Ashiana Ispat Limited v. Kamdhenu Limited & Ors.

226. Power of High Courts to issue certain writs. – (1) Notwithstanding anything in Article 32, every High Court shall have power, throughout the territories in relation to which it exercises jurisdiction, to issue to any person or authority, including in appropriate cases, any Government, within those territories directions, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, or any of them, for the enforcement of any of the rights conferred by Part III and for any other purpose.

6. Accordingly, considering the factual matrix involved, particularly, since as many as 16 trademarks duly registered and subsisting in the name of the petitioner are (not) finding mention in the accompanying Search Report sent along with the ER, it is deemed appropriate to call either of the Examination Officer, namely, Mr. Nehul Kumar or Mr. Rahul Kumar, who have issued the respective ER involved in the writ petitions, to remain physically present in this Court alongwith the appropriate hand held device in the form a laptop, I-pad or any other similar instrument on 15.05.2025 at 02:30 P.M. for assisting this Court for getting a clear picture qua the software being used by the respondent nos.[1] and 2 at the time of preparing the Search Report.

7. This Court also deems it appropriate to also call upon the Registrar of Trademarks to join virtually on 15.05.2025 at 02:30 P.M. as well."

3. The same is also evident from the order dated 15.05.2025, when the proceedings were listed before this Court again on 15.05.2025. Relevant extract thereof is reproduced as under:-

4. Both the aforesaid orders dated 09.05.2025 and 15.05.2025 reflect that there were indeed some omissions on the part of the respondent nos.[1] to 3 in these petitions. In fact, in response thereto, though there was no specific order for the respondent nos.[1] to 3 for filing an affidavit, however, they filed a short affidavit wherein they have themselves categorically stated as under:-

5. Before proceeding further, at the outset, this Court applauds the alacrity shown by the respondent nos.[1] to 3 in initiating timely action at their end to put their house back in order at the earliest and in the best possible manner. But, at the same time, for conserving the multiplicity of litigation, it is felt appropriate, fit and proper if this Court suo moto in exercise of its power under Article 226 of the Constitution of India take steps which are in overall interest of the general public including that of the petitioner and the respondent no.4 herein.

6. Though, no doubt it was open to the petitioner to have availed any of the other statutory remedies as available to it in accordance in law instead of filing the present writ petitions, however, without adverting to the same and considering the factual matrix involved, the nature of the grievances raised and the type of reliefs sought by the petitioner in the present proceedings and in furtherance of the earlier two orders dated 09.05.2025 and 15.05.2025 passed by this Court as also taking into consideration the averments made by the respondent nos.[1] to 3 in the short affidavit filed on their behalf, wherein it is specifically stated that appropriate action has been initiated against the Examiners involved, this Court felt it appropriate, fit and proper to proceed with passing appropriate orders without adverting to the merits involved herein or even issuing notice therein by suo moto exercising its extra-ordinary, inherent jurisdiction under Article 226 of the Constitution of India.

7. This was, more so, since the facts of these proceedings were relating to petitioner having raised questions qua the entire Examination followed by the Registrar and its officers and also the acceptance of the five trademark applications i.e. application no.6890699 in W.P.(C)-IPD 29/2025, application no.6845025 in W.P.(C)-IPD 30/2025, application no.6845771 in W.P.(C)-IPD 31/2025, application no.6890704 in W.P.(C)- IPD 32/2025 and application no.6742246 in W.P.(C)-IPD 33/2025; and that the statutory duties in complete disregard of law specifically, Rule 33 of the Trademark Rules and Section 1120 of the Trademarks Act, 1999 as also various dictums of this Court.

8. In view of the aforesaid, since there is an apparent gross abuse of jurisdiction by the Trade Marks Registry, which is subordinate to this Court, in the considered opinion of this Court, these are fit cases for this Court to suo moto invoke the extraordinary jurisdiction of this Court under Article 226 of the Constitution of India. Furthermore, it is a settled law that entertainment of such writ petitions under Article 226 of the Constitution of India, even when an efficacious alternative remedy is available, is a self-imposed limitation, a rule of policy, convenience and discretion than a rule of law and there is no statutory absolute bar for this Court to proceed with the hearing

11. Relative grounds for refusal of registration. – (1) Save as provided in Section 12, a trade mark shall not be registered if, because of— (a) its identity with an earlier trade mark and similarity of goods or services covered by the trade mark; or (b) its similarity to an earlier trade mark and the identity or similarity of the goods or services covered by the trade mark, there exists a likelihood of confusion on the part of the public, which includes the likelihood of association with the earlier trade mark. thereof. Reliance is placed upon the dictum of the Hon'ble Supreme Court in Commissioner of Income Tax & Ors. v Chhabil Das Agarwal21, wherein it has been held as under:-

9. Reliance is also placed upon State of H.P. & Ors. v Gujarat Ambuja Cement Ltd. & Anr, wherein it has been held as under:-

AIR 1958 SC 86 remedy. If somebody approaches the High Court without availing the alternative remedy provided the High Court should ensure that he has made out a strong case or that there exist good grounds to invoke the extraordinary jurisdiction."

