' Shukar Din, the predecessor-in-interest of the petitioner, was a Jammu & Kashmir refugee. He abandoned some agricultural land in the occupied area for which the petitioner submitted claim No, 6423. It was verified in terms of 369 P. I. Units. The first allotment was made at Khata 94 of village Charwah, Tehsil Pasrur, District Sialkot on 20th September 1964. It covered an area measuring 56 kanals, 18 marlas equivalent to 152 P. I. Units, comprising 7 khasras. Out of the claim of the petitioner's predecessor-in-interest 169 P. I. Units were transferred to some other villages in the same Tehsil, 48 P. I. Units are stated to have been allotted to the petitioner at Khata 96. All these allotments would have satisfied his claim in its entirety.
2. On 14th April 1970, the Deputy Settlement Commissioner (Land) Sialkot cancelled the allotment of one Abdul Hameed and directed that the same be included in the compensation pool of Jummu & Kashmir refugees. The petitioner and respondents filed appeals before the Additional Settlement Commissioner who vide his order dated 9th August 1971, maintained the order dated 14th April 1970, about cancellation but directed that the land be distributed to petitioner and contesting respondents rate ably. Both the petitioner {{BLUR PAGE}} J) and the respondents filed revision petitilASei*hiCh WereAdisinisseeD044171.40 NoVeln'iltier49076q. And hence the present VA/ petition: , ,,, .,L:.1 t .2 ,,,,,,- likt4.1PAV s48fitlin4141i,k, the, learned counsel for theiPettitidier 'that 92 kii,iilitkIt9f/ariiis '61"faiicliag'shirWri in red in the Annexure''9s' "(F.)601 of Kha -icit4ef!04-Offieti.Tilfiliatfbden given to the petitioner in ' doiliblidation pr 0 ' ' MIRP.011(:$6**1Y418.'4iarlas of land allotted to him Originally II 11 1 on ri 14 jell 06beii411964T2 The learned counsel for the respondents. ho der 6 tt N769fitt'lligili.Iiiinission by placing on rederd,' a Odartient sho1 Sh `ofVKtiiiga'Nog.941, 942'.943, 944, 947, 949;;05041#31:vand 952i 441-1? Attittedi T 6'146 petitioner in cartSoli datiofflprcietediti itvilieu of Ault ff e f. '',9kcebiling. To him Khaiins Nos.'73t-'953;19541,4325 an dif06`.' &twig ft0 15t1Oil!i9 Ca un or% " ' alqIiirli;k fol. Bo qdFtarFAi-99n, 9r the respondenN ' kirther submitted that his );..,,,v, ;i,;i: -,-,,, . .f'fi" ',.'1,;1 )Vt ,." f. ,i:, clieVtii .-51.014,,Atsrcm Ri, ud allotted to the' petitioner and that he had no intention to Claim any land out of the same He, 2.However, challenged the genuineness and validity of the petitioner's allotthent at Khata NO.
96. The case of the contesting respondents was that the land, ,cancelled4sein, the nainefloEiAbdid Katnetd..:atitild nOt(be allotted to,the petitioner injtsientirety andwasirightltyiiarderetktio 4* slotedibyitheifiesPondents as well. ' . ,
5. The learned counsel foe lie petitiOnereould not meet:the:objection raised by the learned counsel for the contesting 'respondents. He.,,,,alw,,could notloshlqw 4hat unty,,:jandiAafklieen validly, allotted to the petitioner M Khata Noakt)& gag 41*TroqthifF:Fspap#314411at they were not interested in the allotsnqatlofi.The,mAitioneriwn,Asoinqi,=c,ono-pverted.. bliirmAftecilektringrtheleattned dosinselifor the parties and .Going through themetadidinfotegifte, IL finAihattnerenis. No forceiinAhe,tOnteglitions being raiteditotheqiititlenerzmNo land., validlyllotted lie bbntrailiti$ Ann, ..Taken awnyirliyri tneruiriiptigried Leidek..Ii; . Rath& bine saineoliasubeenl ennce,dedy the learnedie;olimsellifoixeltiJiresponients'.b The ,.Allotment 4.1-4 tie tpetitikitner,,with regard to Khasra Nos.. 941, 942, 94%1944, 94749494.,959, 951,andr`P',;jshall, therefore, stand. As regards the other larick; 0 oidt5,19! tbeMditionall this case is unexceptionable for noffeldVdould la eprafen't&Ptigik The: k Settlement Commissioner dividing the,sarrie ratea6 1:4et`weert the :Parties to :A Settlement Authority, therefore, `lactic 'Ijnitly in`dividing the same between them. The impugned to ,44fir,iA , Allp y in, canoe with the principle laid down by their Lordships of the Supreme Court in Muhammad Shafi V. C. S. & R. Mirt)(ediadoning equitable distribution.
