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Miscellaneous Appeal No.56 of 1980, decided on 12th February, 1987.

---S.76--Trade Marks Rules, 1963, R.84 [as substituted by S.R.O. 507(1)/77, dated 11-6-1977]--Limitation Act (IX of 1908), Ss.12 & 29--Appeal against decision of Registrar, Trade Marks--Limitation- Computation of period before and after substitution of R.84--Original Rule 84 before substitution provided period of four years for filing of appeal against decision of Registrar, Trade Marks but by substituted Rule such appeal could be filed within two months--Original Rule provided for exclusion of time taken for obtaining copies of decision of Registrar for purpose of computing period of limitation but in substituted Rule such provision stood deleted--Time spent in obtaining copies etc., however, would still be excluded under S.12, Limitation Act, 1908 which would be, held, applicable in view of S.29 thereof.

--Ss.76 & 78--Trade Marks Rules 1963, R.84--Limitation Act (IX of 1908), S.12--Appeal against decision of Registrar, Trade Marks- Limitation--Computation of period--Appeal filed against decision of Registrar after a lapse of 127 days--Decision of Registrar announced on a specified date was notified to parties after three weeks of announcement thereof--After obtaining copy of such decision total admitted period which was to be excluded would come up to 63 days- After exclusion of such period from the period taken by appellant from date of announcement to date of filing of appeal, such appeal, held, was still time-barred--Appeal was dismissed as time-barred in circumstances.

1973 S C M R 555 and P L D 1960 Lah. 443 distinguished.

Khawaja Mansoor for Appellant.

Ashraf Ayoob for Respondents.

Date of hearing: 1st and 4th February, 1987.

This appeal was dismissed by one today by a short order the reasons for which were to be recorded later as a preliminary objection was raised by Mr. Ashraf Ayoob, learned counsel for the respondent that this appeal was time barred. The following are the reasons therefor.

Assistant Registrar, Trade Marks Karachi allowed the application of the respondent in the case, who was trading in the name of Pakistan Sewing Machine Industries and Sheba Sewing Machine Industries, for registration of Trade Mark "TOSHIBA".' This order was passed by the learned Assistant Registrar on 2-1-1980 and the same was notified to the appellants who were the opposite party in the case before the learned Assistant Registrar, under rule 78 of the Revised' Trade Mark Rules, 1963 by letter, dated 24-1-1980 which admittedly was received by the appellants on 26-1-1980. Thereafter, the appellants applied to the office of the Assistant Registrar for a copy of the decision on 2-2-1980 and the copy which was made ready on 10-3-1980 was delivered to the appellants on 11-3-1980. After delivery of such copy to the appellants the office of the Assistant Registrar, it seems, sent another copy of the decision to their Advocates, Messrs Vellani & Vellani, Advocates, Karachi together with a letter, dated 12-3-1980 which read as under:-

No. TMOPP.69/73/7113/80 TMR-4

Government of Pakistan,

Trade Narks Registry,

67-Muslimabad,

Karachi the 12-3-1980.

From

The Registrar of Trade Marks,

Karachi.

To

Messrs Vellani & Vellani, Advocate

Karachi.

Subject: OPPOSITION No.69/73 TO APPLICATION No.54925 IN CLASS-7 BY 55128 & OTHERS

Sir/Gentlemen,

With reference to your request on form TM-46, dated 2-2-1980 on the subject noted as above, I have the honour to enclose herewith a certified copy of Assistant Registrar (1)s order, dated 2-1-1980 as requested by you.

Yours obedient servant,

Sd/-

Encl: As above. for REGISTRAR OF TRADE MARKS.

This letter and the copy of the decision admittedly were received by the appellants on 17-3-1980 and thereafter, the present appeal was filed in this Court on 8-5-1980.

At the very outset Mr. Ashraf Ayub, learned counsel for the respondent raised a preliminary objection that the appeal on the face of it was time-barred. It may be pointed out that section 76 of the Trade Marks Act, 1940 provides for filing of appeals against any decision of the Registrar before the High Court as follows:-

"76-(1) Save as otherwise expressly provided in this Act, an appeal shall lie, within the period prescribed by the (Federal 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 proceeding concerning the Trade Mark in question is pending before a High Court or a District Court, the appeal shall be made to that High Court or, as the case may be, to the High Court within whose jurisdiction that District Court is situated.

* * * * * * * * *

(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".

The period of limitation as provided by rule 84 of the aforesaid rules is two months from the date of the decision. Rule 84 may be reproduced for convenience of reference as follows:-

"84.

.--An appeal to a High Court from any decision of the Registrar under the Act or these rules, shall be made within two months from the date of such decision."

It may be pointed out that rule 84 as it stands at present was substituted in place of the original rule, 84 by S.R.O. 507(1)/77, dated 11-6-1977 and according to the original rule the period of limitation provided for the purpose of filing of the appeal was four years. Furthermore, the original rule 84 also provided for exclusion of the time taken for obtaining copies of the decision of the Registrar for the purposes of computing the period of limitation but in the new rule such provisions were deleted. However, in view of the said amendment, there was no contest on the point that the time requisite for obtaining copy of the decision appealed against is still to be excluded, but now the same is to be done in accordance with the provisions of section 12 of the Limitation Act which have now become applicable by virtue of section 29 of the same Act. Both section 12 and section 29 may be reproduced as follows:-

"12-(1) In computing the period of Limitation prescribed for any suit, appeal or application, the day from which such period is to be recknoned shall be excluded.

(2) In computing the period of Limitation prescribed for an appeal, an application for leave to appeal' and an application for a review of judgment, the day on which the judgment complained of was pronounced the time requisite for obtaining a copy of the decree, sentence or order appealed from or sought to be reviewed, shall be excluded.