10. As such, in view of the above and under the facts and circumstances involved, this Court is of the considered opinion that it can exercise jurisdiction under Article 226 of the Constitution of India even when an alternative remedy is available. More so, since the present proceedings are such, particularly, whence they were warranting interference by this Court to suo moto exercise its extra ordinary jurisdiction Article 226 of the Constitution of India to meet the ends of justice, whence they are being done to bring the house of Trade Mark Registry in order, so that faith of the general public in the governmental institutions/ Courts/ Tribunals/ Judicial/ Quasi-Judicial, is restored not lost. This will not be possible if this Court does not exercise its extra-ordinary jurisdiction.

11. As such, cumulatively taking all the aforesaid factors, the nature of the proceedings involved, the acts of the Trade Marks Registry particularly in view of the contents of the short affidavit filed by the respondent nos.[1] to 3, as also in the interest of justice, it is deemed appropriate, fit and proper to remand the fate of all the five trademark application no.6890699 in W.P.(C)-IPD 29/2025, trademark application no.6845025 in W.P.(C)-IPD 30/2025, trademark application no.6845771 in W.P.(C)-IPD 31/2025, trademark application no.6890704 in W.P.(C)- IPD 32/2025 and trademark application no.6742246 in W.P.(C)-IPD 33/2025 for de novo adjudication in accordance with law by the Registrar of Trade Marks, without issuance of any notice in the present writ petitions.

12. At this stage, this Court adverts to hear the learned senior counsel for respondent No.4 at length, since he primarily objected to passing the aforesaid order qua de novo adjudication of the impugned applications in accordance with law by the Registrar of Trade Marks without issuance of notice and/ or hearing him on maintainability/ merits of the present petition(s) because the said respondent No.4 is an affected party and because it virtually tantamount to allowing of the present petitions.

13. Thence, relying upon Kaira District Cooperative Milk Producers Union Ltd. & Anr. v Registrar of Trademarks & Ors.26, (paragraphs 11 and 23) wherein a Co-ordinate Bench of this Court has gone into the aspect of Section 21 of the Act as also the 2023 SCC OnLine Del 1730 justification of the scheme of the Act and the Rules, learned senior counsel for respondent no. 4 submits that this Court ought not proceed to pass the said order. Further relying upon T.K. Lathika v Seth Karsandas Jamnadas27, wherein the Hon'ble Supreme Court has laid down the contours as to when the Court should enter into the merits of the proceedings involved, particularly, qua the maintainability of a petition is in question, learned senior counsel reaffirms that this Court is not competent to pass such an order of remand.

14. In rebuttal, relying upon Jai Bhagwan Gupta v Registrar of Trade Marks & Ors.28, the learned senior counsel for petitioner submits that a Co-Ordinate Bench of this Court, under similar kind of circumstances involving the Trade Marks Registry, has held that a specific order has to be passed by the Registrar as to the reason why the mark is being accepted and there has to be a clear application of mind by the Registrar under Section 20(1) of the Act, which should not be a mere formality. The aforesaid is missing in the proceedings before the Trade Marks Registry.

15. Further, learned senior counsel for petitioner relying upon Kaira District Cooperative Milk Producers Union Ltd. & Anr. v

D. N. Bahri Trading29, submits that a Co-Ordinate Bench of this

Court under similar kind of circumstances involving Rule 33 of the Rules has held that compliance of Rule 33 of the Rules is mandatory.

16. In rejoinder arguments, learned senior counsel for respondent no.4 distinguished Jai Bhagwan Gupta (Supra) by submitting that although similar reliefs, as sought by the petitioner herein, were sought therein also, the said writ petition was disposed of only with the direction for the opposition proceedings to be decided as expeditiously as possible as also the right to oppose the said advertised mark was kept open and it was ordered to be decided in accordance with law. Qua Kaira District Cooperative Milk Producers Union Ltd. & Anr. v D. N. Bahri Trading (supra), learned senior counsel submits that the said case was of a rectification petition and was not a writ petition and thus is not applicable to the facts of the present case.

