MUNIB AHMEDKHAN,' J. --- This appeal has been filed against the Decision dated 25.10.2001, passed by the Assistant Registrar, Trade Marks on an application No. 144972 in Class 16 for registration of the mark CLIFFORD CHANCE, whereby registration of the above-mentioned mark has been refused.
2. Mr. Sultan Ahmed Sheikh, learned counsel for the respondent, at the very outset, has challenged the appeal on the ground of limitation and has pointed out earlier order of this Court specially order dated 16.5.2007 when he raised that objection. He has also pointed out Para-J of the grounds of appeal, which reads as follows:-- "(j) The Respondent's short order was communicated to the Appellant by Respondent's letter dated November 07, 2001. The Appellant applied for a certified copy of the Grounds of Decision on November 12, 2001 which was communicated to the Appellant by the Respondent through its letter dated July 9, 2002 which will be deemed to be the date of decision for the purposes of appeal according to Rule 25(3) of the Revised Trade Marks Rules, 1963 and therefore, this Appeal is within time in accordance with Rule 84 read with Rule, 25(3) of the Revised Trade Marks Rules, 1963."
3. He submits that according to admission of the appellant itself, short order was communicated to it on 7.11.2001 but no application for certified copy was filed immediately and was filed on 12.11.2001 while the decision was made available on 9.7.2002. He submits that in such a situation five days were consumed between the date of communication of the decision and making of application by the appellant, therefore, these five days to be included towards counting of two months period provided for filing of appeal under Rule 84 of the Revised Trade Marks Rules, 1963 against the order of the Registrar. He has further pointed out Rule 25, which provides that if an applicant intends to file an appeal then he would apply for reasons of the decision on Form TM-15 before the Registrar.
He argued that the period between the decision and making of application is necessary to be counted towards two months time provided for appeal, otherwise, every applicant will take a lenient view in making an application and may consume time according to his discretion. He has further added that a month is to be considered of thirty days while in the instant case two months i.e. July and August are involved, which are 31 days each, therefore, there will be further shortage of two days in this respect, he has relied upon PLD 1992 SC 417.
4. On the other hand, Ms. Amna Salman, learned counsel for the appellant, has argued that Rule 84 provides only filing of appeal against the decision and that can be filed within two months. She submits that decision was communicated to the appellant on 9.7.2002 and appeal was filed on 7.9.2002, which is within two months' time. She submits that time between the communication of decision and making of application is to be excluded: She has relied upon 1987 M LD 218, 1988 CLC 489 & 1973 SCM R 555. She submits that technicalities to be avoided and law requires decision on merits. She further submits that even otherwise if there is delay for 2/3 days then it may be condoned and that in the instant appeal there is no aggrieved party as none except the Registrar Trade Marks is appearing.
5. After hearing the learned counsel, I have observed that the decision of the Assistant Registrar is dated 25.10.2001 while application for certified copy was moved on 13.11.2001, which was made ready on 5.7.2002 while it was dispatched by letter dated 9.7.2002.
6. In the circumstances, the date of delivery is to be considered as 9.7.2002 as has been mentioned in Para-J of the grounds. As far as counting of 60 is concerned, it is to be seen that the order, appealed against, is of 25.10.2001 while application has been made on. 13.11.2001 and according to the learned counsel intimation of such decision was given on 7.11.2001, hence, there is difference of six days between 7.11.2001 to 13.11.2001, and these six days according to me, are to be computed towards counting of two months' time provided for appeal under Rule 84 of Trade Marks- Rules. The appeal was filed on 7.9.2002 while the reasons for the order were supplied on 9.7.2002.
7. In such a situation, if five days are taken out then appeal would have been filed on 4.9.2002, hence appeal is barred by three days. Rule 84 of the Revised Trade Marks Rules, 1963 specifically provides two months' time, which reads as follows:.--- "84. Time for appeal. An appeal to a High Court from any decision of the Registrar under the Act or these rules, shall be made within two months from the date of such decision."
8. Keeping in view the above legal provision, it appears that since word "Shall" has been used in Rule 84 while there is no application for condonation of delay nor the Limitation Act has been made applicable in this law as specific time period has been provided by the Special Law on the subject of Trade Mark. It is settled principle of law that even if the limitation is not pointed out or objected to by any party then Court itself has to consider as to whether the matter before it is within time or not and that the legal objection in respect to maintainability etc. Can be taken and raised at any time and same is to be decided on priority. The citation referred to by the counsel for the appellant do not suit the instant matter.
11. In view of the above facts and circumstances, I find that the appeal against the impugned decision is barred by time, hence dismissed. .