1. ' NADEEM AZHAR SIDDIQI, J.---The applicant has filed this application for cancellation of Design No,10651-D acquired by the respondent No,1 in respect of design of three Wheeled Vehicle. The facts as pleaded in the application are that the applicant is a leading industrial company of Pakistan and is a part of Habib Group of Companies, which are involved in various businesses including a Joint Venture with Toyota Motor Company, Japan and other Companies. In 1996 the applicant embarked upon the design and development of a Three/Four Wheeled Vehicle (design for Pakistani Market). Thal's object was to develop and market a small vehicle with reasonable price to be affordable by a common man. The respondent No,1, who was keen to work on such a project, joined the team, as he did not have either the funds, the technical expertise or the engineering acumen to develop a proper design. The respondent No,1 was deputed to work with a team of engineers of applicant and in December, 1997 respondent No,1 was appointed as the Project Leader and in that capacity he engaged other. People to assist in the design. At the request of the respondent No,1 his brother respondent No,2 was also engaged by the applicant to assist him in preparation of the design and both the respondents received remuneration from the applicant on regular basis. The applicant arranged for respondents Nos.1 and 2 to be provided the requisite know-how through books, experimentation, training and visits to various manufacturing facilities, which includes visits abroad (England, France, Italy, India, China and Japan) at the expenses of the applicant. It was stated in the application that at all times it was clearly understood by the respondents Nos.1 and 2 that the design belongs to applicant and the benefits of any work which they did for the design would accrue exclusively to the applicant. In June, 1999 when the design was almost complete and a prototype has been developed, respondent No,1 informed applicant that he no longer wished to work on this project and he asked to be compensated for the work, he and his brother respondent No,2 had done till that time on the design. The respondents Nos.1 and 2 agreed that sum of Rs,526,316 would be adequate compensation for their service and this amount after deducting taxes was accordingly, paid by the applicant on 23-8-1999. At the same time respondent No,2 requested the applicant to be hired as a permanent employee and he was engaged as a Project Development Engineer w,e,f, 1st July, 1999. The applicant for the preparation of the design was reimbursed regularly and from 13-5-1998 to 5-5-1999 reimbursements in the revolving fund for the design were made at the request and were duly signed by the respondent No,1 and from 17-6-1999 to 24-9-2001 the reimbursements in the revolving fund for the design were, made at the requests of and were duly signed by the respondent No,2. It was stated in the application that from 1-7-1997 to 31-12-2002 the applicant spent over Rs,4.1 Millions as direct expenses arid approximately Rs,1.0 Million as indirect expenses of research and development. On 24-4-2001 after the design was completed, the applicant moved Design Registration Application before the respondent No,3. Who allotted Registration No,10752-D to the application for registration of design of three wheeled vehicle. On 23-6-2001 the respondent No,3 informed the applicant that its design application was liable to be rejected as it appeared to be similar to a prior design, namely, Design No,10651-D. The applicant applied for certified copy of the Design No,10651-D, which was refused and after efforts the respondent No,3 only issued a brief certificate on 1-2-2003 disclosing that the design No,10651-D dated 3-2-2001 had been registered in class No,1 in the name of respondent No,
1. It was also stated in the application that the respondent No,1 after receiving full remuneration for consultancy services and the respondent No,2 while still in the service of applicant, stole the design from the applicant and got it registered in the name of respondent No,1, in a clandestine manner through misrepresentation and fraud. The respondent No,2 submitted his resignation on 24-9-2001, which was accepted and full dues were settled on 24-10-2001.