17. Be that as it may, this Court once again reiterates that since the present petitions involve peculiar, strange and exceptional circumstances, they call for orders passed suo moto by invoking the extra-ordinary jurisdiction under Article 226 of the

(2020) 82 PTC 240 2024 SCC OnLine Del 2550 Constitution of India. Reliance is once again placed upon the earlier orders dated 09.05.2025 and 15.05.2025 passed by this Court as also the resultant short affidavit filed by the respondent nos.[1] to 3 wherein, it is specifically stated that appropriate action have been initiated against the Examiners involved.

18. Qua the two judgments cited by learned senior counsel for the respondent no.4, this Court finds that the underlying common thread running through them are that notice(s) had already been issued in both of them and the Court(s) were not exercising extraordinary jurisdiction under Article 226 of the Constitution of India. Moreover, in Kaira District Cooperative Milk Producers Union Ltd. & Anr. v Registrar of Trademarks & Ors. (supra) the opposition proceedings were already filed and pending before the Trade Marks Registry and the learned Single Judge deemed it appropriate not to entertain the petition as parallel proceedings and adjudicate the grievance of the petitioner therein.

19. In any event, in the present peculiar factual circumstances, the petitioner has approached this Court under Article 226 and Article 227 of the Constitution of India without/ before filing any opposition proceedings to any of the five trademark applications and/ or even when the mandatory period for filing the same still available to the petitioner.

20. In view of the aforesaid discussions, this Court sees no reason and/ or impediment for this Court to suo motu exercise of its inherent jurisdiction under Article 226 of the Constitution of India for setting a 'wrong' right in the public good.

21. In view of the aforesaid, the writ petitions are disposed of remanding all the five trademark applications i.e. application no.6890699 in W.P.(C)-IPD 29/2025, application no.6845025 in W.P.(C)-IPD 30/2025, application no.6845771 in W.P.(C)-IPD 31/2025, application no.6890704 in W.P.(C)-IPD 32/2025 and application no.6742246 in W.P.(C)-IPD 33/2025 for de novo adjudication by the Registrar of Trade Marks in accordance with law.” (Emphasis supplied) Rival Contentions

8. Mr. Chander M. Lall, learned Senior Counsel for the appellant submits that

(i) the writ petitions were not maintainable,

(ii) the learned Single Judge could not have effectively allowed the writ petitions without even affording the appellant an opportunity to file a counter-affidavit, and

(iii) the writ petitions ought not to have been entertained by the learned Single Judge in the face of the availability, to the respondent, of an equally efficacious alternate remedy by way of opposition under Section 21 of the TMA.

9. Mr. Sai Deepak contends, per contra, that

(i) the writ petitions were maintainable,

(ii) the plea that no formal notice, calling upon the appellant to file counter-affidavits to the writ petitions had been issued and no opportunity had, therefore, been granted to them to do so, was without merit, as they were present on all dates of hearing and were given adequate opportunity to advance submissions, and

(iii) the learned Single Judge had rightly entertained them in exercise of suo motu jurisdiction under Article 226 of the Constitution of India, which was absolute in nature and on which there could be no fetters. Our Decision

10. We disagree with Mr. Lall regarding submission (i), we agree with him regarding submission (ii) and we do not intend to return any finding on submission (iii), as we deem it appropriate to direct the learned Single Judge to examine the issue afresh, after providing an opportunity to the appellant in the terms that we propose to set out. Our Reasons

