P L D 1993 Karachi 440 (PLP)

The appellant is aggrieved by the decision of learned Deputy Registrar of Trade Marks/ respondent No.1 dated 14-6-1990 Whereby he dismissed opposition proceeding No.58/88 filed by the appellant, against the registration of respondent No. 2's Trade Mark Clause 25 for the Mark 'Winner' (Label). Application No..84082 in The case of the appellant is that on 18-4-1984 he filed. an application for registration of Trade Mark 'Winner' (Label) in Clause 25 in respect of seeks in the trade mark Registry. The said application was numbered as 82679. After due process, the said application was accepted and advertised in the Trade Mark Journal, whereupon the respondent No.2 filed an opposition proceedings bearing No.51/88. Subsequently on 1-10-1984 the respondent No.2 also riled an application for registration of the said trade mark in-respect of the same goods which was numbered as 84082 and after due process, the said application was also accepted and advdrtised in the Trade Mark Journal. The appellant also filed opposition proceeding . bearing No.58/88 against the registration of respondent No.2's Trade Mark. It is contended by Mrs. Navin Merchant, learned counsel for the appellant that the grounds and facts in both the said opposition proceedings No.51/88 and 58/88 were similar and on the date of hearing by consent of the parties it was ordered that both the said -opposition proceedings be heard together but the respondent No ' .1 instead of deciding both of them by his order decided opposition proceeding bearing No.58/88 only with the result that opposition proceeding No.51/88 is still pending decision before him. Learned counsel brought to. my notice the impugned decision, dated 14-6-1990 wherein it was stated as under: "By consent of learned counsel of both the parties the decision were heard together because the evidence as well as facts if both the decision are the same." it was contended by learned counsel for the appellant that the decision suffers from an error -on the record because in view of the said consent order the learned respondent No.1 was bound to decide the earlier application, dated 18-4-1984 filed by the appellant in which the said opposition proceeding 51/88 were . filed by the respondent No.2. In support of her contentions learned counsel for the appellant placed reliance on 1986 MLD 1312, PLD 1973 Karachi 279, 1989 ALD 498, 1988 CLC 1052 and four unreported judgments bearing in Misc. Appeal No. 30/88, Misc. Appeal No.45/85, Misc. Appeal No.7/89 and Misc. Appeal No.28 of 1989: In 1986 MLD 1312 it was held that where there are more than one application of same class and same trade mark pending before Registrar, then all such applications were to be decided together to avoid conflict of decision and to do full and complete justice. In PLD 1973 Karachi 279, an application for registration of trade mark was pending and opposition filed in such proceedings was not decided and the Registrar without *waiting for decision of the objection passed order on another application for registration of trade mark. It was held that the procedure was irregular and caused prejudice. Learned counsel for respondent No.2 brought to my notice a statement filed by respondent No.2 enclosed to which is a letter from the Registrar of Trade Marks stating that he will be bound by the decision of this Court. There is nothing in the letter as to why in view of the fact that there was common evidence in both the cases and hearing of case had also taken place together, he had failed to adjudicate upon opposition proceedings No.51 of 1988. It is however candidly admitted by learned counsel for respondent No.2 that the said application for registration filed by appellant trade mark is technically pending although according to him it was disposed of by necessary implication by the impugned decision. In view of the consent order and contentions raised by the learned counsel for the appellant I set aside the decision, dated. 14-6-1990 with A direction to respondent No.1 to decide both the said applications for trade mark by a single order. H.B.T./M-1839/K