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Miscellaneous Appeal No. 24 of 1978, decided on 20th April, 1982.

--‑ Read with General Clauses Act (X ‑ of 1897), S. 21‑Ex parte order passed by Assistant Registrar‑Held, can be set aside by such Assistant Registrar on sufficient cause being shown for non‑appearance of party.

Hussain Bux v. Settlement Commissioner, Rawalpindi P L D 1970 S C 1 ; Messrs Premier Tobacco Industries Ltd. v. Dossal Industries and another Civil Appeal for Special Leave to Appeal Nos. K‑45 & K‑46 of 1978 distinguished.

Muhammad Aslam Mirza v. Mst. Khurshid Begum P L D 1972 Lah. 603 ; N. Q. Industries v. Mrs. Bapai Kaikhusro P L D 1968 Kar. 589 ; Hazoor Bux v. Muhammad Yakoob P L D 1975 Quetta 39 and Din Muhammad v. Abdul Aziz P L D 1967 Lah. 653 ref.

---S. 10‑Trade mark sought to be registered resembling to that already registered in name of opposite‑party‑Order refusing to register such mark‑Held, in consonance with law.

A. L. Toakur for Appellant.

B. J. Desa for Respondents.

Date of hearing : 20th April, 1982.

This appeal is directed against the order dated 5‑3‑1978 passed by the Dy. Registrar, Trade Marks, in opposition 26/74 rejecting 'the appellant's application (Application No. 57688 dated 15‑8‑1972) for the registration of mark consists of A "Pilot's Wheel" in respect of pharmaceutical being Bio Chemical and homeopathic medicines in class V.

The brief facts leading to the filing of the above appeal are that the appellant filed the above application for registration on 15‑8‑1972 of the above device in respect of the above products on the basis of their alleged user for 5 years. The above application was advertised in February, 1978 issue of Trade Marks Journal. Thereupon, the respondent a British Company of Port Sunlight Cheshire, England, filed notice of opposition to the registration of the said trade mark on account of the prior registration of the words and device of wheel in Class V. It seems that the Assistant Registrar by his order dated 5‑91975 on account of the absence of the Advocate for the respondent ordered that the opposition be deemed as abandoned under R. 33(2) after the expiry of the appeal period. It further seems that the learned Advocate for the respondent filed an application on 10‑9‑1975 for setting aside the above order supported with a personal affidavit, in which it was averred that he was ready with the case on 5‑9‑1975 but at 6‑30 in the morning his daughter who was about 4 years old, was taken seriously ill and started bleeding from the nose and that as there was no other adult member in the family, he bad to take his daughter to the doctor. It was also averred that immediately after getting his daughter examined by a doctor, he rushed to the Trade Marks office to attend his case but was informed that at about 9‑55 a.m. an ex parte order was passed disallowing T. M. 55, thereby refusing the opponent's request further expansion of time to file evidence in support of the above opposition. To the above application a counter -affidavit was filed by the appellant denying generally the averments contained in the affidavit. It was also averred by the appellant that the facts mentioned in the personal affidavit of the Advocate did not constitute sufficient cause of circumstance beyond his control. It was also stated that the matter was taken up at about 10‑30 a.m. However, the learned Assistant Registrar of Trade Marks after hearing the parties set aside the aforesaid ex parse order dated 5‑9‑1975 and proceeded with the application on merits and dismissed the same inter alia on the ground that the device for which the appellant was seeking registration was the same or of the same description and the marks were also nearly resembling each other. The appellant being aggrieved by the above order has filed the present appeal.

2. (a) In support of the above appeal Mr. Thakur, learned counsel for the appellant has made the following submissions

(i) That the Assistant Registrar had no power to recall his aforesaid ex parte order dated 5‑9‑1975 as there is no provision in the Trade Marks Act or the rules empowering the Assistant Registrar to review his own order.

(ii) That the acceptance of the respondent's opposition was not warranted as the device, which was sought to be registered was distinguishable and also for the reason that the respondent deals in pharmaceutical, whereas the appellant deals in biochemical and homoeopathic medicine.

(b) On the other hand it was urged by Mr. Desa that since the order dated 5‑9‑1975 was an ex parte order the Assistant Registrar had the power in law to recall the above order on sufficient cause being shown. His further submission was that on merits the opposition has been properly allowed as both the parties deal in medicine.

