1999 PLP 3173 (MLD)

Abdul Hameed lqbal for Petitioner. Salim Ghulam Hussain for Defendant No.

1. For hearing of C. M. A. No. 477/96 [2-3-1998]. On the last date of hearing while taking exception to the supporting affidavit filed by an associate of the law firm representing the applicant and had directed the affidavit of a person fully conversant with the facts of the case as well as notice to proposed respondents. Mr. Salim Ghulam Hussain, Advocate for present respondents points out that instead of filing an affidavit of the employee or attorney of the petitioner. Mr. Abdul Hameed lqbal has filed his own affidavit which can not be legally considered for the grant of this application. In all fairness, in each case the parties or its agent or attorney should file an affidavit in support of the case and not the counsel. I am, /a therefore, not inclined to consider the earlier as well as latest affidavit filed by the counsel and dismiss the C.M.A. for substitution of the respondent company being not maintainable at law. For hearing of main Application [25-3-1998]. This J. Miscellaneous filed under the provisions of the Trade Marks Act, 1940, seeks a direction for expunction/cancellation/removal/rectification with regard to the entry relating to trade mark "WINGS" registered under No. 82089 in class 3 in the name of respondent No. 1 in the Trade Marks register maintained by respondent No. 2 on a number of grounds.

2. Pursuant to notice of this J. Miscellaneous the Company Secretary of respondent No. 1 filed a statement in this Court that this respondent had assigned the said Trade Mark to M/s. Siza (Pvt) Ltd. vide deed of assignment. dated 20th March, 1991. In support of this assertion a copy of letter dated 16-9-1991 confirming the acceptance of assignment and recordal of subsequent proprietorship in favour of new company in the Register was produced as duly confirmed by Registrar of Trade Marks.

3. Instead of amending the J. Miscellaneous suitably and seeking remedy against new proprietor, the applicant moved C.M.A. 437/1996 seeking to substitute the new proprietor in place of respondent No. 1 without disclosing an) cause of action and amending the averments in petition. That C M.A. was supported by an affidavit of the counsel and none on behalf of the applicant company. I directed the applicant to file supporting affidavit of a person duly conversant with the facts of the case seeking an order for substitution of respondent No.

1. Although this order was passed as far back as 8-12-1997, when this C.M.A. came up before me on 3-2-1998, it was noticed that a fresh affidavit was filed by another associate of the lawyers firm appearing for the applicant with the consequence that I was obliged to dismiss the prayer as misconceived and untenable.

4. From, the records it appears that M/s. Siza (Pvt.) Ltd. are the proprietors of the Trade Mark sought to be set aside/expunged from the Register of Trade Marks. At the moment the applicant does not and in fact cannot press for any direction against respondent No. 1 in view of the position taken and the B material placed on record. In the absence of new proprietor as party to proceedings before this Court and without any cause of action against the said proprietor, no direction of the nature asked for can be issued to the Registrar Trade Marks. The application pending over 3-1/2 years is, therefore, completely misconceived and not maintainable. It is accordingly dismissed with costs. Q.M.H./M.A.K./G-66/K Application dismissed.