1.1.t .Idfts patititiriPtherefierei,i kits inocheeitband shaltstand shiposed :of , without Lstatobbrthel.NittycniltivisV\-el xlist, ill6 lo ,11.5ss0 arli iii bou3ciq f, ratl: ;.,, :11,, o1 I) ?.?3,61 ,3ril .1 .oL4 int)lorioqwy erli vd b5uzel 8peuippgat (Angsw -it el 1-ii wit ,IB noi/itsq (1) 1968ooG I4 Alai(' ovocit, orb lo gnat ,Jaii gnillei,. Ristailstl al ioint)bni brn, .t.,.-.Y.Ronirti- 131.; ?.L. e?,5rtiauri ru: ;t5i'irill:5 IifltOiI irtiqrnw s vd failqqiii,. 'T ,rix1-,-,198(11CoC40)6+1en hr o-;14 'At -!Ohpil ,,,Aioita,c1 ntrelisq oini ,zhorip.), kbjciw jidini'iarlfch3/3 , ,. , , ' riworj griliziaitis brie *AWE faiWitilliaifincrn-Orfin002, a -Alma' Man, If. w,i,9 bw/82/. MI- S441isliaielAIILIELIVINTERNAMONAL CORPORATIVII .Instsq ilL bOigtitYlE 1 OV(PAIiiniTAB) laitmAARACHI- Petitioner oclaol 5fit ,4cf oiii lo 5ffisrt At ui bfAtoqn 8(.??,;.1 verAtis ii-tr. - ;Dilqr.Fri of bo/ivrti a fiviTiipiedigliqTROLLER t OFIPAT.a4TS AN p DESIGNS, ,..:ioq.Ni his? 5r11 IcGGIVERNIMENTAIWRAKISTAN 4,1149E,OOTREniResENAIRAtf ..,di '1885}11 ealititifitodall'itiltitinNb. 453'01 11970,1deeided on'6th Dekiembets1971: oiiiRoqqo 1,/tifil lo ,,,,.?Oqino t51/ -,1,-.,; M";*t :,,Ii ,A,.2: ,.,..,3ip;'),: ,,t, ,D tiii.sEK {{BLUR PAGE}}
(a) Patents and Designs Act (If of 1911)- -- S. 9 read with Patents and Designs Rules, 1933, r. 21-Patent, grant of-Opposition invited to grant of patent within 4 months of Gazette notification-Petitioner's Advocate/agent's clerk filing notice of opposition with Rs, 10 as fee, power of attorney favouring Advocate and application for extension of time to file full statement of opposition after 3 months with prescribed fee of Rs, 75 and such documents filed within 4 months-Controller, Patents and Designs accepting Rs, 75 for granting extension of time as requested but another sum of Rs, 10 tendered for opposition notice not accepted due to there being some confusion about its quantum as evidenced by necessity to republish revised Schedule in Gazette-Controller. Patents and Designs, held, not justified in circumstances in shutting out petitioner on plea of having failed to file notice of opposition with prescribed fee within prescribed period and fee of Rs, 75 deposited by petitioner sufficient not only to pay revised fee for notice of opposition but also for extension of time. [pp. 646, 64714, B & D
(b) Practice and procedure- - Hearing a party-Party likely to be affected by act/decisionSuperior Courts always favour providing hearing to such party.-[Natural justice, principles of]. [p. 647]C
(c) Patents and Designs Rules, 1933- ------ R. 5(2) (h)-Maxim: Actut curiae neminem gravabit (no act or omission on part of Court should prejudice a party)-There being some confusion about correct amount of fee in respect of notice of opposition-Petitioner's Advocate/agent's clerk likely to have been informed by clerk of Controller of Patents and Designs as alleged that former would be intimated about correct fee when ascertained-Controller of Patents and Designs, held, should have condoned delay, if any, relating to payment of fee by virtue of doctrine enunciated in maxim, in circumstances.-[Maxi m].
