' This appeal is filed under section 76 of the Trade Marks Act, 1940, against an ex parte order dated 31-12-2001 passed by the Registrar of Trade Marks. Whereby certain Trade Marks specified in his order and more specifically pertained to "King Toka" was recorded in the exclusive name of the respondent Ch. Shaukat Ali. It is said that this entry of assignment had been procured through submission of fraudulent documents and through suppression of material circumstances which have been elaborated in the appeal itself.
2. Muhammad Younas, the appellant, and Ch. Shaukat Ali, the respondents, are brotheRs, Both are sons of Ch. Ghulam Qadir, and' the admitted position is that they became partners in the firm named Messrs Punjab Engineering Company (Ltd.), Samundri Road, Faisalabad. Which firm had also been re-constituted from what it existed in the past. Ch. Ghulam Qadir had expired leaving behind the appellant and the respondent and some other heiRs, There are multiple disputes in the Civil Court under Trade Marks Act etc., now pending inter se the parties. The fact, whether the Partnership Deed which came about on 7-12-1978 stood dissolved because of a Dissolution Deed dated 1-7-1989 while Ch. Ghulam Qadir, their father, was still alive, is also under dispute.
3. Precisely, for purposes of disposal of this appeal, it may be said that Ch. Shaukat Ali made an application to the Registrar Trade Marks for assignment of a trade mark particularly the trade mark 'King Toka' on his name because of alleged settlement inter se the proprietors of the trade mark.
4. A perusal of the order-sheet reflects that on the basis of his application, a notice of hearing was issued in the name of the present appellant Muhammad Younas on 7-11-2001 for 29-11-2001 asking him to submit his claim of ownership along*ith supporting evidence. As no one appeared on 29-11- 2001, the order sheet of 4-12-2001 reads as follows:-- "No one appeared on 29-11-2001. Please issue notice of hearing to Mr. Younas third partner as final to be heard on 22-12-2001. Please send the notice by UMS/ Regd. Post."
5. Notice, however, was returned by the Postal Authorities unserved on Muhammad Younas.
Therefore, a report was made to the Registrar and he signed the same on 26-12-2001. The report says:-- "As per order of the DR on pre-page the hearing notice was sent to Ch. Muhammad Younas by UMS. But the postal authority has returned the said notice to this office with the remarks that {{URDU TEXT}}If approved, further order may please be passed."
6. It is on 29-12-2001 that the Registrar passed the following order:- "Mr. Aqil Shah, Advocate present. The other side not present. Notices were issued to the third partner Chaudhry Younas for appearing in person and contest the case but he failed despite sufficient and was reluctant to receive the notice of hearing.
' In the above stated situation, no option is left except to allow TM24 dated 3-10-2001 in the light of compromise agreement dated 1-7-1989 wherein Chaudhry Younas relinquished his rights for trade mark in favour of the applicant.
' I hereby allow TM24 dated 3-10-2001."
7. And as a sequel to it, an order dated 31-10-2001 was passed in the following words by the Registrar of Trade Marks:-- "With reference to your request on Form TM-24 dated 2-10-2001, in the above matter, I have the honour to state that the same has been allowed and Chaudhry Shaukat Ali, Trading as: M/s. Punjab Engineering Company, Sole Proprietor Pakistani National, Samundri Road, Faisalabad, Pakistan has accordingly been registered as subsequent proprietor of the above noted trade marks with effect from 1st July, 1989."
' This is the order now being impugned.
8. The appellant states that he got no information of this order and it was on 9-5-2002 that he acquired the knowledge about the passing of this order and he applied for a certified copy which was given to him on 10-5-2002.
9. There were two objections which came from the respondent's side against the maintainability of the appeal. It was firstly, stated that the appeal was time-barred having been filed beyond the period of two months as prescribed by rule 84 of the Trade Marks Rules, 1963. It was further stated that section 5 of the Limitation Act was not applicable to the present case and referred to the findings in the case of Arshad Naseem v. The Registrar of Trade Marks and another (1988 CLC 262).
The second objection was that a certified copy of the judgment and decree having not been attached particularly of the decree, the appeal was not maintainable.
10. On behalf of the appellant, it was said that the date for filing of the appeal shall commence from the date of knowledge and as the appellant had no knowledge of the ex parte order which had been procured surreptitiously it will start from such date of knowledge i.e. 10-5-2002. The appeal was within time having been filed on 26-6-2002.
11. Learned counsel for the respondent in support of his contention, refers to Annexure R/29 attached to his written statement and states that the appellant had in fact applied for certified copy on the 26th March, 2002, and he attached herewith the certified copy of his application.
12. The learned counsel for the appellant explained that the application of March had been made for a different purpose. And that the application for obtaining certified copy of the impugned order was a different application which was made on the 9th of May, 2002. In support of his contention, the learned counsel for the appellant placed on record a memo. Issued by the office of the Trade Marks Registry at Karachi alongwith the Annexures which shows his request for the copies on Form TM-24. These documents do not show the impugned order. Therefore, the objection of the learned counsel on basis of Annexure R/29 that he had obtained a copy of the impugned order on 28th March, 2002, is without basis.