2. ' Counter-affidavit on behalf of respondents Nos.1 and 2 has been filed by Razi Nayyer, who is respondent No,2. The respondents in their counter-affidavit have submitted that the respondents Nos.1 and 2 had been developing the idea of an indigenous three wheeled and four wheeled motor vehicle in Pakistan since the early 1990's and had in 1992 developed a chasis for three wheeled motor vehicle, as a result of various inquiries made contact was made by the respondent No,1 through his employers with applicant through Mr. Sohail P. Ahmed, a Director of the applicant, who showed an interest in developing such a' three wheeled motor vehicle in Pakistan and in January, 1997 made available resources at Thal Engineering (which is a division of the applicant) and raw materials and other items to develop a prototype of such a three wheeled motor vehicle. It is emphasized that no agreement or contract was ever entered into between the respondent No,1 and the applicant and the facilities extended were gratis and for the purpose of development of the prototype of the three wheeled motor vehicle were only to meet the needs in the development.
3. It was further submitted that from January, 1997 until about December, 1998 and January, 1999 the applicant as per its Memorandum of Association was not authorized to conduct any work in relation to the business of the designing, development, manufacturing, marketing and sale of motor vehicles. The respondent No,1 has submitted that he never received any consideration from the applicant for the development of the Prototype three wheeled Motor vehicle. It was further submitted that neither any agreement entered into between the applicant and the respondent.
4. No,1, nor was any technical assistance provided by the applicant to the respondent No,1 apart from the facilities referred to above. It is further submitted in the counter-affidavit that the respondent No,2 was not engaged by the applicant at the request of the respondent No,
1. It was submitted that the applicant employed respondent No,2 from 1-7-1999 after the three wheeled motor vehicles have been completed by the respondent No,
1. It is also denied that respondent No,1 ever acted under the supervision and guidance of the management of the applicant. However, the respondent No,1 admitted that the applicant sponsored the respondent No,1 on various trips so as to facilitate the development of the three wheeled motor vehicle. The respondents. Nos.1 and 2 submitted that the development of the prototype of three wheeled motor vehicle was started in January, 1997 and was completed and displayed on 1-5-1999, the entire design and development of the three wheeled motor vehicle was undertaken by the respondents Nos.1 and 2. After development of prototype the respondent No,1 approached Mr. Sohail P. Ahmed to attempt to discuss some sort of arrangement for the mass production and marketing of the three wheeled motor vehicle in Pakistan, but Mr. Sohail P. Ahmed was very rude and abrupt and refused to even consider dealing with the respondent No,1 and offered the respondent No,1 'employment for a sum of Rs,25,000 per month, this was done by Mr. Sohail P. Ahmed while knowing fully well that the respondent No,1 was at that time in employment with TCS (Private) Limited, the respondent No,1 ended all association with the applicant, it was further submitted that after disagreement between Mr. Sohil P. Ahmed and the respondent No,1 Mr. Sohail P. Ahmed approached the respondent No,2 to come into employment with the applicant and to develop a four wheeled motor vehicle for the applicant, who being unemployed accepted the employment of the applicant and was on 19-6- 1999 paid a sum of Rs:526,316 for such a project. It was further submitted that the respondent No,1 being creator of the design of the three wheeled motor vehicle in February, 2001 applied for and was granted a Registration No,10651-D in relation to the three wheeled motor vehicle.
5. ' The applicant has filed its rejoinder to the counter-affidavit filed by the respondents Nos. 1 and 2. It is stated in the rejoinder that the respondents are deliberately misleading the Court by giving the impression that the applicant was not permitted or was in some manner precluded from dealing in the manufacture and design of motor vehicles in the manufacture and design of motor vehicles prior to the insertion of clause 10-A in the Memorandum of Association of the applicant. It is further submitted that the story of respondents Nos. 1 and 2 is the stuff of fiction and bears no relevance to the contractual obligations that the same entered into with the applicant. It is further submitted that the respondents Nos.1 and 2 are deliberately and with malice, afterthought, denying their contractual obligations to the applicant and the respondents Nos.1 and 2 have no legal claim over their project other than as employees of the applicant specifically engaged to design and develop the project at the behest, guidance and supervision of the applicant, the entire project was developed and completed by, the applicant and it is an admitted fact that the respondents Nos.1 and 2 did not have the resources to develop such a prototype.
