1. ' The respondent has filed an application for dismissal of the appeal on the ground that it is barred by limitation. The appeal is directed against the order of Assistant Registrar Trade Marks dated 7-7- 1981 rejecting the appellant's application for registration of the word 'Parrot Brand' on lable shown in specific colour scheme in respect of dry colour varnish. The appeal was filed on 20-12-1981. Mr. Zari the learned counsel for the respondent No, 2 has contended that after excluding the time taken for obtaining the certified copy the appeal is barred by time as it was presented after two months from the date of impugned decision. Mr. Ashraf the learned counsel for the appellant has contended that the respondent's application under sections 3 and 29 of the Limitation Act is not maintainable as Limitation Act is not applicable. He has further contended that as the period of limitation fixed by rule 84 has been extended by the Registrar under rule 76 up to 21st December, 1981, the appeal is within time.
2. ' To properly appreciate the contentions raised by the learned counsel for the parties it is necessary to examine the provisions of Trade Marks Act and Rules made thereunder. Section 76 of the Trade Marks Act, 1940 provides for appeal against the decision of the Registrar. It reads as follows :- ' Section 76.-(1) Save as otherwise expressly provided in this Act, an appeal shall lie, within the iperiod prescribed by the Central Government, from any decision of the Registrar * * * * under this Act or the rules made thereunder to the High Court having jurisdiction.
3. ' Provided that if any suit or other proceeding concerning the trade mark in question is pending before a High Court or a District Court or, as the case may be, to the High Court within whose jurisdiction that District Court is situated.
(2) In appeal by an applicant for registration against a decision of the Registrar under section 13 or section 14 or section 15, it shall not be open, save with the express permission of the Court to the Registrar or any party than those recorded in the said decision or advanced by the party in the proceedings before the Registrar, as the case may be ; and where any such additional grounds are advanced, the applicant for registration may, on giving notice in the prescribed manner, withdraw his application without being liable to pay the costs of the Registrar or the parties no opposing his application.
(3) Subject to the provisions of this Act and of rules made thereunder, the provisions of the Code of Civil Procedure, 1908, shall apply to appeals before a High Court under this Act.
4. ' Section 77 provides that the High Court may make rules consistent with this Act as to the conduct and procedure of all proceedings before it under this Act. Under section 84 the Central Government is empowered to make rules to carry out the purposes of the Act and without prejudice to the generality, matters in respect of which rules may be framed have been enumerated. The relevant rules of the Revised Trade Mark Rules, 1963 empowering the Registrar to extend time are reproduced hereunder :- Rule 76. Extension of time.-If in any particular case the Registrar is satisfied that the circumstances are such as to justify an extension of the time for doing any act or taking any proceeding under these rules, not being a time expressly provided in the Act or prescribed by rule 55 or 59, he may extend the time upon such notice to other parties, if any, and upon such terms as he may direct, and the extension may be granted though the time for doing the act or taking the proceeding has already expired. An application for extension of time shall be made in Form T.M.-55, on payment of the prescribed fee.
5. Rule 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 four months from the date of such decision, or within such further time as the Registrar may allow, provided that in calculating the said period of four months the time, if any, occupied in granting a copy in writing of the decision appealed shall be excluded.
6. ' By notification No, S. R.
0. 507 (1) of 1977 published in the Gazette of Pakistan Extraordinary dated 11-6-1977 which came into effect from 1-7-1977, rule 76 was amended and rule 84 was substituted by a new rule which are reproduced as follows :- Rule 76. Extension of time.-If in any particular case the Registrar is satisfied that the circumstances are such as to justify an extension of time for doing any act or taking any proceedings under these rules, not being a time expressly provided in the Act or prescribed by rule 55 or 59, he may extend the time upon such notice to other party, if necessary, and upon such terms as he may direct, and extension may be granted though the time for doing the act or taking the proceeding has already expired. An extension granted under this rule shall not exceed a period of more than one month at a time provided that the total period of such extension shall not exceed six months against each statutory period prescribed. An application for extension of time shall be made in Form T. M.-55, on payment of the prescribed fee".
7. Rule 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. ' Under rule 76 Registrar has the power to grant extension of time in respect of acts to be done or proceedings to be taken under the Rules provided the time required to be extended is not expressly fixed by the Act or rule 55 or 59. It also provides that application for extension of time shall be in Form T. M.-55.
9. ' By amendment the change brought about in this Rule is that an embargo has been placed on Registrar's power to grant extension of time. He cannot extend the time more than one month at a time, and further that the total period of such extension shall not exceed six months.
10. ' Before the amendment, rule 84 provided that appeal to a High Court from the decision of the Registrar shall be filed within four months from the date of such decision or within such further time as the Registrar may allow. The Registrar was thus empowered to extend the time for filing appeal.
11. This rule has been deleted and substituted by the present rule 84 which materially differs from the previous rule 84. It is patently clear that the period of limitation for filing appeal has been curtailed from four months to two months. Secondly the power of the Registrar to extend the time for filing appeal as provided by the previous rule has been deleted. The question therefore arises whether under rule 76 the Registrar can extend the time for filing appeal to the High Court.