[p. 6471E Razirti G. Jiwa for Petitioner.
Habibur Rehman for Respondent No,
1. Lifunawar Ghani for Respondent No,
2. Date of hearing : 27th November 1978.
' AJMAL MIAN, J.-This constitutional petition is directed against the advertisement appeared in the Gazette of 6th July 1977 calling for fee to seal the Patent No, 125598 issued by the respondent No, 1.
The facts leading to the filing of the above petition as alleged in the petition are that the petitioner carries on business as an importer and inventor in Pakistan selling pesticides under the brand named "Detia Gas-Exh. T" supplied by a company known as Messrs Detia Export Gmbh, which exports into Pakistan Pesticides manufactured in West Germany under a valid and subsisting patent. An advertisement in a Gazette of Pakistan dated 11-2-1977 issued by the respondent No, 1 advertised that the respondent No, 1 accepted an application for patent, bearing No, 125598 applied in the name of the respondent No, 2 and it was also stated that the opposition was invited to the granting of the said patent within 4 months of the date of the said Gazette. In response to the above notice, the petitioner appointed Messrs Nazim G. Jiwa, Law Associates, as its agent for the purpose of filing opposition to the said application. Consequently, on 9-6-1977 the petitioner's Advocate/ agent's clerk went to the respondent No, 3's office with the three sets of documents, namely,-
(a) a notice of opposition with Rs, 10 as fee;
(b) a power of attorney in favour of the Advocate from the petitioner on form 31;
(c) an application in form 4 requesting for extension of time to file a full statement of opposition after three months with the prescribed fee of Rs, 75 for extension of three months.
2. It has been further averred in the petition that upon the presentation of the said documents, the petitioner's Advocate/agent's clerk was informed that the fee for filing of the notice of opposition had been Rs, 50 and as such he could take back such notice and wait till the Advocate/agent receives an intimation from the respondent of the said increase. However, the cashier of the respondent No, 1 accepted the other two sets of documents as mentioned above along with the payment of Rs, 75 for which he issued a receipt. It has been further asserted that subsequently the respondent No, 1 published a notification bearing No, 1033 dated 29-6-1977 describing it as special notice dated 17th June 1977 in which the respondent No, 1 gave a revised Schedule of the increase in fee: However, in the meantime on 21-6-1977 the petitioner's Advocate/agent, Mr. Nazim G Jiwa after seeing the officer concerned of the respondent No, 1 and inquiring as to why no intimation was sent for the amount of the fee deposited Rs, 50 the required fee for the notice of opposition on the aforesaid date for which the respondent No, 1 had issued a receipt (Annexure D to the petition).