6. ' In support of his contention the learned counsel for the applicant submits as under:--
(1) It is an -admitted position that the applicant provided facilities and resources to the respondents Nos.1 and 2 to work on design.
(2) A sum of Rs,526,316 was provided to the defendant No,1 through respondent No,2 and since the respondent No,1 was compensated, he has no right in the design. He further submits that in the case Court come to the conclusion that the amount was paid to the respondent No,2 then respondent No, 1 would have same right in the design jointly with the applicant.
(3) The respondent No,1 was a paid consultant and was compensated by payment of Rs,526.316 and a car.
(4) The respondent No,1 has got the registration by misrepresentation and by concealment of fact.
(5) He refers to subsection (1) of section 2 of Registered Design Ordinance, 2000 and submits that rights of the applicant has fully protected and only the applicant is entitled to get the registration of design as its creator and proprietor.
7. ' The learned counsel for the applicant has relied upon the following judgments from foreign jurisdiction:--
(i) Ward Lock and Co. Limited v. Long (1906) 2 Ch. D.
8. 550.
(ii) Lawarence and Buller Limited v. Aflalo and Cook 1904 Appeal Cases 17.
(iii) Lamb v. Evans (1993) 1 Ch 218.
9. ' On the other hand, Mr. Abdul Rehman, learned counsel for the respondents Nos.1 and 2 submits as under:--
(1) There is no evidence to show that the applicant has paid any remuneration to the respondent No,1 and that the respondent No,1 worked under the guidance of the applicant.
(2) The applicant has provided its facilities and resources as gratis.
(3) The application being in the nature of summary application is not maintainable and the factual controversy cannot be resolved.
(4) That the applicant does not fall within the definition of proprietor or creator of a design as defined in subsection (1) of section 2 of Registered Design Ordinance, 2000.
(5) The applicant has no authority under its Memorandum of Association to conduct the business of manufacture of motor vehicle.
10. ' The learned counsel for the respondents Nos.1 and 2 has relied upon following reported cases:--
(i) Muhammad Mohsin Butt r. Muhammad Inayat Butt 2005 CLD 747.
(ii) PLovince of West Pakistan v. Mahboob All PLD 1976 SC 483.
(iii) The Attorney General and Ephraim Hutchings (Relator) v. The Directors and The Co. Of The Great Eastern Railway (1880) 5 HL 473.
(iv) Ashbay Railway Company v. Riche (1860) 8 HLC 721.
(v) Fida Ali Yousuf Ali v. Graxalt PLD 1967 Karachi 637.
(vi) Commissioner for Income Tax (Central) Karachi v. Messrs Habib Insurance Company Limited Karachi PLD 1969 Karachi 278.
(vii) The United Bank Limited v. Messrs Pak Wheat Products Limited PLD 1970 Lahore 235.
11. ' The learned counsel for the applicant exercising his right of rebuttal submits as under:-
(i) There is no factual controversy and the matter can be decided in a proceeding of summary nature.
(ii) The applicant under clauses 12, 22 and 23 allows, the applicant to do any other business and relied upon the case of Bell Honges v. City Wall Properties (1966) 2 All ER 674.
(iii) He refers to section 496 of Companies Ordinance, 1984 and submits that in view of this section the dealing between the applicant and the respondent No,1 cannot be nullified and the effect is that for unauthorized business the director can be penalized.
12. ' I have heard the learned counsel for the parties and perused the record and the judgments cited at bar.
13. ' From the pleading of the parties, , the position which emerges is that the applicant has financed the development of three wheeled vehicle and the respondent No,1 has put his skill, time and labour to complete the project. Both the parties have admitted that there is no written agreement between the parties. The plea of the applicant is that they have compensated the respondent No,1 by paying a sum of Rs,5,26,316 to respondent No,2 and the plea of respondents Nos.1 and 2 is that the applicant has provided the facilities as gratis.