13. We are now left with the second objection to the effect whether the appeal ought to have been accompanied with a certified copy or not.
14. It is the contention of the learned counsel for the respondent that an appeal under section 76 of the Trade Marks Act, 1940, is to be treated alike the appeal under Order XLI of the Civil Procedure Code, which reads as follows:-- ' "Form of appeal. What to accompany memorandum.---(1) Every appeal shall be preferred in the form of a memorandum signed by the appellant or his pleader and presented to the Court or to such officer as it appoints in this behalf. The memorandum shall be accompanied by a copy of the decree appealed from and (unless the Appellate Court dispenses therewith) of the judgment on which it is founded.
' Contents of memorandum.---(2) The memorandum shall set forth, concisely and under distinct heads, the grounds of objection to the decree appealed from without any , argument or narrative; and such grounds shall be numbered consecutively."
15. What has happened in this case is that the learned counsel for the appellant has attached attested copies of the certified copies with the appeal and the later he provided while the case was being heard in the month of April, 2003, and advanced the contention that it was on account of inadvertence and not with a desire to suppress the fact that he was unable to append the copies alongwith the appeal although he had obtained the copies. That this was a special law where no decree is to, be drawn and, therefore, the provisions of Order XLI, rule 1, C.P.C. Were not to be applied stringently.
16. Section 76 of the Trade Marks Act of 1940 relates to appeals. Which merely says that an appeal from a decision of the Registrar is to lie to the High Court and further says that subject to the provisions of the Act and of the Rules, the provisions of the Civil Procedure Code, 1908, were to apply to appeals before a High Court under the Act.
17. Section 76 of the Act empowers a High Court to make rules for conducting the proceedings before the said Court under the Act.
18. The High Court Rules and Orders reflected in Volume V, Chapter VII, relate to the rules made under the Trade Marks Act, 1940 and Rule 11 states that in a case not provided for in the forgoing rules, the provisions of the Code of Civil Procedure, 1908, were to be applied mutatis mutandis to all proceedings under the Act. The Act also authorizes the Federal Government under section 84 of the Act, to 'make rules and these rules are called as Trade Marks Rules of 1963.
19. Rule 78 reads as follows:-- "Notification of decision.---The decision of the Registrar in the exercise of any discretionary power given to him by the Act or these rules shall be notified to the person affected."
20. Rule 38 does provide for a notice of hearing arguments and reads as follows:-- ' "Notice for hearingarguments.---The Registrar shall give notice to the parties of a date when he will hear the arguments in the case. Such appointment shall be for a date at least one month after the date of the notice, unless the parties consent to a shorter notice. Within fourteen days from receipt of the notice any party who intends to appear shall so notify the Registrar on Form TM-7.
Any party who does not so notify the Registrar within the time last aforesaid, may be treated as not desiring to be heard and the Registrar may act accordingly."
' Although this relates to a notice of opposition but provides a guidance in respect of adjournment in such-like cases. Incidentally, it may be mentioned that the notices given were shorter than a month. As section 76 of the Trade Marks Act, 1940, does not require the filing of a certified copy of the decision of the Registrar and the rules too are not explicit about it, we cannot enforce the provisions of Order XLI, rule 1 stringently and are left to follow the provisions of the Civil Procedure Code principally.
21. Obviously, no decree is to be drawn in respect of an order of the Registrar and the order itself is executable as a decree of a Civil Court. Yet it will not be a decree in the sense of Order XLI and there is no compulsion of appending a copy of it with the appeal. But the appeal has to be accompanied by an impugned order and when we speak of the order, it implies its certified copy. Reference in this connection may be made to the following cases: (1) Riasat Ali Khan v. Mehfooz Ali Khan and others (AIR 1929 Lahore 771) and (2) Riasat Ali v. Muhammad Jafar Khan and 2 others (1991 SCMR 496).
22. The order sheet of this Court reflects that on 7-1-2002 this appeal was admitted to a regular hearing and notice was issued to the other side. However, the office objection was sustained which merely said that the copy of the impugned order was to be attached. Under these circumstances, it will be a proper implication that the filing of the certified copy of the order was dispensed and it had to be placed before the Court later on. The Court may expressly or impliedly dispense with the filing of the copy of the judgment and in this connection, reference may be made to the following cases: (1) Swar Khan and 2 others v. Noor Alam and another (1985 CLC 1082), (2) Sarat Chandra Nag v. Rati Kanta Polley and others (AIR 1939 Calcutta 711), (2) G.I.P. Railway Co. v. Radhakisan Jaikisan and another (AIR 1926 Nagpur 57), (3) Messrs Yasin Sons Ltd., Multan v. The Water and Power Development Authority, West Pakistan, Lahore and 4 others (PLD 1977 Lahore 937), (4) Mst.
Safia Begum v. Taj Din and 2 others (1993 SCMR 882), (5) Riasat Ali v. Muhammad Jafar Khan and 2 others (1991 SCMR 496), (6) Rana Allah Ditta v. Muhammad Shafi and others (1990 MLD 2094), and
(7) Ghulam Rasool and 5 others v. Allah Bachaya and others (1985 SCMR 416).