3. After that the petitioner noticed a Gazette dated 6-7-1977, in which the respondent No, 1 advertised that the aforesaid patent No, 125598 under the bracket "sealing fees due". This was done without considering the opposition filed by the petitioner. Consequently, the petitioner's Advocate/ agent made an inquiry, whereupon the petitioner was informed that it should make a representation in writing. In pursuance whereof the petitioner's Advocate/agent through his letter dated 13-7-1977 (sent under registered AD) reiterated the facts stated hereinabove in paras. 1 and 2 pertaining to the filing of the opposition etc. It was also pointed out that when the petitioner's Advocate did not receive any intimation about the correct amount of fee, he personally called at the office of the respondent No, 1 and after making out inquiries paid the said amount of Rs, 50 against a receipt. It was also pointed out that a complete list of all the three sets of documents was given to the agent of the respondent No, 2 Mr. Munawar Ghani, Advocate who received the said set on 9-6-1977 and a copy of the said letter bearing his due acknowledgement was filed in the office of the respondent No, 1 to bring it on record. The respondent No, l's attention was also invited to the fact that the relevant period was full of turmoil in view of the political situation in the country resulting in strikes and forcibly being kept away from attending the normal course of business. It was urged that the petitioner had filed the opposition within time and, therefore, the respondent No, l's advertisement for sealing the patent without considering the petitioner's objections was unjustified. The respondent N. 1 was requested to consider the petitioner's opposition before proceeding with the sealing of the patent in question, but the respondent No, 1 declined to consider the petitioner's opposition on the pleas that the notice of opposition was not filed within the prescribed period with the prescribed {{BLUR PAGE}} Ar:i.i() / .e.! I I .,:()ITA, Ts, n.611 \..." vrt,,I.:. 1 /37/,9 40Rte. feei-,,,Tite petitionev-,h4A : filer.1',Illks PPWi.Ig.V9S4P0411e41111,-4it Nov,-17s,,,,,OoreSaidriACtioll.,ItThe`. re449n4c4; .6n2 h.Fm IFF9W above petition in persuance of an order of this court kix impleading it as, a party to thepetitiB?..5.1 rjtiw flooizoqcio la 3i3ort :. ` 4. . In .supPort of the above PeAqM,n ri. Nm .,yil .,d*, has contended that the respondent No, ovate l's act o pro I the sealing of the patent without consideEin the , petitioner I il8tjce of opposition is illegal and male fide. ':cin. 'th lbtheli fikintAIIMASsiStillabibur ttelithan and Munawar Ghanhearned etstifi4)
64ilficreSii8ii**-4aVOcontended that the respondent No, l's act to Pi'' c 'idNlifi5tille iethtng.6fitlie patent isiiiimacgordame, with law inasmuch, iiasbAsvpe,tjtifyiyirrikqe4 t fie the !Baia:-,of,.Opposition with the, prescritt,e4pfeiliwiillitt,ithe:t Flibcks pgrt An.0?
Atheretoreonlaw there was rioAPPOftitiOrt Wi.13% flif fil?Pce lion for.,),the- grant of patent4 i:Thjir6Fpoin,slotsbno have counterrafficlavits., The respondent;k1m-fikiitill'1199.148Wr the assertions4eontained in the pgtitionoas Ifit,348 s docuMents,including.The payment,of,As.rgo0TRA-'9, idat3 As. 10along with a notice of oppo*Oioilii 1-A9664E,fitt Iffis 'the respondent No, I's cierkMn9irlIviltrAliTiitotPY b*, HO lq tic'.
Agent's:,clertc!Fthat the respoklcismiuNg.1 ClifiggtRoavatmdosp about the-worirect fee.
