' HAMID ALI MIRZA, J.---This civil petition for leave to appeal is directed against judgment dated 3- 3-2003 in Miscellaneous Appeal No,12 of 2000 passed by learned Judge in Chambers of the High Court of Sindh at Karachi, whereby the said appeal was allowed and decision of the Registrar Trade Marks, respondent No,2 was set aside and the case was remanded to the Registrar to decide opposition in accordance with law.
2. Brief facts of the case are that the petitioner filed application for registration of its Trade Mark "GAP' under No,111814 in Class 25 (hereinafter referred to as trade mark application) with the respondent No,2 on August 4, 1991 under relevant provision of the Trade Marks Act, 1940 (hereinafter referred to as the Act); who after completion of other procedural formalities in respect of trade mark application got it advertised in terms of provisions of section 15 of the Act in the Trade Marks Journal No,541 of February 1996, which was published on August 7, 1996 for inviting opposition from the traders, general public and any party interested in opposing registration of the petitioner's trade mark under the Act; as under the provisions of section 15(2) of the Act any interested party could oppose the registration of petitioner's mark by filing notice of opposition within a period of two months from the date of the advertisement of the mark in the Trade Marks Journal, as envisaged by the provisions of Rule 30 of the Revised Trade Marks Rules, 1963 (hereinafter referred to as the rules) when rule 76 of the rules provided that period of filing notice of Opposition cannot be extended for a period of one month at a time, however, a party can seek a total "six extensions of time", each of one month, for filing notice of opposition. The petitioner's trade mark application was advertised on August 7, 1996 but no notice of opposition against registration of petitioner's mark was filed till February 27, 1997, however, respondent No,2, issued a notice dated April 22, 1997 to the respondent No,1 for inviting opposition to the petitioner's trade mark application which was directed to be filed by May 22, 1997. However, after the expiry of time allowed, the respondent No,1 filed opposition through two separate applications for extension of time only on July 23, 1997 and respondent No,2 fixed hearing of the case on 20-9-1997 to consider issue of belated extension of time which was objected by the petitioner on the ground that statutory time for filing Opposition had expired and that applications for extension to time were made by unauthorized agent. Finally, on November 11, 1997, a notice of Opposition bearing No,338 of 1997 was filed by the agent of respondent No,1 and hearing was made on February 3, 1999 by respondent No,2, when time to file opposition was allowed by May 22, 1997 as a special case during which period neither any notice of opposition was filed nor extension of time was requested for a period of two months and one day.
Thereafter respondent No,2 through order dated May 8, 1999 dismissed the opposition filed by respondent No,1 on the ground that it was time barred and did not extend time for filing of opposition as requested by respondent No,
1. Against the order of respondent No,2, an Appeal No,12 of 2000 was filed under section 76 of the Act which appeal was heard and was allowed by learned Judge in Chambers in the terms as stated above.
3. We have heard learned counsel for the partie and perused the record.
4. Contention of learned counsel for the petitioner is that learned Judge in chambers has not taken into consideration the law on the subject and seriously erred in considering rule 23 of said rules which being mandatory in nature did not require issuance of any notice by respondent No,2 to the proprietor of a cited mark and in terms of provision of section 15(1) of the Act, advertisement of a trade mark application in the Trade Marks Journal would be notice to whole world, therefore, no further notice is required to be issued to any party under any other provision of law, considering that even if it is assumed that rule 76 is applicable even then the learned Judge in Chambers has not appreciated that first extension was due on or before May 22, 1997 for a period of one month up to 22nd June, 1997 and second extension was due on 22-6-1997 up to 22-7-1997. No such request was filed and such request for extension of time were filed subsequently for which no plausible reason or justification was shown for condonation of delay.
