1. ' MRS. YASMIN ABBASEY, J.---It is argued by learned counsel for appellant that while considering the application for registration of trade mark of opponent, appellant's oppositions submitted before Registrar Lahore on 16-5-1990 and 11-6-1990 could not be considered as the same were not sent by the Lahore Office to Registrar Office at Karachi. Being aggrieved by the order of Registrar this appeal has been preferred for setting aside the impugned order of 13-10-2003.
2. ' Conversely learned counsel for respondent stated that proper course for the appellant was to move an application under section 46(4) of Trade Marks Act, because neither High Court nor Registrar Trade Marks suo motu can take up the matter for cancellation of trade mark of appellant already granted. To support his arguments he has relied upon PLD 1980 Karachi 472, and argued that the present appeal preferred under section 114 of the Trade Marks Ordinance, 2001 is not maintainable.
3. ' In reply to it, learned counsel for appellant contended that question of making an application under section 46(4) of Act, would have arisen when opposition submitted twice would have been considered but as it was fault of the office of Registrar therefore, he cannot be penalized for non- compliance of them and that is why he rightly applied for cancellation of trade mark, as he was condemned unheard.
4. Once an application for registration of trade mark is allowed proper procedure has been prescribed for getting it set aside or rectified. Aggrieved party has to make an application before the High Court or. Registrar for correcting any entry made or error or defect appearing in the impugned order. Admittedly A said proper procedure had not been followed by the appellant.
5. Learned counsel for the respondent conceded that he had no objection if the matter was remanded to the Registrar for rectification of his order passed on 13-10-2003, if any application for the same was moved by the appellant before the Registrar Trade Marks.
6. ' In view of the legal position matter is remanded to the Registrar for considering application for rectification along with oppositions on record, if any, moved by the appellant, with B notice to both the parties and giving them an opportunity of hearing. In case, no application is moved the impugned order would hold the field.