Theleapoirtdrit is rpellitionernlaak7faile to filedIftbevittoticet,44ipppositittotzQyioirjhs feerviithinithonprescribed,p,e,rio04,,tiridgf -RottzRApkther,Apto tilt aim sIvalsvifilello binTla w. , i,/ lttohigif 04P lme901aMS094.4tOVR Rs: 50,fee otAlAr44977 bYi0k4?, RfrAPPollf.,..,oth.935.9P9n91199t1e- 9 confer anYliiigilAri An the , pegtiotkgrfoiA4 sr1314)9k*A. PtC.i.IVI ' titiq 9Anlftaffidavit also !Reiterated that there was no notice or opposition ti e by t -e titionst.)Mthili Attie with the PreiliiPbal Ttedtiifrthiieifettitt, tliefiiespo.Ndent ,6".'2 0..4stilttitied to get its patent' i.egigfiRII ,b5z1,111bi; I ,0i', if!t5bnor4Y-51 silt f ,Illii,h)14 ,., V eiti.T . "iii) ,.e.61 actqc,::-)e" i.f:14.Uld OM is -.5-.' In'order, to appreciate the respreetiymAgtfenitiowolAtIOMfriii51M for the partiesi it will be advaatageousAoligkgito ttleifiV.kaPi3,sesALops 9 is)1 Patents and . Designs Act, 1921 (heppinafteriorefefiNdi( 415 -t Patent and Design Rules, 19.33-:(hereinafterrefgrxeittolo, 11.5A .;':oVrithe !Act..Provides that Any person , MAY Ws 11A1111S*ofjlkes latinnytirne,withjn.4 months from the clat"fe_ACINcrAsVii*Pit A* Rs, -7-.W Ithe.c application give notice at the Pater:005AI 91:93POR9tetffieskirti tofbpatent on I the grounds specified in ,e,.Glausm,fft itoqSAcipttt4R 439131 034, iv, ere lefiwtion.9.Ci iSubsection (2) of.-the sai4ii4Pert(i011u(PRIi"*S. 4iotiee-, is gilven i, the Controller shall , give ii(44icextoT,:141e2,OPPfisltlj(MitiAg. applicant and Shall on the expiry of thnse , isttbject 1 I to Y 1 Stak geiliditiqqS:. (if a nyi -i4114heon crwArill texpedientolthe5Eiplaticank and the Cp409,11Ar sialtAamsg, twit tiri,i-seqiviAilit PAttot:Office,22.v$14b*Ii9,1114W,MA gailpatent shalillie isealed:paa scOotiOit11411( bsoulft1R941,941 b34itturintits..Ft,Ontolhe,.Date:,,Of the applig*plai irWlaff 1ctihat:/thgr patent sealed 'wi.t.,,Iit!Tthe ,,seal,)10)44 Pr4terPli hotherAltrovisioria. Of the Act, confer] ojaithsrpigen of making, selling and using the invention throughout -198b.1 ALLIED INTERNATIONAL' CORPORiTION' (PAK.) LTD. V. CONTROLLER 68 1.11 01 ru,,i,,,,,,ii.) c.?e. PATENTS AND.Difisfrvil(A4mTaiMicin, J) , , , i r3( , :.IiI3..,:l '....11. Bli;t:,..1 10thelgf)S(40 0 14eeti011'ilfiliiiiOgi tA4t114 .111.iftitiOn of tliewpaIdittillhall save as other Ai exPresSiSP $4''bilidiiii'liriiievAdtt'' 'be 16 y'atas filittilEit date.;! ,Subsection f(I) pf.,sectjami 57,ppoyidgsAiacttifp .001 be pall in respect yoUgsantiipf ,patent ,and regi$44.tiRn:, of des49.-;,1441lication,448r049b tespect.Af other matters with ,,relation to.pRtq5,-,)94 ,csi$n , P1101. I. PI ,. Ludlarlee,as maY,abebvrescribecl by the , gentraj.., q.perAilitent,. Whereas - si, - sectioni (2),Ipf 1he n said, section provides, thaill a PPFP:f411$1111,3 respect of w ir.-,.Fee'isexpayableimndeilthi4.4 or the ,rules ri slaal1.i9,18?
