2016 PLP 1 (CLD)

IBAD-UR-REHMAN LODHI, J.

The appellant preferred the present appeal under section 96, C.P.C. challenging the order dated 29.04.2015, passed by the learned Additional District Judge, Rawalpindi, whereby the plaint of the suit of the present appellant filed under section 60 of Patents Ordinance, 2000 (LXI of 2000) was rejected.

2. At the very outset of the hearing, learned counsel for the appellant was asked to show the maintainability of present appeal under section 96 of C.P.C. from an order made by the learned trial court in a suit for infringement of patent filed under Section 60 of Patents Ordinance, 2000 (LXI of 2000) (hereinafter to be referred as the Ordinance), the learned counsel in response by referring different provisions of C.P.C. and Civil Courts Ordinance, 1962, attempted to argue that since no other remedies are provided from an order passed by the learned trial court in a suit filed under section 60 of the Ordinance, as such, remedy of appeal provided in general law of C.P.C. would be available to the appellant.

3. Responding to such contentions of learned counsel for the appellant, the respondent took a plea that since no appeal from the order passed by the learned trial court in a suit for infringement of patent filed under section 60 of the Ordinance is provided in the Special Law i.e. Ordinance, therefore, by inference, no remedy is to be made available to any aggrieved person from such order.

4. We have heard the learned counsel for the parties and with their assistance have gone through the record.

5. For convenience section 96, C.P.C. is reproduced herein below:- "Appeal from original decree

(1) Save where otherwise expressly provided in the body of this Code or by any other law for the time being in force, an appeal shall lie from every decree passed by any Court exercising original jurisdiction to the Court authorized to hear appeals from the decisions of such Court. (2) An appeal may lie from an original decree passed ex parte. (3) No appeal shall lie from a decree passed by the Court with consent of parties." From the perusal of above provision of law, it is crystal clear that appeal under said provision of law is available against a decree passed by the Courts subordinate to such Appellate Court performing its function under C.P.C.

6. In view of the provisions of sections 60 and 61 of the Ordinance, the learned trial court is competent to pass an order but no decree is required to be passed by the trial court trying a suit under the Special Law i.e. Ordinance 2000. It is noted that in the Ordinance to regulate the proceedings of trial no procedural law has been made applicable including the Code of Civil Procedure, 1908. The remedy of appeals, no doubt, has been provided in Chapter XVIII of the Ordinance, but such appeal is restricted only from any decision, order or direction of the "Controller" or, as the case may be, the Federal Government under any of the provisions of the Ordinance. No appeal is provided by means of said Chapter from any order passed by the learned District Judge in its capacity of trial court before any forum.

7. Trade Marks Ordinance, 2001 (XIX of 2001) can be referred as a example, wherein by virtue of Section 114 (3), the provisions of the Code of Civil Procedure, 1908 (Act V of 1908) are made applicable to appeal before the High Court or a District Court under the said Ordinance, whereas, unlike such Trade Marks Ordinance, no such provision has been made in the Patents Ordinance, 2000, whereby the provision of any law including C.P.C. has been made applicable for the purpose of regulating the proceedings of suit or appeal under the Ordinance.

8. In case of Pakistan through Military Estate Officer, Kharian Cantt. and another v. Abdul Hayee Khan through Legal Heirs and 5 others (PLD 1995 Supreme Court 418), while placing reliance on the case of ICI Pakistan Limited v. Salahuddin and others (1991 SCMR 50), it is held that it is trite law that right of appeal is a creation of Statute. If it does not confer, none has it. Invasive provisions over the rights of citizens have to be construed strictly. This is axiomatic. Similarly, Apex Court in case of Chairman, Central Board of Revenue, Islamabad and 3 others v. Messrs Pak Saudi Fertilizer Ltd. and another (2001 SCMR 777) has held that right of appeal is a creation of Statute and there can be no right of appeal unless it is conferred by the Statute. A Division Bench of this Court in case of Government of Pakistan through Secretary Ministry of Interior, Islamabad v. Dr. Abdul Qadeer Khan (2010 MLD 533) has given a view that the right of appeal is a right, which is always the creation of a particular Statute dealing with the matter, and it can only be availed of where it is expressly granted by the law, and there is no concept of an inherent right of appeal exercisable by a party consequent upon the judgment or order or decree.

9. The Courts are not empowered to legislate, but their function is to interpret the legislation made by the legislature. A right, which has not been provided in a Statute by the legislature, cannot be incorporated by the Courts while adopting the role of legislatures. After going through the provisions of Ordinance, we are of the considered view that no remedy of appeal has been made available to a person aggrieved from any order passed by the learned trial court exercising jurisdiction under section 60 of the Ordinance and as such, any person feeling himself aggrieved of an order passed by District Judge in a suit under section 60 of the Ordinance is not competent to avail the remedy of an appeal under section 96, C.P.C.

10. The result of above discussion is that the appeal filed by the appellant is not competent and the same is therefore dismissed. SL/M-283/L Appeal dismissed.