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1987 C L C 972

 

[Karachi]

 

Before Abdul Qadeer Chaudhry, J

 

MAGIC CHEF and another‑‑Appellants

 

versus

 

ALNOOR INDUSTRIES and another‑‑Respondents

 

Miscellaneous Appeal No. 59 of 1980, decided on 26th August, 1986.

 

Fatehali W. Vellani for Appellants.

 

Shakiel Z. Lari for Respondents.

 

Date of hearing: 26th August, 1986.

 

JUDGMENT

 

The appellants have challenged the decision of the Registrar of Trade Marks, dated 18‑7‑1979, whereby the learned Registrar dismissed the Opposition No. 27 of 1976 of the appellant No. 2 and allowed the respondent’s application for the registration of the Trade Mark ‘Admiral’.

 

2. The facts in brief are that Messrs Al‑Noor Industries had claimed use of mark ‘Admiral’ since 1967. It was found that there is another mark with the word ‘Admiral’ already on the register for goods like installations for lighting, heating, steam generating, water supply, cooking, refrigerating, drawing, ventilating, deep freezers, toasters, electric irons etc. A show‑cause notice raising objections under sections 10(l) and 8(a) of the Trade Marks Act, 1940 was issued to the applicant on 8‑9‑1973, in reply to which the agent for the applicant stated that the mark ‘Admiral’ is being used by the applicant since 1967 without any let or hinderance from any quarter including the registered Proprietor of the mark No. 11351.

 

3. The learned Registrar after examining the case and considering the facts came to the conclusion that the mark of the respondent is qualified for registration under section 10(2) of the Trade Marks Act.

 

4. Learned counsel for the respondent has raised a preliminary objection that the appeal is barred by time. Learned counsel for the appellant has stated that the appeal is not barred by time.

 

In order to appreciate the respective contentions of the parties it is necessary to refer to sections 76 and Rules 76 and 84 as they originally, stood before the amendment of these rules:

 

Section 76‑(I) Save as otherwise expressly provided in this Act, an appeal shall lie, within the period prescribed by the Central Government, from any decision of the Registrar …… under this Act or the rules made thereunder to the High Court having jurisdiction.

 

Provided that if any suit or other proceedings concerning the trade mark in question is pending before R High Court or a District Court or, as the case may be, to the High Court within whose jurisdiction that District Court is situated.

 

(2) In appeal by an applicant for registration against a decision of the Registrar under section 13 or section 14 or section 15, it shall not be open, save with the express permission of the Court to the Registrar or any party than those recorded in the said decision or advanced by the party in the proceedings before the Registrar, as the case may be; and where any such additional grounds are advanced, the applicant for registration may on, giving notice in the prescribed manner, withdraw his application without being liable to pay the costs of the Registrar or the parties for opposing his application.

 

(3) Subject to the provisions of this Act and of rules made thereunder, the provisions of the Code of Civil Procedure, 1908, shall apply to appeals before a High Court under this Act.

 

Rule 76. Extension of time.‑‑If in any particular case the Registrar is satisfied that the circumstance are such as to justify an extension of the time for doing any act or taking any proceeding under these rules, not being a time expressly provided in the Act or prescribed by rule 55 or 59, he may extend the time upon such notice to other parties, if any and upon such terms as he may direct, and the extension may be granted though the time for doing the act or taking the proceeding has already expired. An application, for extension of time shall be made in Form T.M. 55, on payment of the prescribed fee.

 

Rule 84.‑‑Time for appeal‑‑An appeal to a High Court from any decision of the Registrar under the Act or these rules, shall be made within four months from the date of such decision, or within such further time as Registrar may allow, provided that in calculating the said period of four months the time, if any occupied in granting a copy in writing of the decision appealed shall be excluded.”

 

By Notification, dated 1‑7‑1977 Rule 76 was amended and Rule 84 was substituted which are reproduced as follows:‑‑–

 

Rule 76.‑Extension of time‑‑If in any particular case the Registrar is satisfied that the circumstances are such as to justify an extension of time for doing any act or taking any proceedings under these rules, not being a time expressly provided in the Act or prescribed by rule 55 or 59, he may extend the time upon such notice to other party, if necessary, and upon such terms as he may direct, and extension may be granted though the time for doing the act or taking the proceeding has already expired. An extension granted under this rule shall not exceed a period of more than one month at a time provided that the total period of such extension shall not exceed six months against each statutory period prescribed. An application for extension of time shall be made in Form T.M. 55, on payment of the prescribed fee.

 

Rule 84. Time for a peat‑‑An appeal to the High Court from any decision o the Registrar under the Act or these rules shall be made within two months from the date of such decision.”

 

In the instant case the order has been passed on 18‑7‑1979.