5. Submissions of learned counsel for the respondents are that the impugned order is legal and proper according to the provision of law therefore, requires no interference considering that under rule 76 of the said rules, extension of time could be allowed for six times when each extension could be not more than one month at a time and in the instant case oppositions were filed within the required period as such there was no delay in filing opposition. He has placed reliance upon the decision of this Court reported in Rehmat Elahi v. Messrs Hoyo Kabushiki Kaisha PLD 1992 SC 417.
6. We do not find merit and substance in the contention of the learned counsel for the petitioner.
7. Learned Judge in Chambers has observed that according to rule 76 of the rules the respondent is entitled for extension of one month each and not exceeding six months and the respondent No,1 could have maximum period of six months for filing opposition in T.M. 54 which was timely filed on 22-11-1997, therefore, opposition was well within time placing reliance upon the decision of this Court in Rehmat Ali's case (supra) wherein this Court at page 426 has observed:-- "The Registrar is empowered under rule 76 to extend the time. It confers a restrictive power on the Registrar not to extend the time beyond an aggregate period of six months and also that an extension granted under this rule shall not exceed a period of more than one month at a time.
Therefore, there are two limitations placed on the powers of the Registrar (i) that at a time the Registrar cannot extend time beyond a period of one month and (ii) the total aggregate cannot extend beyond six months. The power of extension is thus restricted to that extent and cannot be exercised beyond it."
' It may also be observed that rule 30 of the said Rules also provides period of two months within which notice of opposition to the registration of Trade mark may be given, from the date of advertisement of the application for registration. The learned Judge at pages 6 and 7 of the impugned judgment has observed as under:-- "Therefore, in my humble opinion in view of the successive pronouncement of this Court referred to above the limitation for filing objections in terms of subsection (2) to section 15 read with rule 30 which provides two months from the date of publication could not be pressed into service. Even otherwise in terms of proviso to section 15(1) ibid, where the Registrar on account of any exceptional circumstances consider it to be expedient, advertise it again. It appears that since earlier mark was advertised without complying Rule 23 ibid, therefore, in the instant case the Registrar issued notice inviting objections to the applicant on 22-4-1977 such notice could be deemed to be a notice in terms of rule 23 of Trade Mark Rules, 1963.
' Now advertising to the computation limitation in terms of rule 76 which no doubt provides that the Registrar if satisfied on any justification shown for extension of time may extend, time not exceeding period of more than one month at a time: however, such period will not exceed in aggregate more than six months. Computing period of limitation in terms of rule 76. In the instant case, I see that the notice dated 22-4-1997 inviting opposition from the appellant gives time up to 22-5-1997. Extension of time was applied for firstly on 23-7-1997 and the matter was adjourned from time and in the mean time further applications dated 22-8-1997, 22-9-1997 and 22-10-1997 for extension in time were made, ultimately the opposition was filed on form TM-5 on 22-11-1997. In terms of rule, 76, in my humble opinion, maximum time that could be availed of is six months from the date when the appellant is required or called upon to take any proceedings or step under the Rules. The appellant in the instant case was required to file Opposition within one month i,e, up to 22-5-1997, the extension in my opinion that could be sought in terms of Rule 76 for a maximum period of six months, was up to 22-11-1997. The opposition was filed on 22-11-1997 which in my humble estimation is within time."
8. So far the next contention of learned counsel for the petitioner that extension sought by Messrs All and Associates was without any power of attorney, as such the filing of opposition by him cannot be termed to be legal or valid even filed within time by timely constituted representation has also no force considering that the said hypertechnical objection and procedural matter not effecting the merits of case cannot be sustained being insignificant nature considering that justice is not only to be done but seems to have been done. We may also observe that learned Judge in Chambers has only remanded the case to the Registrar to decide opposition in accordance with law on merits as such no prejudice would be caused to the petitioner if matter is decided on merits after hearing the parties.
9. In the circumstances we do not find any legal or factual infirmity with the impugned judgment, consequently no interference is called for in constitutional jurisdiction of this Court, as such leave to appeal is declined and the petition is dismissed.