11. Re. maintainability of the writ petitions 11.[1] There is a well-recognised distinction between the maintainability, and the entertainability, of a writ petition. The maintainability of a writ petition is to be decided solely by reference to Article 226 of the Constitution of India, where the writ petition is filed in the High Court. If the petition does not conform to the requirements of Article 226, it is not maintainable, and matters must rest there. If, however, the writ petition conforms to the requirements of Article 226, it is maintainable. 11.[2] The jurisdiction conferred by Article 226 is, however, extraordinary in nature. It is open to a Court, even in a case in which a writ petition is maintainable, to refuse to entertain the writ petition. That refusal, however, has to be on cogent and well-established principles. The most often cited instances, in which a Court may refuse to entertain a writ petition even though it is maintainable, are where there is an equally efficacious alternate remedy available to the petitioner, or where the writ petition involves disputed issues of fact, as may necessitate a trial and appreciation of evidence. Neither of these, however, operates as an absolute bar to entertainment of a writ petition. In an appropriate case, a Court may entertain a writ petition even if there is an equally efficacious alternate remedy available, or even if the writ petition raises disputed issues of fact. 11.[3] Thus, on the aspect of maintainability of a writ petition, no discretion vests with the Court. A writ petition is either maintainable, or not maintainable, depending on whether it conforms, or does not conform, to Article 226. If the writ petition conforms to Article 226, the Court cannot hold that it is not maintainable. 11.[4] As against this, the decision on whether to entertain, or not to entertain, the writ petition, is entirely within the discretion of the Court. 11.[5] Exercise of original jurisdiction by a Court may either be ordinary, or extraordinary. 11.[6] Ordinary jurisdiction is exercised by the Court most often while entertaining civil suits and other civil disputes, filed under specific provisions available for the said purpose. There is, ordinarily, no discretion vested with the court, insofar as exercise of its ordinary original jurisdiction is concerned. A party which approaches the Court in a suit, which lies in law, cannot be non-suited, as exercise of ordinary original jurisdiction by the Court is not subjected to the fetters which attach to exercise of extraordinary original jurisdiction. 11.[7] Exercise of extraordinary original jurisdiction, which is what the Court exercises under Article 226 is, however, a matter of discretion. The Court may, for cogent reasons already noted earlier, decline to exercise extraordinary jurisdiction under Article 226, and may relegate the party to other remedies. The only circumstance in which the Court cannot refuse to entertain a writ petition is where the petition conforms to Article 226 and is therefore maintainable, and where the party has no other remedy available. No litigant can be left remediless. In all other cases, exercise of Article 226 jurisdiction is extraordinary and, therefore, is subject to the discretion of the Court concerned. 11.[8] The Supreme Court has, in the following paras from Godrej Sara Lee Ltd v Excise and Taxation Officer30, clearly outlined a distinction between maintainability and entertainability of a writ petition:

AIR 2023 SC 781 (1975) 2 SCC 43631 based on which it was contended on their behalf that where any right or liberty arises under a particular Act then the remedy available under that Act has to be availed, the High Court was of the opinion that there can be no presumption that the appellate authority would not be able to grant relief sought in the writ petition; hence, the writ petition was dismissed and the appellants were relegated to the appellate remedy.

4. Before answering the questions, we feel the urge to say a few words on the exercise of writ powers conferred by article 226 of the Constitution having come across certain orders passed by the High Courts holding writ petitions as "not maintainable" merely because the alternative remedy provided by the relevant statutes has not been pursued by the parties desirous of invocation of the writ jurisdiction. The power to issue prerogative writs under article 226 is plenary in nature. Any limitation on the exercise of such power must be traceable in the Constitution itself. Profitable reference in this regard may be made to article 329 and ordainments of other similarly worded articles in the Constitution. Article 226 does not, in terms, impose any limitation or restraint on the exercise of power to issue writs. While it is true that exercise of writ powers despite availability of a remedy under the very statute which has been invoked and has given rise to the action impugned in the writ petition ought not to be made in a routine manner, yet, the mere fact that the petitioner before the High Court, in a given case, has not pursued the alternative remedy available to him/it cannot mechanically be construed as a ground for its dismissal. It is axiomatic that the High Courts (bearing in mind the facts of each particular case) have a discretion whether to entertain a writ petition or not. One of the self-imposed restrictions on the exercise of power under article 226 that has evolved through judicial precedents is that the High Courts should normally not entertain a writ petition, where an effective and efficacious alternative remedy is available. At the same time, it must be remembered that mere availability of an alternative remedy of appeal or revision, which the party invoking the jurisdiction of the High Court under article 226 has not pursued, would not oust the jurisdiction of the High Court and render a writ petition "not maintainable". In a long line of decisions, this court has made it clear that availability of an alternative remedy does not operate as an absolute bar to the "maintainability" of a writ petition and that the rule, which requires a party to pursue the alternative remedy provided by a statute, is a rule of policy, convenience and discretion rather than a rule of law. Though elementary, it needs to be restated that "entertainability" and "maintainability" of a writ petition are distinct concepts. The Titagarh Paper Mills v Orissa State Electricity Board fine but real distinction between the two ought not to be lost sight of. The objection as to "maintainability" goes to the root of the matter and if such objection were found to be of substance, the courts would be rendered incapable of even receiving the lis for adjudication. On the other hand, the question of "entertainability" is entirely within the realm of discretion of the High Courts, writ remedy being discretionary. A writ petition despite being maintainable may not be entertained by a High Court for very many reasons or relief could even be refused to the petitioner, despite setting up a sound legal point, if grant of the claimed relief would not further public interest. Hence, dismissal of a writ petition by a High Court on the ground that the petitioner has not availed the alternative remedy without, however, examining whether an exceptional case has been made out for such entertainment would not be proper.