1 ieffect unless fee-h* been/ stgligli.15 vi: - - ' ' l'' t.,. ?Mttrriii)fAi a , ,:15: ?:, tt,rY.41,..1 #TBS A Oe ) dttliel ? Kul. Ifirriity"be advantageonsrikpitgrothiteltheraibnye #TBE #TBS d y tiaYment. Of fee rdi4 theuitaioiOillintaintied g) . #TBE #TBS AV fit 11.4? Wheie*s di& iC 't f lktd.-54kidObsitediPaidlittee ftskiwttikif the #TBE #TBS dnbr RuIe.1 Plitlides'`thefilingfldf-Address #TBE #TBS offite'of the respondent iNo?it1bf iniludek #TBE #TBS criisheii61),16 #TBE #TBS mi man .Er rn #TBE #TBS do;e, #TBE #TBS GIs k ye91- #TBE the itill ' IcA5i down the iliclkWlifit dflifittfig 6thipplichtiim at t #TBS 54'0 d ).; :get in force fo r 111,0)fuli,,pe ri o d ,or 1:6- year ftopiinitsid ate ,..,,,i..xtri3oi #TBE #TBS 4 k,le hic " "il. i 0 14.73t (IT itees to, e pato in respect of IteMiirailf of?Atenti ia trti. d i, o) 2A: _..3,-iy. _..=)i!FVgVat,wniof de wns, and applications t ere Of ,an 1 rictect -at other matters ill( qtents and ',4igitifg l'indi 5 "ilia% ;1. Thw spcifj itathe?, It.,1,z,iltip, to -t ese rhii f- ITfiredhaftek lin 1.Mi offcferFecl. Al? As, -,t4e00:$013-0 - e .. '''' .., ;; '1...),911,..';a1'....; . . ..:1. Zi,:ifiniirt115ndi 77Q1-PritArided) that moifceSs$halklie payable in meg:hog Any secret patent,.
'.5riI'-'.0 vietyJsueh bwitont 1140vitbstancling the non-payFriqnt of such fee ,5 as #TBE #TBS ;.,0,,,,c;,,g,,_.,. . ,, ic,, t.i-,Ao Jr r!Il, 1 .o i.,1 #TBE (2)(a) Fees may be paid in cash at the offiter;obroayliiefsentibtatIOMY "iiii,wprder or pqst Ifj or,def,,,,9,r7",lpeqr. Ow, a Scheduled ..Pank as defined in its ,,iyiltpik.,.'0(1,i1,,NIite11_,:c7irjr1011,1:4;y_,4/16'to the 21g inc,the State 11-49 qyaktsfati AC117: 'xi/ . Controllqelt bi, and if se, ou t posy. *6med to have been par at the' time Wheiimihe giskoney order or 'the: properly ,,,,t addressed and prepaid letter containing the cheque or the- pok[tal order, I Ett)me:nsiiouldrbeideliverall inAttlet,0 rd I nag COVC491 past. .,.: "1'19 riT .(? 511l 10) tikkjiles'-'-'hold baiiCiOni I Cthevtitniteet5aliditioliotfoi-.14oitarnissiami aktd ?Ri ,.$ X.n- "other thaiiiChNitiA14%-h Ithe 2fu11 wilitaeatritidt belieoilmtectoinaitash 95find'iitiiiiiit iliilvfitife4tWed- Arrpaffinett4ifittivfeePishall:belaetePtedf.Iwally .,. 7(9 6..t .Ftilifigcretitiabptibeocoitotbikt.1 I `...)fi'L,I. I *:, I ..1. 13W-iie) 5M.S.Iii) f)fi.1 iti 9tli. 11 1').''''' .) ':- '-= ..Wil vd now!, koi?.1.1.2- g.
