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service matter = The doctrine of waiver was also invoked in Vijendra Kumar Verma v. Public Service Commission, Uttarakhand and others (2011) 1 SCC 150 and it was held: “When the list of successful candidates in the written examination was published in such notification itself, it was also made clear that the knowledge of the candidates with regard to basic knowledge of computer operation would be tested at the time of interview for which knowledge of Microsoft Operating System and Microsoft Office operation would be essential. In the call letter also which was sent to the appellant at the time of calling him for interview, the aforesaid criteria was reiterated and spelt out. Therefore, no minimum benchmark or a new procedure was ever introduced during the midstream of the selection process. All the candidates knew the requirements of the selection process and were also fully aware that they must possess the basic knowledge of computer operation meaning thereby Microsoft Operating System and Microsoft Office operation. Knowing the said criteria, the appellant also appeared in the interview, faced the questions from the expert of computer application and has taken a chance and opportunity therein without any protest at any stage and now cannot turn back to state that the aforesaid procedure adopted was wrong and without jurisdiction.” having taken part in the process of selection with full knowledge that the recruitment was being made under the General Rules, the respondents had waived their right to question the advertisement or the methodology adopted by the Board for making selection and the learned Single Judge and the Division Bench of the High Court committed grave error by entertaining the grievance made by the respondents. We are also prima facie of the view that the learned Single Judge committed an error by holding that despite the non obstante clause contained in Rule 2 of the General Rules, the Special Rules would govern recruitment to the post of Physiotherapist. However, we do not consider it necessary to express any conclusive opinion on this issue and leave the question to be decided in an appropriate case. 26. In the result, the appeals are allowed, the impugned orders as also the one passed by the learned Single Judge are set aside and the writ petition filed by the private respondents is dismissed. Parties are left to bear their own costs.

Page 1 REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NOS. 2802-2804 OF 2013 (Arising out of SLP(C) Nos. 30581-30583 of 2012) Ramesh Chandra Shah and others … Appellants versus Anil Joshi and others … Respondents J U D G M E N T G.S. SINGHVI, J. 1. Leave granted. 2. In … Continue reading

But if the presence of the complainant on that date was quite unnecessary, then resorting to the step of axing down the complaint may not be proper exercise of power envisaged in the Section. The discretion must, therefore, be exercised judicially and fairly without impairing the cause of administration of criminal justice.”= “256. Non-appearance or death of complainant. (1) If the summons has been issued on complaint, and on the day appointed for the appearance of the accused, or any day subsequent thereto to which the hearing may be adjourned, the complainant does not appear, the Magistrate shall, notwithstanding anything hereinbefore contained, acquit the accused, unless for some reason he thinks it proper to adjourn the hearing of the case to some other day: Provided that where the complainant is represented by a pleader or by the officer conducting the prosecution or where the Magistrate is of opinion that the personal attendance of the complainant is not necessary, the Magistrate may dispense with his attendance and proceed with the case. (2) The provisions of sub-section (1) shall, so far as may be, apply also to cases where the non-appearance of the complainant is due to his death. ” Considering the above decision along with Section 256 Cr.P.C., it is a discretion of the Magistrate to adjourn the matter or dispose of the matter, the Magistrate has to exercise his discretion judicially. Since it is a matrimonial dispute and the complainant is residing away from her matrimonial home, the learned Magistrate has to give one more opportunity to put forth her case. But the discretion exercised by the learned Metropolitan Magistrate is not legally sustainable. But however, the matter is pending in the matrimonial Court (i.e.) Sub-Court Tambaram in respect of divorce petition filed by the husband under Section 13(1)(i)(a) of the Hindu Marriage Act. Considering the gravity of the complaint and relationship between both sides, I am of the view, the order passed by the learned XV Metropolitan Magistrate is liable to be set aside and hence, it is hereby set aside.

IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:25.06.2012 CORAM: THE HONOURABLE MS. JUSTICE R. MALA Criminal Appeal No.709 of 2010 K.Niranjani .. Appellant/Complainant v. 1.R.T.Dinesh 2.R.T.Giri 3.T.Amsa .. Respondents Prayer:Criminal appeal filed under Section 378 of Cr.P.C., against the judgment dated 19.10.2010, in M.P.No.5872 of 2010 in D.V.C.No.1 of 2010, on the file of … Continue reading

16. Power of Controller to make orders respecting division of application.– A person who has made an application for a patent under this Act may, at any time before the grant of the patent, if he so desires, or with a view to remedy the objection raised by the Controller on the ground that the claims of the complete specification relate to more than one invention, file a further application in respect of an invention disclosed in the provisional or complete specification already filed in respect of the first mentioned application. (2) The further application under sub-S. (1) shall be accompanied by a complete specification, but such complete specification shall not include any matter not in substance disclosed in the complete specification filed in pursuance of the first mentioned application. (3) The Controller may require such amendment of the complete specification filed in pursuance of either the original or the further application as may be necessary to ensure that neither of the said complete specifications includes a claim for any matter claimed in the other. Explanation.– For the purposes of this Act, the further application and the complete specification accompanying it shall be deemed to have been filed on the date on which the first mentioned application had been filed, and the further application shall be proceeded with as a substantive application and be examined when the request for examination is filed within the prescribed period.