5. A little after the dawn of the Constitution, a Constitution Bench of this Court in its decision reported in 1958 SCR 59532 had the occasion to observe as follows: "10. In the next place it must be borne in mind that there is no rule, with regard to certiorari as there is with mandamus, that it will lie only where there is no other equally effective remedy. It is well established that, provided the requisite grounds exist, certiorari will lie although a right of appeal has been conferred by statute, (Halsbury's Laws of England, 3rd Edn., Vol. 11, p. 130 and the cases cited there). The fact that the aggrieved party has another and adequate remedy may be taken into consideration by the superior court in arriving at a conclusion as to whether it should, in exercise of its discretion, issue a writ of certiorari to quash the proceedings and decisions of inferior courts subordinate to it and ordinarily the superior court will decline to interfere until the aggrieved party has exhausted his other statutory remedies, if any. But this rule requiring the exhaustion of statutory remedies before the writ will be granted is a rule of policy, convenience and discretion rather than a rule of law and instances are numerous where a writ of certiorari has been issued in spite of the fact that the aggrieved party had other adequate legal remedies...."

6. At the end of the last century, this court in paragraph 15 of its decision reported in (1998) 8 SCC 133 carved out the exceptions on the existence whereof a writ court would be justified in State of Uttar Pradesh v Mohammad Nooh Whirlpool Corporation v Registrar of Trade Marks, Mumbai entertaining a writ petition despite the party approaching it not having availed the alternative remedy provided by the statute. The same read as under:

(i) where the writ petition seeks enforcement of any of the fundamental rights;

(ii) where there is violation of principles of natural justice;

(iii) where the order or the proceedings are wholly without jurisdiction; or

(iv) where the vires of an Act is challenged.

7. Not too long ago, this court in its decision reported in 2021 SCC Online SC 88434 has reiterated the same principles in paragraph 11.” 11.[9] Viewed thus, it is clear that the writ petitions filed by the respondent were maintainable. The guiding principle – in fact, one may almost call it the “golden test” – in this regard is, in our view, that postulated in para 4 of Godrej Sara Lee, in the words: “The objection as to “maintainability” goes to the root of the matter and if such objection were found to be of substance, the courts would be rendered incapable of even receiving the lis for adjudication.” Thus, a sustainable objection to maintainability must be one which deserves acceptance and denudes the Court of jurisdiction altogether, even to receive the matter. In other words, the lis must be one of which Article 226 does not even permit adjudication. Expressed otherwise, the petition must not be amenable to adjudication under Article 226. Then, and then alone, would the writ petition not be maintainable.

11.10 There can be no manner of doubt that the exercise of examination of an application for registration of a trade mark, issuance of FER if deemed appropriate, the response thereto, the consideration Assistant Commissioner of State Tax v Commercial Steel Limited thereof and passing of final orders after hearing the applicant is an exhaustive and detailed exercise, as envisaged in Rule 33 of the TMR. Failure, on the part of the Registrar, to diligently comply with the said procedure, is certainly actionable. Rule 33(1) specifically requires the marks in respect of which applications for registration are pending, as to whether there are any trade marks which are deceptively similar to, or identical with, the mark of which the applicant seeks registration. If there are, it is the statutory duty of the Registrar to require the applicant, in the FER which the Registrar would issue, to satisfy the nonetheless merits registration, despite the existing trade marks that the Registrar chooses to cite. Needless to say, it shall be open to the applicant, in such circumstances, to satisfy the Registrar that the mark of which the applicant seeks registration is not identical or deceptively similar to any of the cited marks.

11.11 It is, therefore, the bounden duty of the Registrar to confront the applicant seeking registration of a trade mark with all other trade marks, earlier registered or in respect of which applications for registration are pending, which, in the perception of the Registrar, are identical or deceptively similar to the trade mark of which the applicant seeks registration. Equally, it would be the entitlement of the proprietor of any such deceptively similar, or identical, trademark, registered prior in point of time or in respect of which an application for registration is pending, to have its mark cited by the Registrar as a rival mark. This is a valuable right, as a proprietor of a registered trade mark is entitled to every opportunity to protect his intellectual property. If, therefore, the Registrar is remiss in his responsibility to cite, by way of FER issued to the applicant, the identical or deceptively similar marks which are already on the register, or of which applications for registration are pending, the proprietor of such registered trade marks, or the applicant of an application seeking registration of such an identical or similar trade mark, would be within his right to question the action of the Registrar as not having been undertaken in accordance with Rule 33 of the TMR read with Section 20 of the TMA.

