P L D 1968 Karachi 363 (PLP)

Date of hearing: 7th November 1967. This appeal has been filed against the order of the Registrar of Trade Marks, dated the 8th of March 1965. The concluding portion of that order is as follows :‑

" I think in the peculiar circumstances of the case it would be advisable to ask the opponents to obtain clear orders from the High Court regarding cancellation of the registration of the applicants' mark before the present proceedings can be allowed to proceed any further, and I order accordingly." In the above order it is presumed that the order of this Court is so vague that it cannot be acted upon without further clarifica tion, I, therefore, enquired from counsel for the parties who appeared in these proceedings on the 12th of October 1967, as to what ambiguity was felt by them. They replied that they felt no such difficulty. I enquired from them as to what was the provision under which the Registrar could make an order of the nature quoted above. They were unable to point out any such provision. I, therefore, ordered the Registrar to be personally present, who is present today.

2. I have enquired from the Registrar as to under what provision of law he directed that clarification of this Court's order be obtained. He is not able to point out any such provision, but says that there is no case like this in the history of registration, therefore, he has made the order In other words he did not know how to solve the problem but this admission as an explanation is puerile. If he could not se his way, then the course rightly open to him was not to shift his responsibility by seeing in this Court's order an ambiguity which did not exist. Impertinence was not a decent way out. I, however, take a lenient view of this conduct.

3. The impasse which according to the Registrar existed was simply that the Assistant Registrar had held that the present appellants had abandoned opposition. Against that order the, had come in appeal to this Court. Their appeal was accept but when they went back to the registration office, they were informed that, owing to the absence of a stay order by this Court, the trade‑mark of the respondents had been registered. In these circumstances, a stand taken was that the present appellants had to apply for rectification of the trade‑mark register, and the Registrar ordered that clarification of the order of Court be obtained.

4. The above situation shows that the trade marks registry proceeded to carry to its conclusion the order of the Assistant Registrar that opposition had been abandoned. Had the Assistant Registrar not held so, there was no possibility of the Registrar ordering that the trade‑mark be registered. His order is thus a consequence of the order of the Assistant Registrar. Now that the order of the Assistant Registrar had been set aside, the consequential order cannot stand. The reason is that an appealable order cannot escape the consequences of appeal merely because it has been acted upon. In this connection I may refer to a judgment of this Court for which I am Responsible but which has been upheld in appeal. It was delivered in The Province of West Pakistan v. Muhammad Juman (P L D 1960 Kar. 908). A question had arisen in it as to whether a "grant" made by a Revenue Officer which was acted upon by executing contracts, when set aside in appeal, affects those contracts or not. The relevant portion of that judgment is as follows :‑

"If it (i.e. the order) was appealable and an appeal was preferred in accordance with the provisions of law, within the time prescribed for it, then it could not cease to be appealable merely by the reason that it had been acted upon."

5. Mr. Muzaffar Hasan said that the order of this Court was conditional on payment of costs within a month's time and that the present appellants have gone in Letters Patent Appeal against it and obtained a stay order ; they have thus not paid, the amount within time. Mr. E. A. Nomani has explained that the appellate order affects the withdrawal of money from the Court, and not its deposit in it. He says that to the best of his recollection the money has been deposited in Court within time. The Advocates are not certain of the date on which the deposit was made. This, however, is a separate question from the ambiguity of the order. Mr. Muzaffar Hasan agrees with this, but says that the chances of his side taking advantage of the failure to strictly comply with the order may not be marred. He is right in taking this stand, but it is obvious that such objections as may be available as a result of failure to strictly comply with the order, are open to his side.

6. In conclusion, the order of the Registrar of Trade Marks dated the 8th of March 1965, is set aside, and he is directed to keep in mind his duty, apply himself to his task and proceed with the matter in accordance with law. C. M.S. Order set aside.