 

The appellant moved application for grant of copy on 25‑7‑1979 and copy was ready on 30‑7‑1979 and it was delivered on 1‑8‑1979. The appeal was filed on 26‑1‑1980. Under Rule 84 two months period is prescribed for filing the appeal against the decision of the Registrar. Thus, the appeal is hopelessly barred by time. Learned counsel for the appellant has stated that the Registrar had extended time to file the appeal by means of his letter, dated 9‑12‑1979 and the time was extended upto 25‑1‑1980 for filing appeal in the High Court. 25th January was Friday, therefore, appeal was filed on 26‑1‑1980. Learned counsel has stated that the Registrar had the authority to extend the time and he has placed reliance on unamended rule 84 which authorised the Registrar to extend the time. Under unamended Rule 84 the period of limitation was four months but after the amendment the period of limitation for filing the appeal is two months only. Now after the substitution of Rule 84 the Registrar cannot extend time. Thus, permission granted by the Registrar has no force and cannot be considered for the extension of the period of limitation. Learned counsel for the appellant has stated that the application was moved in 1973 that is before the amendment of rules 76 and 84 and as such the appeal is the continuation of the suit, therefore, the amended provisions would not apply with retrospective effect. This contention has no force. The right of appeal is a creation of statute and under section 76′ appeal has been provided to the aggrieved person; but the period of limitation is prescribed by Rule 84. Previously the period of limitation ” was four months but by the new provision the period has been curtailed to two months only. The law of limitation is only a procedural law. This is not a substantive law as to create a vested right in favour of a party. Additionally, the order impugned in this appeal was passed v on 18‑7‑1979 that is after the new Rule 84 had been enforced. Therefore, for all practical purposes the period of limitation would be two months and the power of the Registrar to extend this period had been taken away specifically by the Legislature.

 

Learned counsel for the respondent has referred to P L D 1983 Kar. 463 which supports the view I have taken in the present case.

 

Learned counsel for the appellant has referred to section 29 of the Limitation Act. According to section 29(2) where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed, therefor by the First Schedule, the provisions of section 3 shall apply, as if such period were prescribed therefor in that Schedule. Under section 29(2)(a) the provisions contained in section 4, sections 9 to 18, and section 22 shall apply only in so far as, and to the extent to which, they are not expressly excluded by such special or local law. Learned counsel has stated that under section 12 the time requisite for obtaining a copy of the decree, sentence or order appealed from or sought to be reviewed, shall be excluded. In the instant case the copy had been supplied to the appellant on 1‑8‑1979 and the period of two months had expired on 17‑9‑1979; that is the copies have been received by the appellant much before the expiry of the period of limitation. Thus section 12 is not applicable in the present case. Even otherwise the appeal had been filed after more than five months from 1‑8‑1979. Learned counsel for appellant has relied upon P L D 1957 S C 448 in support of his contention wherein it has been held that the right of appeal is not a mere matter of procedure but is a substantive right the institution of the suit carries with it the Implication that all right of appeal then in force are preserved to the parties thereto till the rest of the career of the suit. There is no cavil with this proposition. The vested right of appeal has not been taken away by the Legislature but only time has been prescribed for filing appeal. Two things are quite distinct and distinguishable. In the same authority, it has been held that vested right of appeal can be taken away by a subsequent enactment if it so provides expressly or by necessary intendment and not otherwise. The authority is not applicable at all.

 

Learned counsel has referred to Craies on Statute Law, sixth edition page 401 and has relied upon the discussion on page 401 as follows: ‑‑–

 

“And, therefore, the only question is, was the appeal to His Majesty in Council a right vested in the appellants at the date of the passing of the Act, or was it a mere matter of procedure? It seems to their Lordships that the question does not admit of doubt. To deprive a suitor in a pending action of an appeal to a superior tribunal which belonged to him as of right is a very different thing from regulating procedure”.

 

The above passage does not support the case of the appellant. It is not disputed that an appeal is a vested right but in the present case that right has not been taken away. At page 400 of the above book the following passage is relevant and is a complete answer to the contention of the learned counsel.

 

“But there is no vested right in procedure or costs. Enactments dealing with these subjects apply to pending actions, unless a contrary intention is expressed or clearly implied. It is a general rule that when the Legislature alters the rights of parries by taking away or conferring any right of action, its enactments, unless in express terms they apply to pending actions, do not affect them. But there is an exception to this rule, namely, where enactments merely affect procedure and do not extend to rights of action. For it is perfectly settled that if the Legislature forms a new procedure, that, instead of proceedings in this form or that, you should proceed in another and a different way, clearly there bygone transactions are to be used for and enforced according to the new form of procedure. Alterations in the form of procedure are always retrospective, unless there is some good reason or other why they should not be. In other words, if a statute deals merely with the procedure in an action, and does not affect the rights of the parties, it will be held to apply prima facie to all actions, pending as well as future.’

 

In nutshell the appeal filed by the appellants was barred by time and, therefore, the same is dismissed with no order as to costs.

 

M..Y. H. /4997/ K Appeal dismissed.

 

 

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