INTELLECTUAL PROPERTY APPELLATE BOARD Guna Complex, Annexe-I, 2nd Floor, 443, Anna Salai, Teynampet, Chennai – 600 018   (CIRCUIT BENCH SITTING AT DELHI)   OA/18/2009/PT/DEL MONDAY  THIS, THE 29th DAY OF OCTOBER,  2012 HON’BLE SMT. JUSTICE PRABHA SRIDEVAN   —  CHAIRMAN HON’BLE SHRI D.P.S. PARMAR                            —  TECHNICAL MEMBER BAYER ANIMAL HEALTH GMBH                          —       Appellants D-51368,  LEVERKUSEN … Continue reading

The competent authority in the present case, issued a caste certificate dated 19.10.1989, after following due procedure, in favour of the appellant stating that he does in fact, belong to Bhil Tadvi (Scheduled Tribes). On the basis of the said certificate, the appellant was appointed as Senior Clerk in the Municipal Corporation of Aurangabad (hereinafter referred to as the, ‘Corporation’) on 6.2.1990, against the vacancy reserved for persons under the Scheduled Tribes category. = Section 114 Ill.(e) of the Evidence Act provided for the court to pronounce that the decision taken by the Scrutiny Committee has been done in regular course and the caste certificate has been issued after due verification. A very strong material/evidence is required to rebut the presumption = “We must now deal with the question of locus standi. A special leave petition ordinarily would not have been entertained at the instance of the appellant. Validity of appointment or otherwise on the basis of a caste certificate granted by a committee is ordinarily a matter between the employer and the employee. This Court, however, when a question is raised, can take cognizance of a matter of such grave importance suo motu. It may not treat the special leave petition as a public interest litigation, but, as a public law litigation. It is, in a proceeding of that nature, permissible for the court to make a detailed enquiry with regard to the broader aspects of the matter although it was initiated at the instance of a person having a private interest. A deeper scrutiny can be made so as to enable the court to find out as to whether a party to a lis is guilty of commission of fraud on the Constitution. If such an enquiry subserves the greater public interest and has a far- reaching effect on the society, in our opinion, this Court will not shirk its responsibilities from doing so.” = Affidavit – whether evidence within the meaning of Section 3 of the Evidence Act, 1872: It is a settled legal proposition that an affidavit is not evidence within the meaning of Section 3 of the Indian Evidence Act, 1872 (hereinafter referred to as the ‘Evidence Act’). Affidavits are therefore, not included within the purview of the definition of “evidence” as has been given in Section 3 of the Evidence Act, and the same can be used as “evidence” only if, for sufficient reasons, the Court passes an order under Order XIX of the Code of Civil Procedure, 1908 (hereinafter referred to as the ‘CPC’). Thus, the filing of an affidavit of one’s own statement, in one’s own favour, cannot be regarded as sufficient evidence for any Court or Tribunal, on the basis of which it can come to a conclusion as regards a particular fact-situation. (Vide: Sudha Devi v. M.P. Narayanan & Ors., AIR 1988 SC 1381; and Range Forest Officer v. S.T. Hadimani, AIR 2002 SC 1147).

REPORTABLE IN THE SUPREMECOURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 7728 OF 2012   Ayaaubkhan Noorkhan Pathan … Appellant Versus The State of Maharashtra & Ors. … Respondents     J U D G M E N T DR. B.S. CHAUHAN, J.:   1. This appeal has been preferred against the impugned judgment … Continue reading

