i- \' NEW DELHI $- * 25 + IN THE HIGH COURT OF DELHI AT w.P.(o 68/2010 DAVINDER KAUR A}TD ORS ..... Petitioners Through: \zlr. Mohan Vidhani with Mr. Rahul Vidhani and Mr. Mahir Malhotra, Advocates 26 + . versus UNION OF INDIA AND ANR w.P.(o 84/2010 DAVINDER KAUR AND ORS VETSUS UNION OF INDIA AND ANR ..... Respondents Through: Mr. Sumeet Sharma for IW. Dewat, Advocate for R-l AND Through: Mr. Mohan Vidhani with Mr. Rahul Vidhani and Mr. Mahir Malhotra, Advocates ..... Respondents Through: Mr. Sumeet Sharma for Mr. Dewat, Advocate for R-l CORAM: JUSTICE S. MURALIDHAR ORDER 0s.0s.2010 1. None appea"rs for the Respondent No. 2 despite service. 2. The challenge in these petitions is to an order dated 7ft July 2009 passed by the Intellectual Property Appellate Board ('IPAB') treating the Petitioner's applications TRN9612004/TIVI/DEL and TN237 l2004lTW DEL as abandoned in terms of Rule 17 (2) of the Intellectual Property Appellate Board (Procedure) Rules, 2003. The challenge is alsc' to a subsequent order dated 20ft November 200.9 passed by the IPAB dismissing the Petitioner's applications seeking restoration of the main transferred t w. P.(c)58/2010 & 84/2oto Page L of 3 Digitally Signed By:AMULYA Certify that the digital file and physical file have been compared and the digital data is as per the physical file and no page is missing. Signature Not Verified +- ,f' appeal and the transferred rectification application. 3. The brief facts are that the lawyer of the Petitioner was not present when the appeal was first listed before the IPAB on 7ft July 2009. Nevertheless, after the IPAB'held the applications to be abandoned, an application was filed for recalling of the said order supported by the affidavit of the counsel himself. In paras 6 and 7 of the said application it was stated as under: "6. That on that date of hearing, counsel Md. Sazid Rayeen ieaclred at 10:50 A.M. on 0710712009 as he met with minor incident as his cell phone was taken away by someone in a local bus (Route no.211) and that was the reason of not reaching at the time when the case was called up and also the reason for being unable to give instructions to any other advocate for appearing or for infonnation the Hon'ble Board about the mishappening and for pass over of the matter. 7. That when the said connsel for the appellant Md. Sazid Rayeen reached to attend the hearing at 10:50 A.M., he catne to know that rnatter has been on abandoned accoturt of non appearance. Thereafter, the said counsel mentioned the matter and explained the situation to the Hon'ble Board and thus, he was told to file this restoration application. Ilence the present application is being filed." 3. This Court finds that in the irnpugned order dated 200'November 2009 no mention is rnade by the IPAB of the above affidavit filed by the counsel hirnself. There were sufficient grounds for the IPAB not have treated the application as abandoned. Nevertheless, the IPAB came to the finding of abandonmerrt only on the ground that the counsel for the Petitioner was not present when the case r,vas listed, w.P.(c)68/2010 & 84/2OtO Page 2 of 3 o 4. Thrs Court is unable to appreciate the failure of the IPAB to mention the relevant facts necessary for examining the question whether the absence of the counsel of the Petitioner before the IPAB on 7ft July 2009 was bona fide. 5. This court is satisfied that the counsel for the Petitioner could not'be present when the case was listeci before the IPAB on 7d'Juty 2009 for bona fide reasons. Consequently, the impugned orders dateci 7ft July 2009 and q-, 20n' November 2009 of the IPAB are hereby set aside. The transfened appeal No. TA/237104 and transfered rectification application TPN96|04 are restored to file of the IPAB and will be now disposed of by the IPAB on merits. 6. The petitions are disposed of. MAY 05,2010 ---. ps S. MURALIDHAR, J. w.P.(c)68/2010 & 84/ZOlo Page 3 of 3