11.12 There is no constitutional embargo which prevents, or proscribes, this challenge from being ventilated by way of a writ petition under Article 226 of the Constitution.

11.13 Article 226(1) is couched in very wide terms. It empowers the High Court to issue directions, orders or writs, for any purpose, to any authority within its territorial jurisdiction. If one is to read Article 226(1) in absolute terms, there is practically no order which cannot be issued by the High Court thereunder. The High Court is empowered, under the provision, not only to issue writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, but any other direction, order or writ, as is apparent from the use of the word “including”, preceding the words “writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, or any of them”. The writ, order or direction can be issued “to any person or authority, including in appropriate cases, any Government”. Thus, the power to issue writs is not restricted only to the Government or governmental authorities. It extends to “any person or authority”. Again, the writ can issue not just for enforcement of fundamental rights, but for “any other purpose”.

11.14 It is apparent, therefore, that the framers of the Constitution, as it stands amended to date, have conferred, on High Courts, practically unbridled power to issue writs under Article 226 of the Constitution of India. The sweep of Article 226, which may otherwise be completely unbridled has, however, by various judicial authorities delivered from time to time, been subjected to reasonable checks and balances. Thus, writ jurisdiction is not to be exercised to substitute the view of the High Court to a plausible view taken by the authorities below35, or, ordinarily, where an equally efficacious alternate remedy is available to the petitioner36, or in such a way as would amount to the High Court sitting in appeal over the decision of the authorities below37, or against a purely private body which does not discharge any public function38, or where, even if the private body is discharging a public function, the petitioner does not seek enforcement of that public function, such as a challenge to termination of an employee by a private school39, or seeking a mandamus to the State in respect of a purely private property dispute40. It is neither possible nor advisable to delineate, exhaustively, all circumstances in which the power under Refer W.B. Central School Service Commission v Abdul Halim, (2019) 18 SCC 39 Refer United Bank of India v Satyawati Tandon, (2010) 8 SCC 110 Refer P. Kasilingam v P.S.G. College of Technology, (1981) 1 SCC 405; Electrical Rengali Hydro Electric Project v Giridhari Sahu, (2019) 10 SCC 695 Refer Rajbir Surajbhan Singh v Institute of Banking Personnel Selection, (2019) 14 SCC 189; Ramakrishna Mission v Kago Kunya, (2019) 16 SCC 303 Refer Trigun Chand Thakur v State of Bihar, (2019) 7 SCC 513 Refer N. Sankaranarayanan v T.N. Housing Board, (2020) 14 SCC 457 Article 226 should be exercised, or should not be exercised, but it would, to our mind, be advisable for the Court, approached under Article 226, to remain conscious of the fact that it is exercising extraordinary, and not ordinary, jurisdiction.

11.15 We are, therefore, of the view that it cannot be said that the writ petitions filed by the respondent were not maintainable. If the respondent’s marks were actually identical, or deceptively similar to, the mark of which the appellant seeks registration, and if they were not cited as rival marks in the FER issued by the Registrar, or if the appellant’s marks were allowed to proceed to advertisement without any FER, as the respondent would allege, the action would become vulnerable to challenge and, therefore, the writ petitions filed by the respondent would be maintainable.

11.16 We are in agreement with Mr. Sai Deepak that the advertisement of the application by the Registrar of Trademarks is not a purely ministerial act. The Registrar is required to apply his mind as to whether any rival marks are in existence and to issue an appropriate FER in a case where such rival marks exist before advertising the application. The decision to advertise the application is, therefore, in our view, a decision against which a writ petition under Article 226 of the Constitution is maintainable.

11.17 The submission of Mr. Lall that the writ petitions filed by the respondent were not maintainable is, therefore, rejected.