Section 52 opposition: amendment to Notice of Opposition considered and allowed – ss 58, 44 and 60 considered – Applicant’s claim to ownership not displaced – Trade Mark not deceptively similar to Opponent’s trade mark – reputation of Opponent’s trade mark not shown – opposition not established. Costs awarded against the Opponent. = The Applicant has “[s]ince around March 2007…been a rice importer and trader in Australia”. He says that he “created” the Trade Mark in around February 2008 and that in around May that year he “began using [it] in partnership with Liberty Impex [Pty Ltd]”, a company that he and a Mr Mohammed Moten had incorporated on 20 May 2008, “in connection with rice and the supply of rice in Australia”. He says he had a verbal agreement with Mr Moten at the time to license the company to use the Trade Mark and that, “It was always understood by [the company and Mr Moten] that I was the sole owner of the Trade Mark and that neither [the company nor Mr Moten] had any rights in [it] other than those under licence from me”. – Section 60 of the Act is reproduced below: Trade mark similar to trade mark that has acquired a reputation in Australia 60. The registration of a trade mark in respect of particular goods or services may be opposed on the ground that: (a) another trade mark had, before the priority date for the registration of the first-mentioned trade mark in respect of those goods or services, acquired a reputation in Australia; and (b) because of the reputation of that other trade mark, the use of the first-mentioned trade mark would be likely to deceive or cause confusion.

DECISION OF A DELEGATE OF THE REGISTRAR OF TRADE MARKS WITH REASONS Re: Opposition by Taj Food Sales Pty Ltd to registration of trade mark application 1313229 (30, 35) – GRAND TIGER Label – in the name of Gerson Rangel DELEGATE: Michael Kirov REPRESENTATION: Opponent: Carmen Champion of Counsel, instructed by Matthews Folbigg Lawyers Applicant: Matthew Hall, Legal Practitioner, … Continue reading

‘rule of seniority’- On being selected by the District Level Committee which had considered the candidature of those sponsored by the Employment Exchanges, respondent Nos.1 to 13 were appointed as Masters in the subjects of Science, Maths and Social Studies, respondent No.14 was appointed as Physical Training Instructor and respondent No.15 was appointed as Hindi Teacher purely on ad hoc basis between 1994 and 1996 by the District Education Officers.- None of the aforesaid judgments can be read as laying down a proposition of law that a person who is appointed on purely ad hoc basis for a fixed period by an authority other than the one who is competent to make regular appointment to the service and such appointment is not made by the specified recruiting agency is entitled to have his ad hoc service counted for the purpose of fixation of seniority. Therefore, the respondents, who were appointed as Masters in different subjects, Physical Training Instructor and Hindi Teacher on purely ad hoc basis without following the procedure prescribed under the 1955 Rules are not entitled to have their seniority fixed on the basis of total length of service. As a corollary to this, we hold that the direction given by the High Court for refixation of the respondents’ seniority by counting the ad hoc service cannot be approved. 25. In the result, the appeal is allowed, the impugned order is set aside and the writ petition filed by the respondents is dismissed. The parties are left to bear their own costs.

REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 5947 OF 2012 (Arising out of SLP (C) No. 29274 of 2009) State of Haryana and others … Appellants Versus Vijay Singh and others … Respondents   J U D G M E N T G. S. Singhvi, J. 1. Leave granted. … Continue reading

whether the respondents are legally obliged to pay the interest, penal interest and penalty on account of the delayed payment of installments after having accepted the allotment of commercial plots by way of auction.- “19. …………In a public auction of sites, the position is completely different. A person interested can inspect the sites offered and choose the site which he wants to acquire and participate in the auction only in regard to such site. Before bidding in the auction, he knows or is in a position to ascertain, the condition and situation of the site. He knows about the existence or lack of amenities. The auction is on `as is where is basis’. With such knowledge, he participates in the auction and offers a particular bid. There is no compulsion that he should offer a particular price. 20. Where there is a public auction without assuring any specific or particular amenities, and the prospective purchaser/lessee participates in the auction after having an opportunity of examining the site, the bid in the auction is made keeping in view the existing situation, position and condition of the site. If all amenities are available, he would offer a higher amount. If there are no amenities, or if the site suffers from any disadvantages, he would offer a lesser amount, or may not participate in the auction. Once with open eyes, a person participates in an auction, he cannot thereafter be heard to say that he would not pay the balance of the price/premium or the stipulated interest on the delayed payment, or the ground rent, on the ground that the site suffers from certain disadvantages or on the ground that amenities are not provided.”

REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 5887 OF 2012 @ SPECIAL LEAVE PETITION (CIVIL) NO. 8734 OF 2009 Punjab Urban Planning & Dev. Authority & Ors. … Appellants Versus Raghu Nath Gupta & Ors. … Respondents WITH CIVIL APPEAL NO. 5888 OF 2012 @ SPECIAL LEAVE PETITION (CIVIL) … Continue reading

INTELLECTUAL PROPERTY – whether appellant’s copyright in building plan for project home infringed by respondents – where opportunity for access established – where striking similarities between copyright work and putative infringement – whether requirement of causal connection between copyright work and putative infringement satisfied – whether inference of copying should be drawn – whether onus of proof shifted to respondents – whether proven or admitted facts not explained justified drawing inference of copying – significance of expert evidence concerning similarities in project home designs – significance of appellant’s delay in commencing proceedings against respondents – whether refusal of primary judge to draw inference of copying open on the evidence – decision of primary judge open on the evidence and not shown to be wrong – appeal dismissed.