5.,,,teild, Eli b5alioni 91e .D At Ibm. c) Stamns shalt, Nit Ile Jeceixedi,gfrpaym I' of es. _, . _ , . .. Drfl'e 2e'll .1.0/1.1 j61-1i l*ttotti/5,1 t,- , ' 7. ,Rule 20 proyideS,that.,notice-, Arp4ititqR t9dtnertan opr ,rnena- , _ . .. . ..,, .1,-4 ,lo .D i anent etk.- of a.,,,,oAtentlhall; he:ayep.,,3,11 ,ilp Rte,.:phc copy , q tAc,Dxtptife shall Itt [-i +or! ; .Senti byri ith34.,Coorpiler. Tp, thccIpplican4rzoFi.,.His agent. 157,40x,4ttiuW,).21 w'mproy-Igks that witki,n 141 days'iof,,styan$,,,jabngtice,, of . oppoSition the!, Opponent te ttnshall laume,Att ithougg,jcp.j,f0. Written statement in duplicate stgti sgt, the 41111 natoretoffthcbropptcpent's ,interest 'and the facts upon whichd ' bases lit;tund idle AlieC,,whi0 Ole LAFFIc.s. It, further providq that the ll liControAlgcshail fximiph: the aPPliFaat_. With a copy of the statement. It also qapladoW4ntbabbasola how the :evidence is to be filed by the PactieS:in . . ... .n:,.4 support of thcFappli4t,ion and in oppositt,on to it. Whereas alkleci :,,z2 provides that on the completion of these'proceedings or at such other' tirne Igtsbte may ,..See tftitch thekigs,ntroller,04, rAppOit,i,sime. For the, hearing rl an Ahetortatic't and! I thalti gho, the ,,p4tie*:, no. Imjailtp.,,,10. Days' noitipe harsuchobtaning-i.1 dt ?Further,,providcs, that if, .,ei cr , pgiftv desired 40 'be {{BLUR PAGE}} ' heard he shall leave form 7 at the office. It also gives discretion to the Controller to hear any party who has not left from 7 prior to the date of hearing. Rule 23 provides the procedure of sealing of the patent.
8. The sole question for consideration in this petition is as to whether in view of the facts stated hereinabove the respondent No, 1 was justified in treating the filing of opposition notice by the petitioner out of time, and was justified in refusing to consider the opposition notice before proceeding with the sealing of the patent. It is an admitted position as pointed out hereinabove, that on 9-6-1977 when the petitioner's Advocate/agent's clerk tendered 3 sets of documents referred to hereinabove in para. 1, the period of 4 months had not expired as it was to expire on 11- 6-1977, as asserted by the respondents in their counter-affidavit. It is also an admitted position that the respondent No, 1 accepted Rs, 75 on 9-6-1977 in relation to the above opposition notice for granting extension of time of 3 months for filing the full statement of facts, under rule 21 of the Rules. It is also an admitted position that another sum of Rs, 10 was tendered for the opposition notice which was not accepted by the clerk of the respondent No, 1 on the plea that the above fee was not prescribed fee and that the A correct fee was Rs,
50. According to the learned counsel for petitioner there was some confusion as to the amount of the fee for the reason that a new gazette containing the schedule of fee was expected to be issued by the respondent No, l's office and, therefore, the respondent's clerk concerned informed the petitioner's Advocate/agent's clerk that the petitioner would be intimated about the correct fee. It is also clear that in fact the respondent No, 1, published a notification dated 17-6-1977 gazetted on 29-6-1977 (Annexure C to the petition) in which he gave revised Schedule of the increased fee. It may be pertinent to reproduce the caption of the above notification which reads as follows :- "The revised Schedule of fee which appeared in the gazette of Pakistan dated 21st June 1976, and came into effect with effect from 21st August 1976, is reproduced below for general information of the public."
9. There is also no controversy on the fact that before the enforcement of the revised Schedule with effect from. 21-8-1976 the fee payable for the notice of opposition was Rs,
10. It is not understandable as to why the revised Schedule which was effective from 21-8-1916 and which was published in the Gazette dated 21st June 1976 had to be 'republished on 29-6-1977. We are inclined to believe the version given by the learned counsel for the petitioner that there was some confusion about the quantum of fee and in order to remove the above confusion it was considered by the respondent No,
1. Necessary to republish the revised Schedule in the Gazette. In our view the respondent No, 1 was not justified in shutting out the petitioner on the plea that the petitioner had failed to file the notice of opposition with the prescribed fee within the period prescribed under section 9 of the Act. The petitioner had deposited Rs, 75 on 9-6-1977 which amount was sufficient not only to pay the revised prescribed fee for the notice of opposition but also for extension of one month's time for the filing of full statement in opposition after the expiry of 14 days provided under rule 21 of the Rules from the date of filing of the notice of opposition.
