1. ' MUHAMMAD ATHAR SAEED, J. ---This Trade Mark appeal under section 76 of the Trade Mark Act 1940 has been filed by the appellant who is dissatisfied with the order of the Registrar of Trade Marks in opposition No, 163 of 2002 dated 22-3-2003 vide which the Registrar despite disallowing the extension of time and dismissing TM-55 filed by the opponent for extension of time and also holding that the TM-5 (Notice of Opposition) filed by the opponent has become infructuous and applicant's application No, 129393 in class 4 shall proceed to registration with disclaimer of E4.
2. ' Learned counsel for appellant submits that since the entire opposition was dismissed as being time barred and the Registrar had dismissed the opposition holding that the notice of opposition had become infructuous he could not modify the order of the Deputy Registrar and order the applicant's application to proceed to registration with disclaimer of E4. He drew my attention to the letter of the Examiner of Trade Mark No, TM-OPP/7122/03 dated 30-4-2003 issued by Examiner of Trade Mark who is a subordinate officer to the Registrar intimating the counsel of the opponent and the counsel of the applicant that in the hearing held on 22-3-2003 before the Registrar of Trade Marks the belated TM-55 which was late by 99 days had been disallowed and the applicant's Application No, 129393 has been released to proceed further according to the Trade Mark Law.
3. Learned counsel for applicant also stated that after the order of the Deputy Registrar he has paid the registration fees under the direction of the Registrar and therefore he had acquired a vested right for the registration of his Trade Mark without disclaimer of E4. In support of his contention he relied upon the case of B.S. INDUSTRIES V. THE DEPUTY REGISTRAR, TRADEMARKS AND ANOTHER PLD 1969 Dacca 451. In this case he relied on the following observations of the learned High Court:-- "An application for registration of trade mark was, submitted on 16-6-1962. On 6-2-1964 the Deputy Registrar ordered advertisement of the mark in accordance with section 15 of the Trade Marks Act, 1940. Thereafter the applicant, by order dated 13-1-1965, was informed that "registration of trade mark relating to said application will be proceeded with on receipt of prescribed fee of Rs, 100". This fee was paid. On 19-7-1965 the Deputy Registrar, however, under direction of Registrar, issued notice to show cause why registration should not be refused and consequently, on 14-6-1967 refused registration. Before the High Court in appeal it was urged that the Deputy Registrar on 13-1- 1965 having made up his mind to grant registration the matter ended there and the subsequent order dated 14-6-1967 refusing registration was no order in the eye of law for it was the product of a biased mind influenced by the opinion of the Registrar: ' Held, when a statute confers a certain duty on an officer it is that officer who has to make up his mind and pass the order in accordance with law and exercise his discretion uninfluenced by any opinion of his superior officeRs, From the facts of the case it was clear that the stage of determination of the desirability of granting registration was over, and mere formalities for issuing certificates of registration were left to be done. That act was in the nature of a ministerial act. The scheme of Trade Marks Act, 1940 is that the Deputy Registrar while dealing with the registration of a trade mark exercises a power conferred on him by a statute and no appeal lies to the Registrar against his order. Therefore, the interference of the Registrar was absolutely in excess of the authority conferred on him by the statute and had the effect of vitiating the impugned order of the Deputy Registrar".
4. ' The arguments advanced by the learned counsel for the appellant carry a lot of force and the Registrar does not appear to be justified in ordering the applicant's applications to proceed to registration with disclaimer of E4 as no such disclaimer was ordered by the learned Deputy Registrar against whose order the opponent had filed the opposition. The impugned order therefore cannot be sustained and therefore his order is set aside to the extent of disclaimer of E4 and the order of the learned Deputy Registrar on this point is restored.
5. ' This appeal is disposed off in the above manner.