2013 PLP 1862 (CLD)

SHUJAAT ALI KHAN, J.

Through this single order 1 intend to dispose of this appeal as well as F.A.O. Nos.62 and 63 of 2010, both titled Messrs Gujranwala Food Industry (Pvt.) Ltd v. Messrs Coral Enterprises (Pvt.) Ltd. as common question of law is involved in all these appeals inasmuch in all these appeals order dated 12-9-2009 passed by the Registrar of Trade Marks (respondent No.2) has been impugned.

2. Briefly stated the respondent applied for registration of trade mark "ZOMBIE CHEWS" (subject matter of F.A.O. No.61 of 2010), "SHERBET SHOCKERS" (subject matter of F.A.O. No.62 of 2010) and "WICKED FIZZ" (subject matter of F.A.O. No.63 of 2010), The same was advertised by the Registrar of Trade Mark in Trade Mark Journal No.648 published in the month of January 2005 inviting objections/oppositions from the interested persons/ companies. The appellant filed Opposition No.22 of 2006 (subject matter of F.A.O. No.61 of 2010), Opposition No.158 of 2006 (subject matter of F.A.O. No.62 of 2010) and Opposition No.23 of 2006 (subject matter of F.A.O. No.63 of 2010) to which the respondent filed counter statement. The Registrar vide impugned order dated 12-9-2009 disallowed the oppositions filed by the appellant on the ground that the appellant did not file the evidence as contemplated under rule 30(6) of the Trade Marks Rules 2004; hence this appeal.

3. Learned counsel for the appellant contends that though the appellant did not file the documentary evidence within the stipulated period even then the Registrar was bound to give them an opportunity of hearing prior to passing any order against him; that the Registrar was empowered to extend the time for filing of evidence; that according to the procedure postulated under section 111(2) of the Trade Marks Ordinance, 2001, the Registrar was bound to give notice prior to passing any order against the appellant; that evidence of the appellant was available before the Registrar in connected matters therefore the impugned order is not justifiable; that letter dated 10-12-2009 affirms stance of the appellant and that the impugned order is non-speaking. In addition to his oral submissions, learned counsel has relied upon the cases reported as The Assistant Registrar of Trade Marks, Karachi v. Messrs Lakson Tobacco Company Ltd. (1992 SCMR 2323) and Universal Tobbaco (Pvt.) Ltd. and others v. Japan Tobacco Inc. and others (2003 CLD 1549).

4. Conversely, learned counsel appearing on behalf of respondent No.1 submits that the requisite notice was issued to the appellant on 30-7-2007, therefore, the objection of non-issuance of notice to the appellant is worthless; that since the application, filed by the appellant, was not published in the gazette, therefore, the Registrar has committed no illegality while passing the impugned order; that a specific procedure has been laid down under Trade Marks Rules, 2004, and if a party fails to abide by the same he is bound to suffer the consequences; that the order passed by the Registrar is unexceptionable and that the Registrar was not bound to give detailed reasoning. In support of his contentions, learned counsel has relied upon Rehmat Elahi v. Messrs Hoya Kabushiki Kaisha (PLD 1992 SC 417) and Mohsin Aziz Butt and others v. General Electric Industries and others (1988 CLC 1358).

5. I have heard learned counsel for the parties at considerable length and have also gone through the documents annexed with these appeals as well as the case-law cited at the bar. During this exercise, I have observed that the Registrar has passed a very sketchy order as the same is bereft of any reasoning. There is no cavil with the proposition that under rule 30(6) of the Trade Marks Rules, 2004, if the opposing party fails to file evidence within two months his opposition can be abandoned. However, by virtue of sub-rule (7) of the rule 30 ibid the Registrar has been vested with the power to extend the statutory period of two months for filing evidence but in the case in hand while knocking out the appellants on the basis of rule 30(6) of the Rules the Registrar has neither mentioned the reasons for not allowing the appellant the extension in time nor has detailed the causes for penal action against him. According to section 24-A of the General Clauses Act, 1897, every authority is bound to justify his decision by giving valid reasoning. Reliance in this regard is placed on the cases reported as Messrs Airport Support Services v. The Airport Manager, Quaid-e-Azam International Airport, Karachi and others (1998 SCMR 2268) and Wajid Saeed Khan v. Abdul Qadoos Khan Swati and others (2007 CLD 1239). In the former case the apex Court of the Country has inter alia held as follows:-- "The doctrine has further been recognized and augmented by the recent insertion of section 24-A in the General Clauses Act, 1897, which declares that where a statute confers a power to make any order or to give any direction to any Authority, office or person, such would be exercised reasonably', fairly, justly and for the advancement of the purpose of the enactment. What is more, the order or direction, so far as necessary or appropriate would reflect reasons for its making or issuance and, where the same is lacking, an affectee Inay demand the necessary reasons, which, in response, would be furnished." In my humble view the order impugned in these appeals being bereft of any reasoning cannot be considered as speaking one, therefore, the same cannot be allowed to hold the field even for a moment.

6. Even according to section 29(7) and (8) of the Trade Marks Ordinance, 2001, the Registrar is bound to give notice of hearing and then to decide the matter of registration of trade marks. In the matter in hand prior to taking penal action against the appellant in the shape of abandonment of its opposition no notice was ever issued by the Registrar, therefore, the impugned order is not justified. The procedure to be followed by the Registrar Trade Marks has been provided under section 111 of Ordinance, according to subsection (a) whereof the Registrar has been vested with the powers of a civil court in respect of receiving evidence, administering oaths and enforcing attendance of witnesses etc. According to subsection (2) of the said section the Registrar has been put under obligation to give notice to the party concerned prior to taking any action against it but in the present instance there is nothing on the record to show that prior to abandonment of right of the appellant, any notice was issued to it.

7. Insofar as the case-law cited by learned counsel for respondent No.1 is concerned, suffice it to observe that the same is not applicable to the facts and circumstances of present case inasmuch as in the case of Rehmat Elahi (Supra) the apex court of the country held that order of the Registrar granting extension in time is not appealable which is not the question in the instant case. Insofar as the case of Mohsin Aziz Butt and others (Supra) is concerned, I am of the humble opinion that the proposition involved was that the supporting documents cannot be used as substitute of the evidence which is also not the position in the instant case.

8. For what has been discussed above, these appeals (F.A.O. Nos.61, 62 and 63 of 2010) are allowed, the impugned order passed by respondent No.2 is set aside and the matter is remitted back to him for decision afresh after providing reasonable opportunity to the appellant to tender its evidence. KMZ/G-19/L Case remanded.