1. SALEEM AKHTAR, J.---We propose to dispose of both these appeals by this common judgment as the facts and questions of law involved arc identical between the same parties. The appellant applied for registration of Trade Mark "TIGEN" on lable in class 3 under Application No.81555. Another application No.82138 was filed for registration of Trade Mark. "RIGEN" in block capital letters in class
2. It seems that proceedings in respect of registration of both the applications proceeded together and from onwards the facts are completely identical. The trade marks applied for registration were advertised before acceptance in the Trade Mark Journal No.409 dated 1-2-1985. Respondent No.l filed opposition against the registration of the said trade marks whereupon Registrar of Trade Marks (Respondent No.2) gave a notice dated 5-8-1985 to the appellant along with copy of the notice of the opposition filed by Respondent No.l, calling upon him to file his countcrstatemcnt within one month as required under Rule 32 of the Trade Marks Rules, 1963. The appellant sought extension of time for filing his counter statement which was granted by Respondent No.2, under Rule 76 in the following manner:- "Ist up to 9-10-1985 for. Filing counter-statement and documents.
2. 2nd " 9-1 1-1985 "
3. 3rd " 9-12-1985 "
4. 4th " 9-1-1986 "
5. 5th " 9-2-1986 "
6. In spite of these extensions granted to the appellant he did not file his counter statement and applied for extension of time up to 11-3-1986 when the appellant filed his counter-statement along with documents. Respondent No.l had not objected to the extensions granted upto 9-2-198( but when extension upto 11-3-1981; was granted it objected. On the ground that it was in violation of Rule 76 and the counter-statement filed by the appellant on 11-9-1986 was barred by two days under Rule 32 read with Rule 76. According to Respondent No.l the extension could have been granted under the Rules upto 9-3-1986. Respondent No.2 after hearing the objections allowed the last extension upto 11-3-1986 and accepted thi, appellant's counter-statement holding that it was filed within time because the month. Of February consisted of 28 days and as such one month time for the last extension expired on 11-3-1986. Respondent No.l filed two appeals under section 76 of the- Trade Marks Act, hereinafter referred to as the Act, in the High Court of Sindh in respect of aforestated applications which were allowed by the impugned judgment. Leave was granted inter alia to consider the question whether extension impuged before the High JA Court was within the limit of six months and whether necessary Rules were allowed in taking necessary procedural steps involved in it.
7. 2.Mr. Khalil Qizilbash, the learned counsel for the appellant, contended that each extension should be taken separately and independently and each of them should comprise of minimum 30 days and, thus, on that basis the counter-statement was within time. Where any party applies for registration of trade mark and opposition has been filed, the applicant is required to file counter- statement with all necessary documents to contest the opposition. In this regard section 15 of the Act provides that any person objecting to the registration may serve a notice in the prescribed manner opposing the registration. Under subsection (3) the Registrar shall serve in the prescribed 8 manner a copy of notice on the applicant who has applied for Trade Mark and within the prescribed time the 'applicant shall file with the Registrar his counter-statement stating the grounds on which he seeks registration. It further provides that in case it is not filed the applicant shall be deemed to have abandoned the application. Subsequent subsections relate to procedure to be followed when counter-statement has been filed and are not relevant for the present case.
8. The prescribed time ac contemplated by subsection 1'31 is provided by Rule 32 and requires the counter-statement to be filed fully supported by documents within one month from the receipt by the applicant of the duplicate notice of opposition. Rule 76 permits the Registrar to extend the time which reads as follows:- "76. Extension of Time.--If in any particular case the Registrar is satisfied that the circumstances arc 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 proceedings 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 extensions shall not exceed six months against each statutory period prescribed. An application for extension of time shall be made in Form TM-55, on payment of the prescribed fee:'
9. This Rule permits extension of 6 months in the aggregate but an extension shall not exceed a period of one month at a time. Registrar can thus grant, extensions from time to time for a total period of six months but not more than one month at a time. Mr. Qizilbash's first argument centres round the interpretation of the words 'one month'. There is no dispute about the first five extensions granted by the Registrar which were not objected by Respondent No.l. Its objection to the last extension upto 11-3-1986 is mainly on the ground that it exceeds the period of one month. The 5th extension was granted up to 9-2-19.86 and the last extension was granted upto 11-3-1986.
10. According to Mr. Qizilbash as the words `one month' have been used in the Rule the appellant was entitled to 30 days to complete the month and, therefore, as the month of February being of 28 days the last day of the month will fall on 1-3-1986 instead of 9-3-198). The month has not been defined in the Act or the Rules. Section 3(33) of the General Clauses Act defines it as follows:- " `Month': Month shall mean a month reckoned according to the British Calendar."
11. It is, therefore, to be considered how one month has to be reckoned in computing the period of limitation as provided by the Rule 76. According to Stroud's Judicial Dictionary:- "A Calendar Month is a legal and technical term; and in computing time by calendar months, the time must be reckoned by looking at the calendar and not by counting days (per Brett, L.J. Migotti v. Colville 4 CPD 233). Therefore, e.g. One calendar month's imprisonment is to lx; calculated from the day of imprisonment to the day numerically corresponding to that day in the following month less one (ibid). When there is no such corresponding day in the last month of the imprisonment, the prisoner's term will be up to the last day of such last month. Thus, a prisoner `sentenced to a calendar month's imprisonment will never be imprisoned for a greater number of days than there are in the month in which he was sentenced' (per Cotton LT Migotti v. Colville sup). So as regards the requirement of a calendar month's notice of action in considering what is the length of a calendar month, it is sufficient, when the months arc broken whatever be the length of either to go from one day in one month to the corresponding day in the other (per Cockburn, CJ, Freeman v.