12. The applicability of rule 76 is restricted to the proceedings under the rules, It is an admitted position that the right of appeal is conferred by section 76 but the period of limitation for filing such appeal has been provided by the rules framed by the Central Government. The right of appeal is a creature of the Act and not the Rules. Mr. Ashraf Ali has relied on rule 76 which empowers the Registrar to extend the time for doing any act or taking any proceeding under the rules. This power is therefore restricted to proceedings and actions under the rules. It does not confer such power in respect A of actions and proceedings taken under the Act. In rule 76 the words "Extension of time for doing any act or taking any proceedings under these rules" govern the extent of Registrar's power. These are words of limitation restricting the power of the Registrar in respect of proceedings and actions under the Rules. The words "under the Rules" signify such proceedings which are taken by virtue of rules, in pursuance of the rules or in accordance with the rules. In Raleigh Investment Co. Ltd. v. Governor General-in-Council (1) the phrase "assessment made under this Act", was interpreted to mean `an assessm ent finding its origin in any activity of the assessing officer acting as such..The phrase describes the province of assessment; it does no {{FOOT NOTE}}
(1) PLD 1947 PC 19 {{FOOT NOTE}} relate to its accuracy in point of law. The use of the machinery provided by the Act, not the result of that use, is the test.'
13. ' Under the rules various proceedings and actions can be initiated before the Registrar. These proceedings inter alia include application for registration of trade mark, renewal of Registration, entry of assignment and transmission, registration of a person as registered user, alteration of address, alteration or rectification of Register and alteration of trade mark. All such proceedings which emanate from the Rule and are dealt with by the Registrar under the machinery provided by the Rules fall within the perview of rule 76. In such matters the Registrar has the power to regulate the proceedings and extend the time fixed for taking such proceedings.
14. ' The right of appeal to the High Court is conferred by section 76. Merely because period of limitation for filing appeal has been fixed by the rules, the appeal cannot be treated as an action under the Rule. The appeal is filed against the decision of the Registrar in the High Court and no part of such proceeding is initiated before the Registrar nor he can under the Rules deal with appeals. It therefore does not sound to reason that the Registrar can regulate the proceedings before the High Court by extending the period of limitation without any specific rule to that effect. It is pertinent to note that rule 84 merely provides period of limitation and does not authorise Registrar. To entertain the appeal or grant any application for extension of time. Previously this rule had vested the Registrar with a power to extend the time. This specific power has been withdrawn from July, 1977 and even the period of limitation has been reduced from four months to two months. This shows that the Legislature did not only intend to curtail the period of limitation but also to a bridge the Registrar's power to extend the time for filing appeal.
15. ' Mr. Ashraf Ali the learned counsel for the appellant has contended that in, terms of rule 76 the Registrar has sufficient power to extend the period of limitation for filing appeal. According to him rule 76 provides a general power to extend the time therefore such power in the old rule 84 had become redundant and was therefore deleted. This does not seem to be a correct interpretation of these provisions. It is well settled that while interpreting a statute redundancy is not to be presumed, it should be avoided. Reading' rule 76 and rule 84 as they existed before July, 1977, it seems that the Registrar had the power to extend the time in respect of proceedings under the rules and specific power to extend the period of limitation prescribed for filing an appeal before the High Court was conferred by rule 84. These rules dealt with different spheres and actions. The harmoneous construction to these rules would be that rule 76 dealt with the proceedings under the rule and did not cover the appeal. As the power to extend time for filing appeal no longer exists in rule 84 it cannot be presumed that the same power can now be exercised by the Registrar under rule 76. Rule 76 is clear and un-ambiguous and does not extend to action and proceedings not taken under the Rules.
16. ' Another reason for excluding the applicability of rule 76 to appeals is that under rule 76 the application for extension of time has to be filed in Form T. M.
55. A pro forma of this form is prescribed under the rules which reads as follows :--- "FORM T. M.
17. Fee : Rs, 10 MEM, MININ11.1111111110,,,, TRADE MARKS ACT, 1940 Application for Extension of time (See rule 24(2) and rule 76)
18. Application No...............
19. Application is hereby made by (a) for extension of time by. . .. Month (s), for .Complying with the requirements of the Registrar communicated under his letter No dated the or (Strike the portion not required) for filing notice of opposition or counterstatement to registration of a trade mark No in Class . .. . Advertised in Trade Marks Journal No at page. , . . ..... On the day of... .. , .19, or (strike the portion not required) for supplying evidence in support of the application/opposition proceedings.
20. ' The reasons for making application are as under : ' Dated this........... Day of . 19 To ' The Registrar of Trade Marks, The Trade Marks Registry, Karachi."
21. This form indicates that extension of time can be sought in respect o proceeding taken under the Rule before the Registrar. It has reference to such proceedings and actions which are dealt with by the Registrar. This fact lends support to the interpretation that the power of the Registrar to extend the time does not extend to appeals filed before the High Court.
22. ' The appellants have contended that as Limitation Act is not applicable the application under section 3 of the Limitaton Act is liable to be dismissed. At best it means that application has been filed under a wrong provision of law. This objection is not sufficient to strike it down. The respondent ha brought to notice that the appeal has been filed after the expiry of the period of limitation. Such objection can be taken by the Court suo motu. If at any stage of the proceeding the Court comes to the conclusion that the appeal I barred by limitation it can dismiss it even if no application has been filed o has been filed under incorrect provision of law.
23. ' This appeal is patently barred by time and is-dismissed with no order as to costs.