Ron Englehart Pty Ltd v Enterprise Constructions (Aust) Pty Ltd [2012] FCAFC 4 (17 February 2012) Last Updated: 17 February 2012 FEDERAL COURT OF AUSTRALIA   Ron Englehart Pty Ltd v Enterprise Constructions (Aust) Pty Ltd [2012] FCAFC 4   Citation: Ron Englehart Pty Ltd v Enterprise Constructions (Aust) Pty Ltd [2012] FCAFC 4 Appeal … Continue reading

TORT – appeal concerning claim for damages for tort of inducing or procuring breach of contract – where appellant had contractual rights with respect to moulds from which third-party manufacturer produced automotive LED lamps – where manufacturer contractually prohibited from selling or manufacturing lamps made from moulds into Australia or New Zealand – where respondents entered into commercial contract with manufacturer to produce automotive LED lamps – whether respondents induced or procured breach of contract by manufacturer of its contract with the appellant – whether “reckless indifference” or “wilful blindness” to breach by manufacturer sufficient to establish mental element of tort of inducing or procuring breach of contract – whether failure of respondent to make reasonable enquiries amounted to wilful blindness. Held: The appeal should be dismissed. INTELLECTUAL PROPERTY – appeal concerning application for infringement under Designs Act 2003 (Cth) – cross-claim for invalidity of registered designs under the Act – meaning of term “informed user” for purposes of the Act – where alleged similarities between registered designs and respondent’s product were features in common with prior art – whether registered design of appellant was “new and distinctive” so as to be valid under the Act – whether design embodied in respondents’ product was “substantially similar in overall impression” to registered designs of appellant – whether trial judge placed disproportionate weight on differences allegedly invisible when in situ. Held: The appeal and cross-appeal should be dismissed.

LED Technologies Pty Ltd v Roadvision Pty Ltd [2012] FCAFC 3 (10 February 2012) Last Updated: 10 February 2012 FEDERAL COURT OF AUSTRALIA   LED Technologies Pty Ltd v Roadvision Pty Ltd [2012] FCAFC 3   Citation: LED Technologies Pty Ltd v Roadvision Pty Ltd [2012] FCAFC 3 Appeal from: LED Technologies Pty Ltd v … Continue reading

CRYSTAL”-Application for removal of the trade mark “CRYSTAL” registered under No.1213531 in Class 23 under the provisions of the Trade Marks Act, 1999 (‘Act’ in short= application has been filed on 11.07.2003 claiming user since 16.03.1998. The respondents have not filed their counter statement denying the applicants use nor have they filed any evidence of their user at least since 1998. The respondent’s trade mark is neither distinctive nor capable of being distinguished and therefore is in contravention of the provisions of Section 9 of the Act. The respondent has obtained registration in bad faith. The respondent has not used the trade mark and the mark therefore deserves to be removed for non-use.The main ground of the rectification petition is that the respondents have not used the trade mark after registration. The respondents are aware of the proceedings and had in fact filed their reply to the Miscellaneous Petition No.61 of 2010 for substituted service. The respondents probably are not using the trade mark and that could be the reason for them not filing their counter statement as well for their non appearance. 14. The applicant’s trade mark “CRYSTAL” has been on the register since 1991 for identical goods even before the respondent adopted and used the trade mark. We therefore think that the impugned trade mark is wrongly remaining on the register. 15. Accordingly, ORA/204/2007/TM/AMD is allowed with a direction to the Registrar of Trade Marks to remove the trade mark “CRYSTAL” registered under No.1213531 in Class 23 from the register of Trade Marks. There shall be no order as to costs.

INTELLECTUAL PROPERTY APPELLATE BOARD Guna Complex Annexe-I, 2nd Floor, 443, Anna Salai, Teynampet, Chennai-600018     (CIRCUIT SITTING AT AHMEDABAD)     ORA/204/2007/TM/AMD    MONDAY, THIS THE 25th DAY OF JUNE, 2012     Hon’ble Ms.S. Usha                                            …  Vice Chairman Hon’ble Shri V. Ravi                                           …  Technical Member                                                                                                                                                 Crystal Knitters 4/688, Nochipalayam … Continue reading

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