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Judicial Miscellaneous No. 4 of 1980, decided on 9th October, 1986.

‑‑‑0. IX, R. 13‑‑Trade Marks Act (V of 1940), Ss. 22 & 46‑‑Limitation Act (IX of 1908), Arts. 164 & 181‑‑Ex parte order passed in rectification proceedings setting, aside of‑‑Limitation‑‑For setting aside of ex parte order passed in rectification proceedings under Trade Marks Act, 1940, Art. 181 of Limitation Act, 1908, held, would be applicable wherein limitation prescribed was three years from date of accrual of cause of

action.

Mst. Afzal Begum v. Y.M.C.A. P L D 1979 S C 18 ref.

‑‑‑0. V, R. 20 & O.IX, R. 13‑‑Substituted service‑‑Effect‑‑Order for substituted service on respondent not based on sufficient ground‑‑Ex parte order passed on basis of such substituted service was set aside.

‑‑‑S. 12(2) & 0. IX, R. 13‑‑Ex parte order, setting aside of‑‑Effect‑ Where Court had allowed application under 0. IX , R. 13, C.P.C. and set aside ex parte order, application filed by respondent under S. 12(2), C.P.C. held, would be infructuous and liable to be dismissed.

Hassan Mahmood for Applicant.

Khalil Qazilbash for Respondents.

Date of hearing: 9th October, 1986.

This application under Order IX, Rule 13 read with section 151, C.P. C. has been filed by respondent No.l for setting aside the ex parte order, dated 28‑4‑1981, passed by me in the rectification proceedings instituted by the applicant for removal of trade mark No.65240 in Class 10. In the affidavit filed in support of the application, respondent No.l has stated that the orders for substituted service in the case were obtained fraudulently on a wrong report submitted by the Bailiff that respondent No.l has refused to accept the service of the summons/notices issued by this Court. The learned Advocate, appearing for respondent No.l, has also filed his personal affidavit, stating that he came to know about the ex parte order passed by this Court on 28‑6‑1981, while he was going to attend a case of respondent No.l before the Registrar, and he was informed by another counsel about the ex parte order. The ex parte order in this case was passed on 28‑4‑1981, and the application for setting aside the said order has been filed by respondent No.l on 30th June, 1981. No personal service has been affected on respondent No.l, in the case, and it is evident from the reports of the Bailiff, dated 6‑10‑1980 and 25‑10‑1980, on record that, when the notices were taken for personal service on respondent No.l, the bailiff was informed that respondent No.l had proceeded on Hajj. However, the Bailiff's report, dated 29‑11‑1980, shows that the bailiff attempted to serve the notice on respondent No. 1, on 13th, 22nd and 26th of November, 1980, and on the last mentioned date, the respondent No,l, who was present, refused to accept the notice. In the same report, it is stated by the Bailiff that, when he had gone for service of the summons and notices on respondent No.l, he was told by Abdullah, son of respondent No. 1, that respondent No.l was not present. The respondent No.l has produced the original passport in this case, showing that both the respondent No.l and his son Abdullah were away to Hajj between 6th of October, 1980 and 26th of November, 1980. In these circumstances, the Bailiff's report, dated 29‑11‑1980, submitted in the case, is obviously not correct. It was on the basis of this report that an order for publication of the summons and pasting thereof was made by the Court, and, from the Bailiff's report it does not appear that the pasting was done in accordance with the law on the last known address of respondent No.1, as no witnesses were obtained on the summons at the time of pasting of the summons The respondent No. 1 has denied that he was aware of the proceedings and he has stated that the newspapers, in which the summons were Established had limited circulation, and he did not read them. Mr. Hassar Mahmood, learned counsel for the petitioner, has opposed the grant of the application, and has asserted that the application having been made their thirty days of the expiry of the date of order passed in the case beyond time. The learned counsel for the respondent has invited m3 attention to the case of Mst. Afzal Begum v. Y.M.C.A. P L D 1975 18, in which, after review of case‑law on the subject, it is held at Article 164 of the Limitation Act, in its application, is limited only the proceedings in a suit and to an application moved by the present proceedings are neither by way of a suit not an application of setting aside the decree has been moved but the defendant. The present application under section 46 read with section 22 of the Trade Marks Act is registered as a judicial miscellaneous application. In these circumstances, I am of the view that the residuary Article 181 of the Limitation Act is applicable in the case and the limitation prescribed for making such an application is three years from the date of the accrual of the cause of action. I accordingly held that the application, dated 30th of June, 1981 filed by respondent No.l for setting aside the ex parte decree is within time. As the order for substituted service on respondent No.l was not based on sufficient ground, I am inclined to accept the application under Order IX, Rule 13, C.P.C. and grant the same. The order, dated 28‑4‑1981, accordingly recalled and the proceedings will start from the stage o1 filing of a reply by respondent No.l to the above application. The respondent No.l will however, pay cost of Rs.500 to the applicant. In view of the fact that I have allowed the application under Order IX, Rule 13, application under section 12(2), C.P.C. filed by respondent No.l has become infructuous and is accordingly dismissed. Further proceedings in the case will take place before the Registrar, and, after the case is ripe, it will be placed in Court.

H.B.T. Ex parte order set aside.

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