' SHAHID ANWAR BAJWA, J.---A suit for declaration and injunction was filed by respondent No,1, Messrs English Biscuit Manufacturers Private Limited, (hereinafter referred to as EBM) against present respondents Nos.2 and 3. The brand name in question was "Peek Freans". It was stated in the plaint that name and trade mark Peek Freans was owned by a British company, Peek Freans and Company Limited, U.K. Since 1949. It applied for its registration in Pakistan and it was duly registered on 13-9-1965. Following registration, EBM under an understanding with Messrs Peek Frean U.K. Started using the mark in Pakistan and has continued using it eversince. Later on mark was assigned by Peek Frean and Company Limited U.K. To Associated Biscuits Limited and such assignment was duly recorded by Registrar of Trade Marks on 11-4-1970. In 1970 EBM entered into an agreement with. Associated Biscuits Limited for use of trade mark in Pakistan as a registered user and application for registration as a registered user was allowed by Registrar Trade Marks w,e,f, 16- 2-1971. Such registration was renewed till 12-9-1987. In 1986 an organization calling itself Nabisco Group Grocery Division applied for recording of the trade mark in its name. While such application was still pending registration in favour of EBM itself expired. While such applications for assignment of trade mark by Nabisco Group Grocery Division as well as application for renewal were still pending another application was filed by Jacob's Bakery Ltd. The present applicant (hereinafter referred to as JACOBS) claiming that Nabisco Group Grocery Division did not exist as corporate entity at that time. A number of other applications were filed. On 29-3-1994 JACOBS filed an application for registration claiming itself to be subsequent proprietor by virtue of deed of assignment between Nabisco Group Grocery Division and Associated Biscuit. This application was subsequently dismissed which order was challenged in M.A. No, 21 of 2001 which appeal is pending in this Court. In the suit the following prayers were made:- "A. Declare that the Trade Mark No, 44140 "PEEK FREAN'S" stands abandoned and is res derelicta, and that its use by defendant No,1 or anyone claiming on their behalf would be deceptive in terms of section 8(a) of Trade Marks Act, 1940.
B. Declare that reputation in Trade Mark No, 44140 over the years has accrued to the plaintiffs and they have a vested right in the Mark and hence are entitled to have the said trade mark registered in their own name. C. In the alternative declare that plaintiffs are entitled to the use of the said Mark in perpetuity as per their agreement dated 14-10-1970 with defendant No,1 and grant permanent injunction restraining the defendant No,1 or any person or persons acting or purporting to act on their behalf or under or through them or any other person or persons whatsoever from interfering in Plaintiffs use of Trade Mark No, 44140.
D. Grant permanent injunction restraining the defendant No,2 from cancelling Plaintiffs registration as the Registered user of the Trade Mark No, 44140."
2. While this suit was pending an application under Order I, Rule. 10, C.P.C. Was filed by JACOBS. This application was disposed of vide order dated 15-12-1997. Operative part of the order reads as under:-- "This circumstance by itself tends to show that defendant No,1 appears to have abandoned transferred or assigned its right in favour of the third party whose application is pending decision before the Registrar Trade Marks, presumably for the reason that on plaintiffs' application an interim order for maintenance of status quo was passed by this Court as far back as 13-5-1996.
There may be other reasons as well for not deciding such application by the Registrar with which I am not concerned at the Moment. In view of the nature of interest and right expressed by the intervener, I am of the view that assuming for the moment they be not necessary party to the suit at least they are proper party to the proceedings and their joinder would be essential for a just, proper, effectual and complete adjudication of the dispute. Needless again to over emphasis the question of rights in favour of the intervener is yet to be decided by the Registrar of Trade Marks who shall take steps for disposing of both the applications at his with expedition..
5. For the aforesaid facts and reasons, I grant this application.. Amended title shall be filed in office within two weeks with necessary averments where after newly joined defendant shall file a written statement."
3. In the suit on 8-3-1999 issues were framed. The relevant issues were as under:-- "(1) Whether the assignment of trade mark "Peek Freans" in favour of the defendant No,3 is defective, spurious and of no legal effect?
(2) Whether the trade mark "Peek Freans" was abandoned by defendant No,1 and if so, what is the effect?"
