SYED HAMID ALI SHAH, J.---Through the instant application the applicant seeks condonation delay in filing the appeal under section 76 of the Trade marks Act, 1940 against the decision of the Registrar of Trade Marks, dated 1-4-2003, through invoking provisions of section 5 read with section 14 of the Limitation Act.
2. The application for registration of Trade Mark `NIRALA' under No.143282, in Clause No.29, dated 20- 8-1997 was moved by the applicant. The application was contested by respondent No.2, through Opposition No.620 of 2001. The Registrar of Trade Marks respondent No.1 allowed the opposition, resultantly sought for, registration was declined vide order dated 1-4-2003. The appellant assailed order of respondent No.1 through filing the appeal under section 76 of Act, 1940 in the High Court of Sindh at Karachi. Respondent No.2 filed an application under Order VII, rule 10, C.P.C. (C.M.A. No.1288 of 2004). The appellant contested the application, filed reply but at the close of his arguments conceded the objection. Learned Judge in Chamber, thus returned the memo of appeal with its annexure to the appellant for its presentation to the Court of competent jurisdiction, through order dated 28-4-2004. The petitioner thereafter filed instant appeal in this Court, which is accompanied by application in hands, under section 5 of the. Limitation Act, 1908, seeking condonation of delay in filing the appeal before this Court.
3. Learned counsel for the petitioner contends that the order passed by respondent No.1 on 1-4- 2003 was received on 2-5-2003 while the application for certified copies of the impugned order was made available on 3-5-2003 and instead thereof received the certified copies on 28-5-2003.
The applicant upon receipt of the impugned order filed an appeal before Sindh High Court at Karachi on 26-7-2003 within the prescribed period of 60 days. The appeal was returned to the applicant through order dated 28-4-2004, the copies whereof were delivered on 10-6-2004 in response to the application of the applicant dated 1-6-2004. The original appeal was returned on 11-6-2004. The same was dispatched to Lahore on 12-6-2004. While documents were received on 13-6-2004. The applicant filed instant appeal on 14-6-2004. It was contended by the learned counsel that without wastage of a specific date the petitioner had filed instant appeal and the period, consumed in approaching the wrong forum (Sindh High Court at Karachi), is required, under law, to be condoned in view of the provisions of section 14 of the Limitation Act, 1908. Learned counsel summed up' his arguments with the submission that the period of limitation for filing the appeal starts running from the date when the impugned order was received by the applicant and not from the,date of its decision.
4. Learned counsel for the respondent, on the other hand, has submitted that the petitioner has approached the wrong forum and the period consumed in pursuing the fruitless litigation is not liable to be condoned. Learned counsel went on to argue that the objection regarding jurisdiction was raised and the applicant contested the same, thus the period so consumed is not required under law to be condoned.
5. Learned counsel has submitted that the applicant filed the appeal before Sindh High Court at Karachi with delay of 31 days and thereafter the instant appeal has been filed with a delay of 40 days. Learned counsel has submitted that section 5 of the Limitation Act, 1908 is not applicable to the appeals filed under the provisions of Trade Marks Act (V of 1940). He has added that the Trade Marks Act (V of 1940) is a special statute and provided a period of limitation of the filing of the appeal within 60 days of the decision. Trade Marks Act being a special statute a period for filing the appeal has been provided therein, therefore, the provisions of section 5 of the Limitation Act are not applicable to such appeals. Learned counsel in support of his contention has placed reliance on the case of Arshad Nasim v. Registrar of Trade Marks and another 1986 CLC 2622.
6. Heard learned counsel for the parties and record perused.
7. Admittedly the appeal before the Sindh High Court at Karachi was not filed within 60 days of the decision. If the period for obtaining the certified copies is excluded, the appeal is not within 60 days of the decision. The law has clearly specified the period from the date of decision, thus the communication of the decision is immaterial to compute the period of limitation. Instant application has been filed under sections 5 and 14 of the Limitation Act for the condonation of delay. Since the Trade Marks Act (V of 1940) being a special statute, the provisions of sections 5 and 14 of the Limitation Act, 1908 are not applicable to the appeals filed under the provisions of Trade Marks Act. As authority for this proposition I may refer to the case of " Awan Construction Company v. UBL through Manager" 2005 CLD 1500, wherein the apex Court has held as under:- "From the above it is thus clear that the special law has provided different period of limitation, for filing the first appeal in this Court, than the ordinary law, therefore, section 5 of the Limitation Act is neither applicable nor attracted in present set of circumstances as per law laid down in the cases of "Allah Ditta v. Farooq Ahmad and 3 others PLD 1979 Lahore 917; "Bashir Ahmad and others v.
Messrs Habib Bank Ltd." 1990 CLC 1105; "Messrs Conoco Industries (Pvt.) Ltd. And 3 others v. United Bank Ltd. Lahore and another" 2004 CLD 472 and "Sheikh Muhammad Kashif v. Askari Leasing Ltd.
Through Manager/Chief Executive of Branch/Recovery Officer" 2004 CLD 1645 and by the Honourable Supreme Court of Pakistan in the reported cases "Ali Muhammad and another v. Fazal Hussain and others" 1983 SCMR 1239 and "Allah Dino and another v. Muhammad Shah and others"
2001 SCMR 286. Being guided by the aforesaid law laid down, the application in hand, which has been filed under section 5 of the Limitation Act, is -misconceived, incompetent and not maintainable. Needless to mention that the contentions raised by the learned counsel in this regard are devoid of merits in view of the aforenoted law declared by the Honourable Supreme Court of Pakistan, which, as per 189 of the Constitution of Islamic Republic of Pakistan, 1973, is binding upon all the Courts."
8. In this background, the application filed by the applicant under sections 5 and 14 of the Limitation Act for condonation of delay is neither competent nor has any merits, resultantly stands dismissed. Main appeal The instant appeal has not been filed within the period of limitation. The application for condonation of delay has already been dismissed by me through order of even date. The appeal being barred by limitation is dismissed.