(3) Where a decree is appealed from or sought to be reviewed, the time requisite for obtaining a copy of the judgment on which it is founded shall also be excluded.

(4) In computing the period of limitation prescribed for an application 'to set aside an award, the time requisite for obtaining a copy of the award shall be excluded."

'29(1) Nothing in this Act shall affect section 25 of the Contract Act, 1872.

(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, and for the purpose of determining any period of limitation prescribed for any such, appeal or application by any special or local law--

(a) the provisions contained in sections 4, section 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; and

(b) the remaining provisions of this Act shall not apply.

(3) Nothing in this Act shall apply to suits under the Divorce Act (IV of 1969).

(4) Sections 26 and 27 and the definition of "easement" in section 2 shall not apply to cases arising in territories to which the Easements Act (V of 1882), may for the time being extend."

Now since the present appeal was filed on 8-5-1980 against the decision of the Assistant Registrar which was given on 2-1-1980, the time which elapsed between the date of the decision and filing of the appeal was 127 days. According to subsection (2) of section 12 of the Limitation Act the day on which the decision was announced and the time requisite for obtaining copy of such decision is to be excluded. It is noteworthy here that although the decision given by the Assistant Registrar was dated 2-1-1980 but the same was notified to the learned Advocates of the appellant by letter, dated 24-1-1980 which was received by them on 26-1-1980. This was also in compliance with rule 78 which provides that "a decision of the Registrar . . . . shall be notified to the person affected.' Accordingly while computing the period of Limitation time spent from 2-1-1980 to 26-1-1980 i.e. 25 days is to be first excluded. Then according to the admitted facts, the appellant applied for copy of the decision. on 2-2-1980 which was made ready on 10-3-1980 and delivered to them on 11-3-1980, i.e. after a .lapse of 38 days. In view of such circumstances a total of 63 days is to be excluded while reckoning the period of Limitation. How ever, Mr. Khawaja Mansoor, learned counsel for the appellant argued with all the venemence at his command that the decision was not notified to the appellant by letter, dated 14-1-1980 but according to him the same was notified to the appellant on 17-3-1980 and, therefore, the appeal was in time. He has also disputed the fact that the copy of the decision of the learned Assistant Registrar was delivered the appellant on 11-3-1980 since according to the learned counsel the copy of the decision was received by the appellant, as indicated by letter, dated 12-3-1980, on 17-3-1980. As far as this letter is concerned there is no doubt that the same indicates that a copy of the order, dated 2-1-1980 had been received by the appellant on 17-3-1980, but the certified copy of the decision which has been filed with the memo of appeal clearly indicates that the same had been applied for by the appellants earlier and had been taken delivery of by them on 11-3-1980. Since, this copy has been filed by the appellants themselves, it is hard for me to now accept the contention of Mr. Khawaja Mansoor that it was the second letter, dated 12-3-1980 which gave intimation the appellants in respect of the decision as contemplated by rule 78. Moreover, rule 78 contemplates sending of intimation to the parties concerned by the Registrar .in respect of his decision only once and such intimation appears to have been received by the appellants by the first letter, dated 24-1-1980. Even a cursory look at the letter, dated 24-1-1980 filed with this appeal as Annexure B clearly shows that the same had purportedly been sent by the office of the learned Assistant Registrar to the appellants in compliance with the provisions of rule 78 of the Trade Marks Rules. Therefore, the second letter which was received by the appellants on 17-3-1980 alongwith another copy of the decision clearly was not under the provisions of rule 78, otherwise I am certain, the appellants would not have applied to the office of the Registrar for a certified copy of the decision themselves. The contention of Mr. Khawaja Mansoor is, therefore, repelled,

Another contention raised by Mr. Khawaja Mansoor was that although as indicated by the endorsement made on the certified copy of the decision, the same was made ready on 10-3-1980 but, thereafter, admittedly no intimation was given to the appellants that the same had been prepared by the office, therefore, according to the learned counsel, the period of limitation could not be reckoned from 10-3-1980. Reliance in this respect was placed on 1973 S C M R 555 and P L D 1950 Lah. 443. In the first case, intimation was not given to the party in regard to the preparation of the copy of the judgment as required by the Sind Civil Court Rules. It was consequently, held, by the Supreme Court that the additional period taken by the party for obtaining delivery of the copy after it was lying ready in the office of the Court was also to be excluded under section 12 of the r Limitation Act. In the second case, the party was not informed in respect of the date of preparation of the copy of judgment and consequently, the entire time taken for obtaining the copy was excluded by the Lahore High Court. However, both these judgments are distinguishable as according to the endorsement made on the certified copy of the decision, the appellants themselves went and took delivery thereof on 11-3-1980. In view of such circumstances the second contention of Mr. Khawaja Mansoor also appears to be devoid of force.

Lastly, it was argued by Mr. Khawaja Mansoor that according to the practice prevailing in the Registrar's office certified copies of decisions are sent to the parties concerned either by post or the same are personally delivered. The period of limitation, according to the counsel, is to be computed thereafter. An affidavit has also been -filed by the learned counsel to that effect. However, the contention is not tenable in view of the circumstances discussed above. Moreover, admittedly, section 5 of the Limitation Act not being applicable to the present case, the circumstances stated do not come to the aid of the appellant in any manner. No doubt, the delay in filing of the appeal is only of a few days but even a day's delay can be fatal for the case of the appellants.

Now as indicated above the time taken by the appellant for filing the present appeal was 127 days and the total time requisite for obtaining copies was 63 days, and if such time is excluded then still the appeal is time-barred.

For the aforesaid reasons, I accept the preliminary objection raised by Mr. Ashraf Ayoob and dismiss this appeal with costs. Under such circumstances, it will not be necessary for me to go into the merits of the case.

A.A./T-4/K Appeal dismissed.

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