' This judgment will dispose of. Miscellaneous Appeals Nos.1 of 1986 and 2 of 1986 as common questions of facts and law are involved.
2. Tabbaq Restaurant Rawalpindi, appellants and Tabbaq Restaurant Lahore respondents both applied to the Registrar of Trade Marks, Karachi for registration of their trade mark and then also moved the opposition petitions against each other. The matter was taken up by the Deputy Registrar and after taking evidence he decided to register the trade mark of the respondents and to uphold its opposition against the appellants and rejected the request of the appellants and also rejected its opposition against the respondents. The appellants challenged the orders of the Deputy Registrar, dated 3-6-1985 in two separate appeals before the High Court of Sind at Karachi.
These appeals were disposed of on 24-12-1985. It was held that the High Court of Sind had no jurisdiction. The appeals were returned for presentation before the proper Court. The appellants received the memorandum of appeal and the annexures on 22-1-1986 and filed them before the Rawalpindi Bench of the Lahore High Court on 23-1-1986. The appeal was admitted to regular hearing on 22-2-1986 but the respondents have moved application for dismissing the appeals on grounds of limitation. These applications are being disposed of by a single order in the two appeals.
3. Under rule 84 of the Trade Marks Rules, 1963 a period of two months has been provided for appeals. The appeals were filed within time before the High Court of Sind, but in filing the appeals in Lahore High Court there is a delay of nearly eight months. The appellants, however, moved an application for condo nation of delay on 9-2-1986, which is being opposed by the respondents.
4. The learned counsel for the respondents has argued that provisions of section 5 of the Limitation Act are not available to the appellants in view of the provisions of section 29 of the Limitation Act.
This point has frankly been conceded by the learned counsel for the appellants although the appellants insist that provisions of section 14 of the Limitation Act are still available to them as the appellants can claim that the period spent by them in the High Court of Sind can be lawfully excluded. In this regard the contention of the appellants is that the appeals were preferred in the High, Court of Sind as an appeal would lie to that Court against the orders passed by the Registrar of Trade Marks Karachi. As regards the proviso to section 76 of the Trade Marks Act, 1940 which makes an exception to the general rule, the learned counsel contends that the pendency of the suit at Rawalpindi of the year 1982 was in good faith, believed by the appellants to be no bar to the appeals at Karachi as, according to the appellants, no trade mark had been registered until 1985. It is contended by the learned counsel that the appeals were being prosecuted in the High Court of Sind diligently and in good faith and, therefore, the period spent by them in pursuing the appeals at Karachi should be excluded in computing the period of limitation. The learned counsel has also stated that immediately on receiving the memorandum of appeal on 22-1-1986 the appellants filed appeals in the Lahore High Court, Rawalpindi Bench on 23-1-1966 without loss of any further time.
5. The first question to be considered is whether section 14 of the Limitation Act is applicable at all.
The learned counsel for the respondents has argued that this provision is applicable only to suits and original proceedings and not to the appeals. In this regard, he relied on the language of the section itself and has also referred to the case of. Abdul Ghani v. Ghulam Sarwar PLD 1977 SC 102.
The learned counsel has also referred to a recent judgment of the Lahore High Court by a, Division Bench in the case of Abdul Ghani v. Mat. Mussarat Rehana 1985 CLC 2529. The learned counsel for the appellants, on the other hand, has referred to the case of General Secretary A P.W.R.
(Workshop) Lahore v. Registrar Trade Unions and another PLD 1969 Lat. 1080 in support of his contention, that application referred to in section 14(2) of the Limitation Act includes application by way of an appeal. But obviously reliance has to be placed on the judgment of the Supreme Court and the judgment of a Division Bench of the Lahore High Court referred to above, where it has been clearly held that section 14 of the Limitation Act applies to suits and not to appeals.
6. The learned counsel for the respondents has further argued that the appellants did not pursue the appeals before the High Court of Sind in good faith as, according to him, they did not exercise due care and attention before trying to find out whether an appeal was competent before the High Court of Sind or not. It has already been held in the present case that appeal was not competent before the High Court of Sind but to argue that there was a genuine difficulty which led the appellants to believe that such an appeal was competent, the appellants lay heavy emphasis on the proviso to section 76 of the Trade Marks Act which creates an exception to the general rule, but in my opinion the language of the proviso is not complicated and a simple reading of the proviso would show that the pendency of a suit or other proceedings concerning the trade mark in question would determine the jurisdiction of the appellate Court. It is an admitted fact that a suit was pending at Lahore in 1981 which was subsequently refiled at Rawalpindi in 1982 and that this suit concerned the trade mark in question. On account of the pendency of the suit, the Court competent to hear the appeal was the Lahore High Court and a simple reading of the proviso would have provided the correct answer to the appellants if they had taken sufficient care to look at the provisions of law. If the appellants have decided to interpret the language so as to read the registered trade mark in it, they have done so at their own risk. As regards the advice of the senior counsel at Karachi, the learned counsel for the appellants has readily agreed that an incorrect advice by a counsel is no ground for extension of time.
7. The High Court of Sind disposed of the two appeals on 24-12-1985 and directed that the appeals be returned to the appellants for presentation before the proper Court. There has been a further delay on the part of the appellants of almost a month. It was only on 22-1-1986, that they applied and received the memorandum of appeal and its annexures. There is no explanation for this delay.
The learned counsel for the appellants stated that he had been waiting for a notice from the High Court of Sind asking him to receive the memorandum of appeal, but he has not been able to show any rule requiring the issue of a notice before the memorandum of appeal could be returned to the appellants. The learned counsel even obtained extra time in order to look up the law but has expressed his failure in finding one. The delay between 24-12-1985 and 22-1-1986 clearly shows lack of diligence on the part of the appellants, thus again disentitling them from taking benefit of section 14 of the Limitation Act,
8. In view of the above considerations, it is obvious that the appeals are barred by limitation. There is no justification for enlarging the time. The two appeals are, therefore, dismissed with costs.