the Registrar's order and did not bar cross-objections under Order 41 Rule 22 CPC. The respondent's cross-objections therefore remained maintainable and could be pursued when the main appeal was heard. The trade mark dispute was also remitted for de novo consideration because the party had not received a full to adduce evidence on the genuineness of the document, proprietorship, user, and the public policy objection. Fresh decision was directed on the whole evidence before the Registrar.

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Issues: (i) whether the respondent's cross-objections were maintainable notwithstanding the dismissal of his earlier appeal on limitation without adjudication on merits; (ii) whether the matter should be remitted to the Registrar for fresh consideration with opportunity to lead further evidence on the genuineness of the document, proprietorship, user, and the effect of public policy.

Issue (i): Whether the respondent's cross-objections were maintainable notwithstanding the dismissal of his earlier appeal on limitation without adjudication on merits.

Analysis: The right of appeal under the Trade Marks Act was held to be distinct from the remedy by which it is exercised. The application of the Civil Procedure Code to High Court appeals under the Act meant that Order 41, Rule 22 governed cross-objections. The dismissal of the earlier appeal for limitation did not amount to a judicial determination on merits, so there was no merger of the Registrar's order into the appellate order. In the absence of a merits decision, the respondent's right to cross-object survived and could be pursued when the main appeal came up.

Conclusion: The cross-objections were maintainable and the contrary view was wrong.

Issue (ii): Whether the matter should be remitted to the Registrar for fresh consideration with opportunity to lead further evidence on the genuineness of the document, proprietorship, user, and the effect of public policy.

Analysis: Under the Trade Marks Act and the rules, disputed questions were ordinarily to be decided on affidavit, though the Registrar had discretion to permit oral evidence. The respondent had not been given a full opportunity to adduce all evidence on the authenticity of the document, and the issue was material to the registration dispute. A complete rehearing before the Registrar was therefore appropriate, including reconsideration of the evidence, the claim to proprietorship and user, and the objection based on public policy.

Conclusion: The matter was remitted to the Registrar for de novo consideration with liberty to lead evidence.

Final Conclusion: The appeal succeeded to the extent that the cross-objections were held maintainable, but the registration dispute was sent back for fresh decision by the Registrar on the whole evidence.

Ratio Decidendi: An appeal dismissed on a preliminary ground such as limitation does not effect a merger or bar cross-objections under Order 41, Rule 22 of the Civil Procedure Code, 1908, because only a judicial determination on merits extinguishes that right.

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