' The facts relevant for the purposes of this appeal are that the Saleem Cigarettes Industries Limited, appellant herein, had submitted an application to the Examiner of Trade Marks, respondent No,1 herein, under section 46 of the Trade Marks Act, 1940 (hereinafter referred to as the Act) for registration of their Trade Mark "AMBASSADOR" for cigarettes manufactured by the appellant. Due publicity to that application was given as required under the Act and Fabriques de Tabac Reunies, S.A., respondent No,2 herein, raised an objection that Trade Mark "MURATTI AMBASSADOR" was already registered in their name under Trade Mark No,48402 in Pakistan for their product of cigarettes being manufactured in Switzerland. The proceedings for the registration of the Trade Mark of the appellant were stayed and in the meanwhile the appellant moved an application under section 37 of the Act for removal of the aforesaid Trade Mark of respondent No,2 from the register and the rectification thereto on the ground of non-user. This application was also contested by the respondent No,2 herein. They inter alia contended that their aforesaid Trade Mark was already registered in Pakistan on 4-11-1967 under No,48402 but since the Government of Pakistan had placed a restriction on the import of tobacco, so it had not been possible for them to market any goods under its "MURATTI AMBASSADOR" Trade Mark in Pakistan in the past few years.
They pleaded this special circumstance for the non-user of their Trade Mark and resisted the aforesaid application of the appellant. These proceedings were still pending with the respondent No,1 herein when M/s. Premier Tobacco Industries Limited, respondent No,3 herein, filed an application for leave to intervene in these proceedings on the ground that they were agents in Pakistan of the registrant, respondent No,2 of the aforesaid Trade Mark "MURATTI AMBASSADOR". The respondent No,I allowed the said application of respondent No,3 dnd after perusal of the affidavits and other evidence of the parties dismissed the application of the appellant by order dated 10-4- 1986. Hence the appeal.In hand by the applicant.
2. A preliminary objection was raised by the learned counsel for respondent No,2 with regard to the territorial jurisdiction of this Court. His contention was that appeal was incompetently filed in this Court because under section 76 of the Act it should have been filed in the Sind High Court for the reason that application for registration of the Trade Mark was submitted by the appellant to respondent No,1 at Karachi and the application for rectification under section 37 was also made to the same respondent at Karachi and the order impugned in this appeal was also made at Karachi and his contention was that under section 76 of the Act the High Court having jurisdiction in the matter was the Sind High Court only.
3. Since this preliminary objection goes to the very root of the appeal and although I had heard argument on the merits of the appeal as well but I propose to decide the same on the point of jurisdiction only.
4. Subsection (1) of section 76 of the Act clearly lays down that an appeal shall lie from the decision of the Registrar under the Act or the rules made thereunder to the High Court having jurisdiction. It shall thus be seen that only that High Court would be competent to hear the appeal which has jurisdiction in the matter. It was common knowledge between the parties that there is no office of the respondent No,1 in Peshawar and during the days of these proceedings there was only one office of the respondent No,1 and that was situate at Karachi. No order was made by the respondent No,1 within the territorial jurisdiction of this High Court. Although the principal place of business of the appellant is situate in District Mardan within the territorial jurisdiction of this Court yet no proceedings were carried out within the jurisdiction of this High Court. The use of the words "having jurisdiction" after the words "High Court" in subsection (1) of section 76 of the Act is a very significant matter. The only connotation of the words "having jurisdiction" would be that only that High Court would have jurisdiction to hear the appeal within whose territorial limits the order impugned in appeal was made.
5. There does not seem to be much development of the case-law regarding Trade Marks in the superior Courts of this country with regard to the point of jurisdiction of the High Court but the learned counsel for respondent No,2 produced some judgments of the Indian High Courts. In the case of Abdul Ghani Ahmad v. Registrar of Trade Marks (AIR (34) 1947 Lah. 171) it was held that where application by person residing in Lahore for registration of Trade Marks was made to Registrar of Trade Marks at Bombay, the Bombay High Court and not Lahore High Court had jurisdiction to hear appeal. The following further observations were also made in this judgment: "The mere residence of a plaintiff or of a petitioner does not, in the absence of a statutory provision, invest a Court with jurisdiction and there is no provision of this kind either in the Trade Marks Act or in any other Act in respect of appeals from the decision of the Registrar of Trade Marks. In the absence of the establishment of any other offices in British India, all applications for registration of Trade Marks, barring those which can be made in Calcutta, must be made to the Registrar at Bombay and once they are decided by him, the High Court of Bombay alone would be competent to hear appeals against his decisions. The intention of the Legislature is not to confer jurisdiction on Courts from within whose jurisdiction applications were made but only on the Court where the office of the Registrar giving the decision was located.