' It may be pertinent to observe that on 9-6-1977 there was no need of filing of an application for extension of time for filing full statement in opposition and there was no requirement to pay Rs, 75 as the petitioner could file an extension application on any day before the expire of 14 days provided for filing full statement of opposition from the date of notice of opposition under the aforesaid rule 21 of the Rules. In fact the petitioner deposited even Rs, 50 on 11-6-1977 which was before the expiry of the aforesaid 14 days statutory period for filing full statement of opposition.
10. Form 4 requesting for extension of time referred to hereinabove cannot be divorced from the notice of opposition in Form 6. The former Form for extension of time for filing full statement in opposition cannot be entertained unless the notice of opposition is filed. At no time the respondent No, 1 asked the petitioner to collect back the aforesaid amounts of Rs, 75 and Rs, 50 deposited by it.
The superior Courts always favour providing of hearing to a party, who is likely to be adversely affected by an act/decision. The effect of non-suiting of the petitioner in the application for registration of the patent will be that the petitioner will be deprived of dealing in the product in which it has been dealing as by virtue of section 12 of the Act on sealing of the patent the respondent No, 1 shall become the patentee with the right of exclusive privilege of making, selling and using with the exclusion of others. In our view the respondent No, 1 was not justified in non- suiting the petitioner on a highly technical ground in such a serious matter, particularly when the petitioner had deposited Rs, 75 within the period of four months on 9-6-1977, which amount was sufficient to cater for the fee of the notice of D opposition and one month's extension fee after the expiry of 14 days from the expiry of 4 months from the date of the Gazette of inviting opposition as per rule 21 of the Rules referred to hereinabove. In our view there was substantial compliance of subsection (1) of section 9 of the Act by the! Petitioner.
11. We are also of the view that even otherwise it was a fit case where the respondent No, 1 would have been justified in condoning the delay, if any, by virtue of the doctrine that no act/omission on the part of a Court should prejudice a party. In the instant case, as observed hereinabove we are inclined to believe that there was some confusion as to the correct amount of fee payable in respect of the notice of opposition and that the petitioner's Advocate/agent's clerk might have been informed by the respondent No, l's clerk concerned that the petitioner would be intimated about the correct fee as the notice dated 17-6-1977 containing the revised Schedule of fee was published in the gazette dated 29-6-1977 referred to hereinabove immediately after the above incident. It may he observed that rule 5(2)01 quoted hereinabove in para. 6 confer discretion on the Controller to condone the delay relating to the payment of fee in the cases specified therein.
Without going into the question as to whether the aforesaid rule could be invoked in the instant case, it will suffice to say that the condonation of delay is not foreign to the Act and the Rules. There are many other provisions in the Act and the Rules empowering the Controller to extend time for the acts specified therein.
' Before parting with the above discussion we may observe that Mr. Nazim G. Jiwa the learned counsel for the petitioner has also urged that the respondent No, 2's application ought not to have been accepted as it violates inter alia section 5 of the Act, we do not wish to comment upon it, as it will be for the respondent No, 1 to consider the same.
12. In view of the above discussion we allow the petition and declare that the respondent No, l's act to proceed with the sealing of the patent without providing an opportunity to the petitioner to be heard in opposition {{BLUR PAGE}} as per ruje,,g .,fpf. The Rule Without lawful authority and of no, legal ,effet.
7'.Hee#e`is repanded togie,tespondent No, 1 who shall proceed witb)the blywipitof,t notice of opposition and will decide the same ip accordance ovOlgmvill: here will be no order as to co4hri, vr(i,.,6 nn 05 S. A. H. Case teinwt boilf/q 3"-)ciEniprA ;,Y3 i).:t71&fr7 9rfri s