12. Re. Objection regarding failure of opportunity to appellant to file its counter-affidavit 12.[1] The learned Single Judge has proceeded to allow the writ petition filed by the respondent without issuance of a formal notice to the appellant. It has been pointed out to us that the appellant was in fact present on the various dates when the matter was listed before the learned Single Judge. Mr. Sai Deepak, learned Senior Counsel for the respondent also endeavoured to submit that the appellant’s arguments were heard by the learned Single Judge on the date when the impugned order came to be passed. 12.[2] We are unimpressed with these submissions. In our view, the final order that the learned Single Judge came to pass, which was to set the prosecution of the applications of the appellant back to the initial stage could not have been passed without permitting the appellant to file a counter-affidavit by way of a response to the writ petition, especially as a specific objection to this effect has been taken by the appellant, and recorded in the impugned judgment. Though the learned Single Judge is, while passing the impugned order, clearly seriously concerned about the manner in which application seeking registration of trademarks are being dealt with in the office of the relegating the applications of the appellant to stage one, as it were, without allowing the appellant an opportunity to file a response to the writ petition. No irreparable or serious prejudice would have ensued, if the appellant was to be allowed an opportunity to file a response to the writ petition. 12.[3] A chance to respond, on affidavit and on oath, to the averments in the writ petition, is not an empty formality. An audience before the Judge, or even an opportunity to address arguments, is not a substitute for an opportunity to place one’s stand on affidavit. The sanctity of pleadings is sui generis, and cannot be compromised. 12.[4] There may, of course, be cases in which the situation is so emergent, and the likelihood of irreparable damage so imminent that, even without notice to the respondent, the writ petition may have to be allowed. One may also hypothetically conceive of situations in which, if he is placed on notice, a respondent in a writ petition may irreparably prejudice the proceedings. The present case is, however, not one such. The appellant’s applications had merely been advertised. Even if the learned Single Judge were of the opinion that they ought not to be allowed to proceed further, he could have put an interlocutory injunction in place, and proceeded to decide the matter after allowing the appellant an opportunity to respond. 12.[5] We, therefore, are of the opinion that the writ petitions deserve to be remanded to the learned Single Judge for decision afresh. We have clarified that the writ petitions were maintainable; ergo, the learned Single Judge would be possessed of the jurisdiction to deal with the matter.

13. Re. plea of alternative remedy 13.[1] Whether the writ petitions ought, or ought not, to be entertained is, however, an altogether different matter. It is open to the Court, before whom such a writ petition is brought, to hold that the petitioner had equally efficacious alternate avenues of remedy available and on that ground, or on any other ground, refuse to entertain the writ petition. 13.[2] Though it is true that the learned Single Judge has opined that the writ petitions were maintainable despite the availability of an alternative remedy, we are of the view that the reasons adduced in that regard are insufficient. The observations of the learned Single Judge, on the aspect of whether the writ petitions were deserving of being entertained despite the availability of a remedy of filing opposition to the applications, in terms of Section 21 of the Trade Marks Act, are contained in paras 6, 8 and 10 of the impugned judgment. These paras already stand reproduced earlier. However, the factors which have been cited by the learned Single Judge, in these paras, to justify entertainment of the writ petitions despite the availability of remedy under Section 21 may briefly be noted. The learned Single Judge observes that “considering the factual matrix involved, the nature of the grievances raised and the types of reliefs sought by the petitioner in the present proceedings… as also taking into consideration the averments made by the respondent nos. 1 to 3 in the short affidavit filed on their behalf, wherein it is specifically stated that appropriate action has been initiated against the Examiners involved”, the Court deemed it “appropriate, fit and proper” to proceed to pass appropriate orders “without adverting to the merits involved or even issuing notice … by suo motu exercising its extraordinary, inherent jurisdiction under Article 226 of the Constitution of India”. This, it is observed, was “more so, since… the petitioner (hand) raised questions qua the entire Examination followed by the Registrar and its officers and also the acceptance of the 5 trademark applications…; and that the statutory duties in complete disregard of law specifically, Rule 33 of the Trademark Rules and Section 11 of the Trade Marks Act, 1999 as also various dictums of this Court”. Para 8 goes on to observe that, as there was “an apparent gross abuse of jurisdiction by the Trade Marks Registry … these are fit cases for this Court to suo moto invoke the extraordinary jurisdiction of this Court under Article 226 of the Constitution of India”. 13.[3] The considerations outlined in paras 6, 8 and 10 of the impugned judgment and attempted to be captured in para 13.[2] supra, in our view, do not make out a case for bypassing the alternate remedy available in Section 21 of the Trade Marks Act and for directly entertaining a writ petition. The learned Single Judge is obviously deeply concerned about the manner in which the Trade Marks Registry is functioning. At various points, the learned Single Judge claims to be exercising suo motu jurisdiction. With great respect to the learned Single Judge, we are of the opinion that the jurisdiction exercised by the learned Single Judge cannot be regarded as suo motu. Suo motu action is that taken by a Court of its own accord, not at the request of any party. Inasmuch as the impugned order has been passed on writ petitions filed by the respondent, it cannot be said to have been passed in exercise of suo motu jurisdiction. 13.[4] It remains, further, arguable whether, given the established roster of this Court, the learned Single Judge could have exercised suo motu jurisdiction, as that would then partake of the nature of public interest litigation. We do not, however, proposed to enter into that arena as, in our opinion, the jurisdiction exercised by the learned Single Judge, while passing the impugned judgment, cannot be regarded as having been exercised suo motu. 13.[5] The reliance, by the learned Single Judge, on the affidavit filed by the office of the Registrar of Trade Marks cannot, in our view, justify jettisoning the requirement of grant of an opportunity to the appellant to respond to the writ petition. After all, the party who was affected by the reliefs sought in the writ petition was not the Registrar, but the appellant, the prosecution of whose applications were subject matter of challenge. In fact, we are of the opinion that it was incumbent on the learned Single Judge to, on the very first date of effective hearing, issue notice to the appellant. 13.[6] No examination of merits 13.6.1There is another obvious error in the matter in which the learned Single Judge has dealt with the matter. There is no finding in the impugned order, even prima facie, that the marks of the respondent were identical or deceptively similar to the AL KAMDHENU GOLD mark of which the appellant sought registration. Without examining this, we are of the opinion that the learned Single Judge could not have arrived at a finding that, in issuing the FER in two cases without mentioning the marks of the respondent, or in failing to issue the FER in the other three cases, the office of the acknowledged in para 6 of the impugned judgment, in which the learned Single Judge observes that he was exercising jurisdiction without going into the merits of the matter. 13.6.2Mr. Lall submits, and we agree with him, that, without adverting to the merits of the matter, the learned Single Judge could not have arrived even at a prima facie finding that the appellant’s marks were deceptively similar to those of the respondent, so that the issued to the appellant. The undertaking, by the Registrar, to withdraw the acceptance of the applications of the appellant, quite obviously, could not be in any way even determinative, much less, dispositive, of the issue. 13.6.3This aspect is also, to our mind, relevant, while deciding whether the writ petitions deserved to be entertained. 13.[7] We, however, do not propose to finally pronounce on the entertainability of the writ petitions filed by the respondent. As we are, in any event, directing that an opportunity be granted to the appellant to file a counter-affidavit, we permit the appellant to raise an objection in that regard, if it so chooses, in the counter-affidavit, and the respondent to justify the invocation of Article 226 of the Constitution of India despite the availability of the remedy of opposition under Section 21 of the TMA, in its rejoinder. We request the learned Single Judge, in the de novo proceedings, to examine the aspect of entertainability of the writ petitions afresh. Conclusion