3. (a) Reverting to the first contention of Mr. Thakur that the Assistant Registrar had no power to review his order dated 5‑9‑1975, it may be observed that he has referred to the case of Hussain Bux v. Settlement Commissioner, Rawalpindi (P L D 1970 S C 1), in which the facts were that a writ petition filed in the erstwhile High Court of West Pakistan, Lahore was dismissed by a Division Bench in limine on the ground that the petitioners had no locus standi to invoke the writ jurisdiction. However, the above order was sought to be reviewed on the ground of discovery of new facts, which was allowed. The respondent being aggrieved filed an appeal, which was allowed by the Supreme Court on the ground that the High Court while exercising writ jurisdiction had no power to review its own order except to correct the errors apparent on the face of the record in the exercise of inherent jurisdiction. Mr. Thakur has also referred to an unreported order dated 2‑3‑1978 passed in Civil Appeal for Special Leave to Appeal Nos. K‑45 and K‑46/78 (Messrs Premier Tobacco Industries Ltd. v. Dossal Industries and another) in which leave was granted by the Supreme Court to consider the question as to whether tine Registrar of Trade Marks had the power to review his previous order.

He has further referred to section 97 of the Trade and Merchandise Marks Act, 1958, in force at present in India, in support of his contention that in the absence of an express provision the Indian Legislature has provided for the review expressly in section 97 of the New Act.

On the other hand, Mr. Desa has referred to the case of Muhammad Aslam Mirza v. Mst. Khurshid Begum (P L D 1972 Lah. 603), a Full Bench case in which the majority view was that a Rent Controller in the absence of any express power in the Rent Restriction Ordinance could set aside an ex parte order. Similar view was taken earlier in the Karachi case of N. Q. Industries v. Mrs. Bapai Kaikhusro (P L D 1968 Kar. 589), and the same view was taken in the case of Hazoor Bux v. Muhammad Yakoob (P L D 1975 Quetta 39), and the case of Din Muhammad v. Abdul Aziz (P L D 1967 Lah. 653).

(b) In my view the power to review an order passed after hearing the parties is different form the power to recall an ex parte order on sufficient ground being shown in the absence of any express prohibition. In my view an ex pane order can be set aside by the authority passing the said order, by pressing into service the principle contained in section 21 of the General Clauses Act, which provides that whereby any (Central Act) or regulation, a power to (issue a notifications) Orders, rules, or bye‑laws is conferred, then that power includes a power exerciseable in the like manner and subject to the like sanction and conditions (if any) to add, to amend, vary, or rescind any (notifications), orders, rules or bye‑laws. In the instant case the averment contained in the personal affidavit of the Advocate appearing for the respondent to the effect that at 6‑30 a.m. his daughter started bleeding and, therefore, he had to take her to a doctor, was not refuted expressly in the counter‑affidavit filed by the appellant. In my view, as the sufficient cause was shown by the Advocate appearing for the respondent, the learned Assistant Registrar was competent in law to set aside the ex parte order which was admittedly passed in the absence of the respondent. The above Supreme Court case of 1970 relied upon by Mr. Thakur is distinguishable in asmuch as in the aforesaid case the order of dismissing the writ petition in limine was passed after hearing the petitioners and the same was reviewed without having an express power to review in the Constitution or under any other law. Furthermore the unreported order of the Supreme Court, whereby leave has been granted by the Supreme Court referred to hereinabove, does not lay down the proposition, which has been canvassed by Mr. Thakur before me.

4. As regards the merits of the case, it is an admitted position that the respondent are the holder of registered trade marks of the word "Wheel", "Wheel brand", the word and devoice of wheel in circle etc. for the various products. Since 1943 onwards, they have been dealing in medicine though in pharamaceutical. Admittedly the appellant is also dealing in medicine though in bio‑chemical and homeopathic. The inner circle of the registered a device of the respondent resembles with the device of the trade mark, which was sought to be registered by the appellant. In this view of the matter the order of the Deputy Registrar in appeal seems to be in consonance with law. The appeal is, therefore, dismissed but there will be no order as, to costs.

S. Q. Appeal dismissed.

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