23. Reference may also be made to the following case-law for the strength of this view: (1) Baseer Ahmad Siddiqi v. Shama Affoz (1988 SCMR 892), (2) Kabir Khan and others v. Mst. Raj Bibi and others (1991 CLC 858), (3) Saida and 4 others 'v. Kala and 2 others (1990 MLD 1189), (4) Jagat Dhish Bhargava v. Jawahar Lal Bhargava and others (AIR 1961 SC 832), and (5) Mst. Khurshid Bibi and another v. Ahmad and 2 others (PLD 1979 Lahore 846).
24. The objection, therefore, raised by the learned counsel for the respondent, under these circumstances, is rendered more of technical nature after the appeal was admitted. Besides, this Court, therefore, would not like to turn down the appeal and after having heard it on such a technical ground.
25. A further reference may be made to section 70 of the Trade Marks Act, 1940, which reads as follows:-- "Procedure before the Registrar.---In all proceedings under this Act before the Registrar:--
(a) the Registrar shall have all the powers of a Civil Court for the purposes of receiving evidence, administering oaths, enforcing the attendance of witnesses, compelling the discovery and production of documents and issuing commissions for the examination of witnesses;
(b) evidence shall be given by affidavit, provided that the Registrar may, if he thinks fit, take oral evidence in lieu of, or in addition to such evidence by affidavit;
(c) the Registrar shall not exercise any power vested in him by this Act or Rules made thereunder adversely to any party duly appearing before him without (if required in writing within the prescribed time so to do) giving such party an opportunity of being heard;
(d) the Registrar, may, save as otherwise expressly provided in this Act, and subject to any Rules made in this behalf under section 84, make such orders as to costs as he considers reasonable, and any such order shall be executable as a decree of a Civil Court."
' Note.---The emphasis is made on the above paragraph "(c)" through underlines by us.
26. The provisions of section 70 of the Trade Marks Act, 1940, reflect that a Registrar has not to act perfunctorily in the absence of a party, rather he has to exert himself with respect to service of a notice on the other party so that all parties were heard before a decision is given. We find that merely on the return of the notice un-served and that too only once the Registrar acted on the report of his office and passed the ex parte order without preserving to complete the service by using other modes or publishing a citation in the newspaper for substituted service envisaged by the Civil Procedure Code.
27. As the provisions of Civil Procedure Code are made applicable in cases where the Act itself or the Rules made thereunder do not say otherwise, the provisions of Order V as far as possible would be applicable in such cases.
28. As the service in this connection was through post, Order V, rule 10-A was very much applicable.
This reads follows:-- "Service by post.---(1) Simultaneously with the issue of summons under rule 9, there shall be sent, unless otherwise ordered by the Court, to the defendant, by registered post, acknowledgment due, another copy of the summons signed and sealed in the manner provided in rule 10.
(2) An acknowledgment purporting to be signed by the defendant of the receipt of the registered communication or an endorsement by a postal employee that the defendant refused to take delivery of the same shall, be deemed by the Court issuing the summons to be prima facie proof of service by summons."
' We do not find any endorsement of refusal nor an acknowledgment of service on back of the postal receipts, as envisaged by rule 10-A. In case of refusal, the provisions of Order V, rule 17 read with the provisions of rules 18 and 19 which required the affixation of a copy of the summons on the outer door or other conspicuous part of the house of the respondent, will apply which also required a serving officer to make an endorsement of having affixed the summons at the time and place endorsed by him at the back of the summons.
29. Where there is a note about the refusal, the serving officer is to be examined. And last of all the Civil Procedure Code provides substituted service as laid down in Order V, rule 20.
30. All these legal requirements of service are meant to eliminate possibility of fraud and misrepresentation to the detriment of the other side who has to be heard for just disposal of a matter.
31. The Registrar acting under the Trade Marks Act, 1940, although a persona designata, has also to perform judicial duties when he has to adjudge cases of parties at variance and while acting judicially he has to ensure that he follows the judicial norms sensibly, sincerely, impartially and accurately and it is further required of him to follow the rules faithfully.
32. The notice remained un-served and this is apparent on the file. Attributing refusal for accepting the notice to the appellant was merely presumptuous and against the spirit of Trade Marks Act, 1940 and the Civil Procedure Code. Even otherwise the Registrar failed to communicate the impugned ex parte decision given by him to the appellant which was his bounden duty as required under rule 78 of the Trade Marks Rules, 1963.
33. In view of this situation and also the fact that the Registrar of the Trade Marks has to conduct an inquiry in such-like matters having special skills and has to appraise the evidence produced, the case is remanded to him. The ex parte order which is impugned, is, therefore, set aside. The parties are directed to appear before the Registrar of the Trade Marks on the 28th of April, 2003. The Registrar of Trade Marks is directed to complete the proceedings within the next month after hearing all sides and while sending a copy of his decision for information to this Court through its Deputy Registrar (Judicial) immediately thereafter and without fail.