4. It may be pointed out that defendant No,3 was JACOBS and defendant No,1 was Associated Biscuits Limited. In the meanwhile due to increase in the pecuniary jurisdiction of the subordinate Courts in respect of civil suits in Karachi, the suit was transferred to subordinate courts. During the pendency of all these proceedings another development that, took place was that the Registrar of Trade Marks on 20-1-2001 passed an, order to the following effect:-- "Besides NGGD had failed to prove their title to the mark and ABL had subsequent to alleged assignment, reasserted their title to the mark. Moreover it is an admitted position that NGGD has since ceased to exist as a corporate entity (this admission appears on pages 4 and 5 of the Written Statement filed in Suit No,405 of 1996 by ABL). Therefore no one can come forth to remove these objections raised by the Registrar at the time of the filing of application. Nor can any Attorney appear on behalf of JGGD as NGGD is now extinct or dead and under the law of this application was still pending JACOBS came up with their application. He submitted that since trade mark law is territorial in operation and since Associated Biscuits Ltd. Was the registered owner in Pakistan only ABL was joined as defendant; Registrar of Trade Marks being pro forma defendant. He submitted that issue No,1 was framed because at that time question of registered user was pending before the Registrar of Trade Marks but when the Registrar of Trade Marks decided the matter vide order dated 20-1-2001 this was no longer an alive issue and consequently, application under Order I, Rule 10(2), C.P.C. Was filed. He submitted that when there remained no locus standi left with the JACOBS it became an improperly joined party particularly so when no stay had been granted in appeal.
Learned Counsel next argued that scope of powers exercisable in revision is limited to what is stated in section 115, C.P.C. And revision cannot be treated as equal to appeal. He submitted that remedy of revision is not available against a wrong order passed within the jurisdiction of a Court.
He relied upon Muhammad Husain Munir and others v. Sikandar and others PLD 1974 SC 139, Nawab Syed Raunaq Ali and others v. Chief Settlement Commissioner and others PLD 1973 SC 236, Sultan Shah and 5 others v. Province of Sindh and 4 others 2010 YLR 528, Muhammad Idrees and others v.
Muhammad Pervaiz and others, 2010 SCM R 5. Learned counsel referred to the grounds raised in the revision application and submitted that none of these grounds is applicable.
8. While exercising his right of reply Mr. Zahid F. Ibrahim submitted that since application for registration has been dismissed vide order dated 20-1-2001 passed by the Registrar of Trade Marks there could not have been any question of filing any stay application. He submitted that proceedings which are still pending in appeal and are continuation of proceedings of the suit.
9. I have considered the submissions made by the learned counsel and have also gone through the record as well as the case-law cited at the bar.
10'. The essential basis of the impugned order quoted in Para 5 above is that the application of JACOBS has been dismissed by the Registrar of Trade Marks and therefore JACOBS no longer fell within the concept of proper party, and is consequently been ordered to be deleted. Now appeal against the order of the Registrar Trade Marks is pending and question would be as to what would be the consequence of pendency, of appeal even when no order staying the operation of the order impugned in the appeal has been granted.
11. As far as stay order is concerned, vide order passed by the Registrar Trade Marks, application of JACOBS has been dismissed by Registrar of Trade Marks. Mr. Zahid F. Ibrahim appears to be correct in arguing that what kind of stay order could be passed in appeal in such a situation. Obviously the Appellate Court could not have, while the appeal is pending, order registration. Mr. Zahid F. Ibrahim submitted that no application for stay has been filed. Therefore, question of staying of operation of order impugned in appeal is totally immaterial in the circumstances of the present case.
12. Question of impact of appeal and its position came up for consideration before the Hon'ble Supreme Court in F. A. Khan v. The Government of Pakistan, PLD 1964 SC 520 and Mr. Justice B. Z.
Kaikaus observed as under:-- "In respect of the nature of an appeal the following proposition may be regarded as established:
(i) when an appeal is filed the matter becomes sub-judice and is reheard by the appellate Court which does not Act merely as a Court of error;
(ii) after there has been an appeal even though an appellate Court simply affirms the order of the original Court the only decree or order in existence, is the order of the appellate Court;
(iii) the original and appellate proceedings arc steps in one proceedings."
His lordship then after discussing the bases of first and second proposition, in respect of the third proposition observed as under:-- "The third proposition should really follow from the first two, but reference may be made in this connection to the judgment of the Supreme Court of India in Garikapati Veeraya v. Subbiah Choudhry (PLD '1957 SC (Ind.) 448) whereafter an exhaustive review of cases it was held that "the legal pursuit of a remedy, suit, appeal and second appeal, are really but steps in a series of judicial proceedings all connected by an intrinsic unity and are to be regarded as one legal proceeding". We are not at all unfamiliar with cases where an appeal is said to be a continuation of a suit or is included within the word suit. The Legislature when it provides a hierarchy of tribunals for the determination of a dispute is really providing one complete procedure for such determination, proceedings before different tribunals being only steps in this procedure."