' Hence, where an application for registration of Trade Marks is made by a resident of Lahore to the Registrar of Trade Marks at Bombay and the application is refused the jurisdiction to hear appeal from such decision lies with Bombay High Court and not with Lahore High Court."
' In another case of Chunulal Seetaram v. G.S. Muthiah & Brothers and others AIR 1959 Mad. 359 it was held that as the office of the Registrar of Trade Marks was situated in Bombay, the register of Trade Marks was kept at Bombay and the rectification was made in that register, it must be held that the High Court having jurisdiction in the matter was the High Court at Bombay and not the High Court at Madras. Two other recent cases of the Indian superior Courts were also brought to my notice one of 1975 and the other of 1979. In the case reported as Satyanarayana Khubchand Carva and others v. Ramchander Laxmi Narayan Karva 1978 IPLR Vol. 3 No, 1 page 1 with regard to the point of jurisdiction it was held by the High Court of Judicature of Andhra Pradesh as under:- "The appellants and the respondent were doing business at Hyderabad, Andhra Pradesh. An application for rectification of the Register in respect of the respondent's Trade Mark, made by the appellants was heard by the Assistant Registrar of Trade Marks, Madras, at Hyderabad and dismissed, the decision being rendered at Madras. The appellants presented an appeal from the Assistant Registrar's decision before the High Court of Andhra Pradesh. The office of the High Court raised objection that under the provisions of the Trade and Merchandise Marks Act, 1958, the appeal lay only to the High Court of Madras. As the appellants contended, that since the matter related to business at Hyderabad, that the parties lived and did business in Hyderabad and that the case was heard at Hyderabad, the High Court of Andhra Pradesh had jurisdiction to entertain the appeal the matter was placed before a Division Bench for orders.
' Held, returning the Memorandum of Appeal, (i) that having regard to section 2(h) read with section 3 of the Trade and Merchandise Marks Act, 1958, the High Court having jurisdiction was the High Court within the limits of whose appellate jurisdiction the office of the Trade Marks Registry was situate (ii) that since the appropriate office of the Trade Marks Registry relating to the matter, namely the office of the Trade Marks Registry at Madras, was situated within the appellate jurisdiction of the High Court of Madras, it was the High Court of Madras that had jurisdiction in respect of this matter and (iii) that further provisions of the Act supported this conclusions."
' In the case reported as Vikas Manufacturing Co. v. Bharaj Manufacturing Co. (1980 April) IPLR Vol.5 No,1 Page 16) the same point of jurisdiction has come up for decision and it was held as under by the High Court of Punjab and Haryana at Chandigarh:- "The petitioner filed an application in the High Court of Punjab and Haryana at Chandigarh for rectification of the Register by removal therefrom of the respondents' registered Trade Mark No,285959 in class 9. The respondents raised a preliminary objection that the Court had no territorial jurisdiction to entertain the application. The Court held that in view of the provisions of section 3 read with section 5 of the Trade and Merchandise Marks Act, 1958, it had no jurisdiction to entertain the application and that the Delhi High Court alone had the jurisdiction to entertain the application. The Court directed the office to return the application for presentation to the Court of competent jurisdiction."
5. It shall thus be seen that the High Court which has the jurisdiction to hear appeal from any order made under section 37 or section 46 would be the High Court where the office of the Registrar of Trade Marks is situate and where the proceedings for registration of a trade mark or for rectification in the Register of Trade Marks were carried out. There is no denying the fact that all those proceedings were commenced and completed at Karachi by the respondent No,1. Hence under section 76 of the Act the High Court having jurisdiction .Would be the Sind High Court and not this Court.
6. In the circumstances I am left with no alternative but to accept the preliminary objection of the learned counsel for the respondent No,2 and hold that the appeal in hand was incompetently filed in this Court because this Court had no jurisdiction to entertain the same. I will, therefore, direct the office to return the Memorandum of Appeal C to the appellant for presentation to the appropriate High Court. There shall however be no order as to costs.