' This judgment proposes to decide two Intra Court Appeals, the one in hand and the other ICA No.2-C/2006, filed under Section 15 of the Civil Procedure Code (Amendment) Ordinance X 'of 1980 as both of those raise similar questions of law/facts, require similar determination and are directed against same set of respondents. Both these appeals challenge orders dated 19-10-2006, passed on two separate applications (C.M.905/06 in C.0.1/06 and C.M.906/06 in C.0.2/06), whereby registered designs of the appellant were suspended pending suit.
2. Precisely, relevant facts are that appellant was granted registration of designs drinking glasses (tumbler) vide Nos.10710-D on 19-4-2001 and 11410-D on 25-7-2003 and on the basis thereof appellant filed a suit complaining infringement of the designs so registered and also moved an application restraining respondent No.1 from use of its designs, infringing its registration, pending suit with the Civil Court at Lahore. On disclosure of prima facie case by the appellant, a restraint order was passed by the Civil Court cognizant of the suit on 21-2-2004.
3. Pending suit by the appellant, respondent No.1 filed an application (C.0.1/04) before this Court praying cancellation/rectification of appellant's designs. Appellant appeared and opposed the rectification petition, which was withdrawn on 8-11-2005. Respondent No.1 after some time again moved two applications (C.0.1/06 and C .0.2/06) for rectification of the same designs, which were again contested by the appellant and during the course of hearing by the learned Single Judge in Chambers of his Court, preliminary objection regarding maintainability of second petitions in view of provisions of Order XXIII Rule 1(2) CPC was raised which was not decided and was ordered to be taken up along with the main application, whereas on two miscellaneous applications (C.M.905/06 in C.0.1/06 and C.M.906/06 in C.0.2/06) moved by respondent No.1 the registered designs were suspended pending suit, as noted above. Appellant being aggrieved of orders dated 19-10-2006, filed titled appeals. Respondent No.1 in response to notice on these appeals, appeared and was represented through counsel.
4. According to the learned counsel for the appellant registered designs could not have been suspended without assigning lawful reasons and that too, pending injunctive order by the Civil Court, protecting infringement thereof. It was further contended that appellant had objected to maintainability of second application by respondent No.1 as at the time of withdrawal of first alike petition, no permission for filing second petition was granted by this Court. It was further emphasized that appellant was granted registration of the designs on 19-4-2001 and 26-7-2003 which since then remained in its use, thus appellant could not have been deprived of its vested right of use. According to the learned counsel, the effect of the impugned order is that appellant's suit pending before the Civil Court stands dismissed but this course was not permissible under law.
It was also urged that earlier to passing the impugned orders, maintainability of second petitions had to be attended even though tentatively.
5. Learned counsel for respondent No.1 opposed the submissions of the appellant, supported the impugned orders and argued that issues on the applications of respondent 'No.1 have already been framed and issue No.1 relates to maintainability of the application, thus a direction may be given for expeditious decision of issue No.1 by treating the same as preliminary. It was also contended that since certified copies of the impugned orders were not needed for filing of ICA, appeals before this Bench being barred by limitation, deserve no determination. Reliance in this behalf was made to the judgment in the case of Board of Governors. Area Study Centre for Africa and North America, Quaid-e-Azam, University, Islamabad and another v. Ms. Farah Zahra (PLD 2005 SC 153). Learned counsel for respondent No.1 further submitted that impugned orders were passed after hearing both the learned counsel for the parties and due appraisal of facts, thus the same being reasoned are not open to any exception in these appeals.
6. We have heard the learned counsel for the parties and have examined the record. Since appeal against an interlocutory order passed by a Single Judge of this Court in exercise of original jurisdiction has been provided by section 15 of the Code of Civil Procedure (Amendment)
Ordinance X of 1980, which reads as under:- "15. Appeal to High Court in certain cases.---Notwithstanding anything contained in section 3 of the Law Reforms Ordinance, 1972 (XII of 1972), an appeal shall lie to a Bench of two or more Judges of a High Court from an interlocutory order made by a Single Judge of that Court in the exercise of its original civil jurisdiction."
' Requirement of filing of certified copies of the orders appealed against cannot be dispensed with, like an appeal under Section 3 of the Law Reforms Ordinance,, 1972, as far that purpose attaching of certified copies of the order/judgment was not required under Chapter 1 Rule 4 of the High Court (Lahore) Rules and Orders. In this background, we have no ambiguity that appellant was entitled to exclusion of time spent on getting certified copies of the impugned order in terms of Section 12 of the Limitation Act, 1908 and the judgment relied by the learned counsel for respondent No.1 relates to Intra Court appeal under Section 3 of the Law Reforms Ordinance, 1972, provisions of which have been excluded by the above reproduced law, hence instant appeal is within time. Similarly, we see no force in the contention of the learned counsel for the respondent No.1 to the effect that instead of setting aside the impugned order, a direction for early decision of issue No.1 may be issued because on these appeals we are legally obliged to look into legality or otherwise of the orders under attack.
7. Reverting to the merits of the case we find that appellant had objected to maintainability of second applications by respondent No.1 and decision of its objection was deferred till the decision of main application but at the same time, lawfully registered designs were suspended without attending to the contentions raised by the learned counsel for the appellant. We are tentatively of the view that effect of pendency of suit by the appellant before the Civil Court was also not taken note at the time of passing of the impugned-orders and those lack reasoning, as well. In the given circumstances of this case, we are left with no other option except to set aside the impugned orders dated 19-10-2006 on C.M.905/06 in C.0.1/06 and C.M.906/06 in C.0.2/06.
8. For the reasons noted above, both the titled appeals are bound to succeed and are accordingly accepted and impugned order dated 19-10-2006 on C.M.905/06 in C.0.1/06 and C.M.906/06 in C.0.2/06 are set aside/recalled with the result that these C.Ms. Would be deemed to be pending for fresh decision in accordance with law. There will be no order as to costs.