13. The same position has been reiterated by the Supreme Court in WOW All v. Syed Sajid Ali, 1985 SCMR 401 and in Abdul Rehman v. Haji Ghazan Khan, 2007 SCM R 1491. Thus, since the appeal is pending an appeal is continuation of the Proceedings the very basis on which the order impugned in this Revision Application falls and therefore the impugned order cannot be allowed to stay.
14. Mr. Shaiq Usmani vehemently argued that scope of powers in Revision is limited. His argument was that even if a factually wrong order has been passed by a Court of competent jurisdiction such error, cannot be corrected in exercise of revisional jurisdiction. He relied upon Muhammad Hussain Munir's case (supra) where in the context of Article 98 of the Constitution of 1962 it has been obverted as "The argument in our opinion is unexceptionable. It is not controverted that the matter before the learned Single Judge fell to be dealt with under paragraph (ii) of sub-clause (a) of clause (i), Article 98 of the 1962 Constitution. That being so, the learned Judge could have set aside the order, if he had reached the conclusion that the revisional order of the learned Member, Board of Revenue was "without lavvful authority and of no legal effect." These are expressions of art and refer to jurisdictional defects as distinguished from a mere erroneous decision whether on a question of fact or even of law. It is well settled that where a Court or a tribunal has jurisdiction and it determines that question, it cannot be said that it acted illegally or with material irregularity merely because it came to an erroneous decision on a question of fact or even of law. "
15. Learned counsel next relied upon Nawab Syed Raunaq Ali's case (supra) where it has been observed as under:-- "The ratio of the decision, therefore, appears to be that where finality is 'given to the decision of a certain body which has also the jurisdiction to decide finally facts upon which its own jurisdiction is founded, that decision cannot be called in question in any other collateral proceeding by another tribunal or body of limited jurisdiction."
16. Learned counsel also relied upon Sultan Shah's case (supra) where in respect of scope of revisional jurisdiction, it has been held as under:-- "Scope of interference in revisional jurisdiction is quite limited. A revisional court can only interfere if the Court below has exercised a jurisdiction not vested in it by law or has failed to exercise jurisdiction so vested or has acted in exercise of its, jurisdiction illegally or with material irregularity None of these is attracted to revision application of applicants. This revision application is, therefore, dismissed in limini along with listed application and with costs."
17. Lastly learned counsel relied upon Muhammad Idrees's case (supra) where in respect of revisional jurisdiction it has been observed by the Hon'ble Supreme Court as under:-- "It is settled proposition of law that each and every case is to be decided on its own peculiar circumstances and facts as law laid down by this Court in Muhammad Saleem's case 1994 SCM R 2213. It is also settled law that findings on question of fact or law, erroneous the same may be recorded by the Court of competent jurisdiction, cannot be interfered with by the High Court in exercise of its revisional jurisdiction under section 115, C.P.C. Unless such findings suffer from controversial defects, illegality or material irregularity as law laid down by the Privy Council in Hindu Religious Endowments Board, Madras' case PLD 1949 PC 26. With regard to section 115, C.P.C. It is observed by the Privy Council as under:--
(1) This section empowers the High Court to satisfy itself upon three matters:
(a) That the order of the subordinate Court is within its jurisdiction.
(b) That the case is one in which the Court ought to exercise jurisdiction.
(c) That in exercising jurisdiction: the Court has not acted illegally, that is in breach of some provision of law, or with material irregularity, that is, by committing some error of procedure in the course of the trial which is material in that it may have affected the ultimate decision. If the High Court is satisfied upon those three matters, it has no power to interfere because it differs however, profoundly, from the conclusion of the subordinate Court upon questions of facts or law."
18. On the other hand, learned counsel for the applicant relied- upon Raja Hamayun Sarfraz Khan's case (supra) where the Hon'ble Supreme Court it has held as under:-- "It is a settled law that High Court had vast powers under section 115 of C.P.C. As observed by this Court in Muhammad Mian's case 1995 SCM R 69. The relevant observation is as follows:- "It should not be forgotten that the scope of the revisional powers, though hedged by conditions, is nevertheless vast and corresponds to a remedy of certiorari and the supervisory jurisdiction can be invoked by the Court suo motu and the Court can also made "such order in the case as it thinks fit."
