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Miscellaneous Appeal No. 37 and Civil Miscellaneous Appeal No. 942 of 1985, decided on 3rd November, 1985.

‑‑‑S. 12‑‑Limitation‑‑Certified copies‑‑Party duty bound to obtain certified copy and receive it whenever it was made ready

‑‑‑S. 76‑‑Limitation Act (IX of 1908), S. 5‑‑Trade mark‑‑Appeal‑ Limitation‑‑Trade Marks Act a special Act providing for limitation for filing appeal‑‑Provisions of S. 5, Limitation _Act, 1908, held, not applicable.

1970 Law Notes 358; P L D 1982 S C 88; P L D 1981 Kar. 76 and 1981 C L C 592 rel.

‑‑‑S. 76‑‑Limitation Act (IX of 1908),S. 5‑‑Trade mark‑‑Appeal‑‑ Limitation‑‑Appeal not filed within period of limitation given in Trade Marks Act‑‑Provisions of S.5, Limitation Act not applicable to such appeal.

Ashraf Ali for Appellant.

Khawaja Mansoor for Respondents.

The matter was taken up on 31‑10‑1985 when both the parties partly argued the matter, but before, I could dictate the order, Mr. Ashraf Ali requested that time may be granted to further prepare the matter on the point of limitation. I granted the time on the understanding, which was made clear to both the Advocates, that in no circumstances, the hearing will be adjourned on 3‑11‑1985.

Today Mr. Sarwana has filed an application for adjournment on behalf of Mr. Ashraf Ali, on the ground that he is sick. In the background in which the adjournment was granted, I am not inclined to grant time. If at all the learned counsel was sick, then what had happened on 31‑10‑85 he should have filed medical certificate alongwith the application, which has not been filed. The request is refused.

I have heard Mr. Khawaja Manzoor. The point for consideration at this stage is, whether the appeal is within time. The appellant has filed an application under section 5 of the Limitation Act which pre‑supposes that the appeal was filed out of time. On 31‑10‑1985 when Mr. Ashraf Ali had argued the matter, he had stated that the order was passed on 23‑4‑1985, but the copy was received by the appellant on 11‑5‑1985. On 16‑6‑1985 the appellant applied for certified copy of the order, which was made ready on 2‑7‑1985, but according to the appellant, it was sent by post and was received by him on 15‑7‑1985. The appeal was filed on 15‑8‑1985, although, admittedly the appeal ought to have been filed on 10‑8‑1985 according to the calculation of the appellant himself. The appellant sought to compute the time from 11‑5‑1985 when the copy of the order was received by him and wants time from 16‑6‑1985 till 15‑7‑1985 to be excluded, as time spent for obtaining the certified copy of the order. Even on this calculation, the appeal is not within time. I may further observe that from the certified copy it seems that it was made ready on 27‑5‑1985, but according to the appellant it was received on 15‑7‑1985. It is doubtful that a period of 12 days may also be excluded because, the appellant had waited for receiving the certified copy through post from the respondent No.l. It is the duty of the party to obtain certified. copy and receive it whenever it is made ready. In any event, in both the cases the appeal is not within time. The provision of section 5 of the Limitation Act does not apply because the Trade Marks Act is a special Act providing a period of limitation of two months for filing an appeal. In this regard Mr. Khawaja has referred to 1970 Law Notes 3581 a judgment of the Supreme Court and P L D 1982 SC 88. In the first case, the Court did not apply section 5 of the Limitation Act to an appeal filed under the West Pakistan Waqf Property Ordinance, 1959. In the second case, it was held that Section 5 of the Limitation Act is not applicable to appeal under the Sind Rented Premises Ordinance, 1959. To that effect are also P L D 1981 Kar. 76 and 1981 C L C 592.

It is thus clear that section 5 of the Limitation Act is not applicable to the appeal filed under the Trade Marks Act. The appeal is therefore, patently time‑barred, and is dismissed.

M. Y. H. Appeal dismissed.

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