14. Following the aforesaid discussion, without entertaining into any other aspect of the matter, we dispose of this appeal in the following terms:

(i) The impugned judgment dated 28 May 2025 is quashed and set aside.

(ii) We hold that the writ petitions filed by the respondent were maintainable.

(iii) We, however, do not express any opinion on whether the writ petitions ought, or ought not, to be entertained by the learned Single Judge. We leave this aspect open for consideration afresh. The appellant shall be at liberty to raise all submissions in opposition to the entertainability of the writ petition before the learned Single Judge and the respondent would also be at liberty to submit likewise by way of response. The issue of whether the writ petition should be entertained is, therefore, left open to be decided by the learned Single Judge.

(iv) Formal notice of the writ petition shall be deemed to have been issued to the appellant. The appellant is directed to file a counter-affidavit by way of response to the writ petition within a period of two weeks. Rejoinder thereto may be filed within two weeks thereof.

(v) The writ petition shall stand restored to the file of the learned Single Judge.

(vi) Both parties are directed to appear before the learned

15. All other issues of fact or law shall remain open to be urged before the learned Single Judge.

16. Mr. Lall also raises an objection regarding territorial jurisdiction as one of the applications under challenge was filed before the Ahmedabad office of the Registrar of Trade Marks. This aspect shall also be open to be taken up before the learned Single Judge.

17. Mr. Sai Deepak prays that the respondent’s right to file opposition by way of response to the appellant’s trademark application should be left open. We are expressing no view in the matter. It shall be open to the parties to urge this aspect before the learned Single Judge and to seek liberty as sought before us from the learned Single Judge. The learned Single Judge would take a call on the request, if made.

18. The appeal stands disposed of in the aforesaid terms.

C. HARI SHANKAR, J.

OM PRAKASH SHUKLA, J. SEPTEMBER 3, 2025