19. Learned counsel also relied upon Ch. Muhammad Shafi v. Shamim Khanum 2007 SCM R 838 and Haji Rehmdil's case (supra) where in the later case it has been observed by the Supreme Court as under:-- "It seems to us that in cases, involving patent abuse of jurisdiction and injustice, the Court, exercising powers under section 115, C.P.C. Even where the revision petition, brought by an aggrieved party, is barred by time, still has a discretion to invoke its own suo motu revisional authority to advance justice and to suppress mischief, albeit only when a jurisdictional error, in contemplation of the section, is encountered-. It need hardly be reiterated that technicalities, unless resorted to in aid of justice and fair play, have little room in the wide field .Occupied by judicial dispensations. Deviating from the earlier rule that where jurisdiction vests in a Tribunal to decide, the Tribunal can decide rightly as well as wrongly, the current view of this Court, as, inter alia, reflected in U.S. Corporation of Pakistan Ltd. v. L.A.T., PLD 1987 SC 447, is that where jurisdiction vests to decide a controversy, such can only be decided rightly and not otherwise. Further, where Tribunal goes wrong in law, it also goes outside the jurisdiction conferred on it by law."
20. As far as, case of Muhammad Hussain Munir (supra) is concerned that observation itself been clarified by the Supreme Court in Utility Stores Corporation of Pakistan Limited v. Punjab Labour Appellate Tribunal and others, PLD 1987 SC 447 in the following words:-- "I cannot agree with the learned Judge in the High Court. The view of the learned Judge that this Court has ruled that even if the order of a Tribunal is wrong in law, the High Court still cannot intervene in exercise of its constitutional jurisdiction is not justified and I feel that the judgments of this Court in the cases of Muhammad Hussain Munir (PLD 1974 SC 139) and Zulfiqar. Khan Awan (1974 SCM R 530) have not been read in their proper context. It is not right to say that the Tribunal, which is invested with the jurisdiction to decide a particular matter, has the jurisdiction to decide it "rightly or wrongly" because the condition of the grant of jurisdiction is that it should decide the matter in accordance with the law. When the Tribunal goes wrong in law, it goes outside the jurisdiction conferred on it because the Tribunal has the jurisdiction to decide rightly but not the jurisdiction to decide wrongly. Accordingly, when the tribunal makes an error of law in deciding the matter before it, it goes outside its jurisdiction and, therefore, a determination of the Tribunal which is shown to be erroneous on a point of law can be quashed under the writ jurisdiction on the ground that it is in excess of its jurisdiction."
21. Nawab Syed Raunaq Ali's case relied upon by the learned counsel for EBM . The Supreme Court went on to observe as under:-- "This is no doubt correct, but it is also now well established that where an inferior tribunal, or court has acted wholly without jurisdiction or as Rubinstein puts it in his book on "jurisdiction and illegality" taken any action "beyond the sphere allotted to the tribunal by law and, therefore, outside the area within which the law recognizes a privilege to err", then such action amounts to a "usurpation of power unwarranted by law" and such an act is a nullity: that is to say, "the result of a purported exercise of authority which has no legal effect whatsoever". In such a case, it is well established that a superior Court is not bound to give effect to it, particularly where the appeal is to the latter's discretionary jurisdiction. The Courts would refuse to perpetuate, in such circumstances, something which would be patently unjust or unlawful.
' An order in the nature of a writ of certiorari or mandamus is a discretionary order. Its object is to foster justice and right a wrong. Therefore, before a person can be permitted to invoke this discretionary power of a Court, it must be shown that the order sought to be set aside had occasioned some injustice to the parties. If it does not work any injustice to any party, rather it cures a manifest illegality, then the extraordinary jurisdiction ought not to be allowed to be invoked."
22. In Muhammad Idrees's case (supra) a suit for possession of shop was filed the trial Court decreed the suit, appeal was dismissed by the Appellate Court and so was the revision by the High Court. The Supreme Court did not think it to be a fit case to interfere with the order passed by the three forums below and the observations made must be seen in peculiar circumstances of the case. In Sultan Shah's case (supra) which is a judgment authored by me the matter pertained to alleged encroachment on a piece of land. Suit was decreed by the trial Court and appeal was dismissed by the Appellate Court. The entire merits of the case were discussed and since nothing wrong was found with the order, the revision application was dismissed.
23. In the case in hand, as observed above the order of the Appellate Court is premised only on the point that application for registration has been dismissed by the Registrar Trade Marks and therefore JACOBS has lost 4ocus standi. The question regarding fact of pendency of appeal has not been appreciated by the Court below and as I have come to the conclusion that appeal is continuation of the proceedings therefore, for the reason that application under Order 1, Rule 10, C.P.C. Was allowed in the first place, it could not be said that inspite of pendency of appeal JACOBS could have been knocked out merely on the ground that application has been dismissed by the Registrar of Trade Marks. Suppose ultimately the appeal is allowed, would the parties go back and again file application under Order I, Rule 10, C.P.C. And the whole proceedings go back to starting point obviously this could not be intention of the law.
24. Result of the above discussion is that this revision application is allowed and the impugned order dated 13-5-2006 is set aside and application under Order I, rule 10(2), C.P.C. Filed by EBM is ordered to be dismissed.