14. From the pleadings, it appears that both parties have not correctly set forth the true facts. It is not appealable to any prudent mind that the compensation for a work started in 1997, which relates to develop a design of unique nature and ended in 1999 will be only Rs,5,26,316. It is also not appealable to a prudent mind that any commercial organization will provide its finance and facilities as gratis. The payment of Rs,5,26,316 was admittedly made in the name of respondent No,2 and the explanation offered by the applicant is not plausible and cannot be accepted. Both the parties are trying to take advantage of verbal understanding between them and are not fair to each other.
15. ' The contentions of Mr. Rashid Anwar, learned counsel for the applicant, is that the applicant by compensating the respondent has acquired the exclusive right in the design and the respondent No,1 has no right. The contentions of Mr. Abdul Rehman, learned counsel for respondents Nos. 1 and 2, is that the respondent No,1 is the proprietor and has exclusive right in the design. He pointed out that there is an ambiguity and absurdity in the definition of "Proprietor or creator of design" and the definition of proprietor or creator fails to define the person, who actually made the design. He further submits that literal interpretation to the section if adopted a person puts forward a registered design then the person who actually created the design is excluded from the purview of the definition. Mr. Abdul Rehman may be right but the Court is bound to interpret a statutory provision as it is and not as it should be. However, this cannot be decided without hearing the Attorney General of Pakistan or his nominee. In this case, it is not disputed that the respondent No,1 has worked for the design. The dispute is who is entitled to have the design registered in his favour.
16. Mr. Rashid Anwar contends that the respondent No,1 executed the work for consideration for the applicant, as such, the applicant is entitled to registration of design. In absence of any agreement in writing it is not clear from the pleadings of the parties on what consideration the applicant and the respondent No,1 joined hands and worked for the design. These proceedings are summary in nature and complicated questions of facts are involved. Generally the Courts declined to investigate complicated question of facts in summary proceedings. However, in the case of Muhammad Moshin Butt v . Muhammad Inavat Butt 2005 CLD 747, Mr. Justice Ata-ur-Rehman (as he then was) while dealing a case under Companies Ordinance discussed section 9 of the Companies Ordinance, 1984, which provides that in the exercise of jurisdiction the Court shall follow summary procedure and has held as under:-- "The sum-up of the dictionary meanings of summary proceedings referred above is that the case is .To be disposed of promptly in simple manner out of the regular course of the common law. No where is there a restriction on the forum in, recording the evidence for final conclusion. If the matter can be decided by apparent, perusal of the pleadings, it may be done so and if the Court deems necessary to frame point of determination and record evidence, the Court must not hesitate to do the needful on the ground that intricate and complex question of facts are involved. The decisions of the Indian jurisdiction appear to have . Considered this aspect in the larger interest of the parties and encouraged the Court to exercise the power conferred upon them liberally. See (1993) 76 Company Cases 1. I am of the considered view, that there is no limitation on the powers of the Court in regard to the manner in which the power has to be exercised under the Ordinance; and that the power should be liberally exercised without driving the parties to agony by ordering the litigation to be carried out before some other forum".
17. The Registered Design Ordinance, 2000 do not provide any procedure for the High Court to follow in hearing applications under section 10 of the Ordinance. Although section 25 provides for evidence before Registrar.
18. ' In absence of any prescribed procedure the High Court may adopt any procedure.
19. ' From the above judgment, it is clear that unless specifically prohibited the Court is empowered to frame issues and can take evidence to resolve the dispute once for all. In this case also due to absence of any agreement in writing it is difficult, to give any findings on the basis of affidavit and counter-affidavit of the parties. In my view the best course available is to frame the issues and to direct the parties to prove their respective contentions by way of evidence.
20. ' I, therefore, direct the parties to file their respective issues and after framing of the issues the parties will be at liberty to produce evidence in support of their claim. The office is also directed to issue notice to the learned Attorney General for Pakistan to appear himself or to nominate any of his Law Officer to appear in this case.