12. Read, 32 LTM.C. 226)."
13. In Halsbury's Laws of England, Volume 37, 3rd Edition, para 143, page 83, the rule of computing a period of one calendar month where it is not reckoned from the 1st day of the month has been stated as follows:- "143. Calendar month running from arbitrary date.--When the period prescribed is a calendar month running from any arbitrary date the period expires with the day in the succeeding month immediately preceding the day corresponding to the date upon which the period starts; save that, if the period starts at the end of a calendar month which contains more days than the next succeeding month, the period expires at the end of the latter month (k).
14. If a period of one calendar month includes the last day of February there must be twenty-nine or twenty-eight days, according as the year is or is not leap year (I)."
15. Mr. Fateh Vellani, the learned ASC for Respondent No.l has also referred to M/s. Union Cold Storage Company Limited v. Mohammad Akram and others 1979 PLC 185, which is a judgment of the High Court of Sindh in which Ajmal Mian, J. (as he then was), while, referring to Halsbury's aforestated passage observed as follows:- "In order to determine as to how the period of two months is to be computed for the purpose of subsection (6) of section 25-A, it will be necessary to refer to the definition of the word `month' given in section 3(33) of the General Clauses Act, 1897, as the IRO being a Central Act. According to the definition given in the General Clauses Act `month' shall mean a month reckoned according to the British Calendar. The calendar month is a legal and technical term. The meaning of the phrase is that in computing time by calendar months the time is to -be reckoned by looking at the calendar and not by counting the days."
16. In Sher Mohammad and 6 others v. Gulfraz 1989 CLC 1344 same observations have been made by Mohammad Azam Khan, J and reliance has been placed on the following passage from Iyer's Law Lexicon:- 'The term `month' whether employed in modern statutes or contracts, and not appearing to have been used in a different sense, denotes a period terminating with the day of the succeeding month numerically corresponding to the day of its beginning, less one. If there be no corresponding day of the succeeding month, it terminates with the last day thereof."
17. According to Black's Law Distionary:- "Word `month' unless otherwise defined, means calendar month, or time from any day of any of the months as adjudged in the calendar to corresponding day, if any, if not any, to last day of next month."
18. We have also noted a judgment of the then High Court of West Pakistan, Karachi Bench, Farid Sons Ltd. v. Federation of Pakistan PLD 1959 Kar 568. In this case the plaintiff had served a notice under section 80, C.P.C. (before it was amended) in the month of January, 1954, the question arose how the period of two months be computed. It was observed that unequal days of the months will not raise any difficulty and if notice was delivered on 24th of January first month will expire on 23rd February and the second month will expire on 23rd March. This conclusion without applying section 9 of, the General Clauses Act may be correct but if section 9 is applied the first month will expire on 24th February and the second month will expire on 24th March.
3. From the aforestatcd references it seems well settled that when word `month' is used in any Statute or Rules it is to be taken as calendar month. The period of one month running from an arbitrary date would expire with the day in the succeeding month immediately preceding the day corresponding the date upon which the period starts. However, where section 9 of the General Clauses Act is pressed in service in computing the period of one month the date on which order was passed will be excluded and it will be reckoned from the date E succeeding the date of order.
19. In cases where the succeeding month does not contain same number of days as in the preceding month then the period of one month expires on the last day of the succeeding month. Any month commencing from 30th or 31st of January will end with the last day of February whether 30 days have been completed or not.. Mr. Qizilbash has referred to Dave Desikar v. Murvigesa Mudali, ILR 29 Madras 75, but it is not relevant because it was on the interpretation of sections 40 and 51 of the Madras Rent Recovery Act that the word `month' was held to be equivalent to 3Q days as provided by section 51. The learned counsel has also referred to Govindprasad and another v. Pawankumar, AIR 1952 Orissa 278, but it is also not relevant as in computing a period of one month section 9 of the General Clauses Act was applied and the day on which order was passed was excluded. This case also does not assist the appellants.
20. 4.In view of the above discussions and keeping in view section 9 of the ,General Clauses Act as the 5th extension was granted on 9-2-1986 one month from that day would complete on 9-3-1986.
21. Therefore, the period. Of six months, would complete on 9-3-1986 and not on 11-3-1986. .
22. 5.Faced with this situation Mr.Qazilbash contended that even if the extension granted was beyond the period prescribed by the Rules the said order is not appealable as it is a procedural matter. The learned counsel has referred to Ratan & Company v. T. Narainan, AIR 1977 Delhi 93. It was a case under the Trade and Merchandise Marks Act, 1958. In this case the appellant had applied for registration of the trade mark. The notice of opposition was filed by the respondent beyond the period of three months as prescribed by section 21 of the said Act. On an application made by the.
23. Respondent the Assistant Registrar granted extension of time of one month and as notice of opposition had been filed within the extended time it was taken on record. The appellant sought review of the order but it was dismissed. He, therefore, filed ` two appeals, one against rejection of the Review Application and the other against the extension of time. A preliminary objection raised on behalf of the respondent that the appeal was not maintainable as under section 101, subsection
(2) appeal did not lie from every order of the Registrar was upheld. It was further held that by providing an appeal from any order or decision of the Registrar under this Act, the orders which are merely procedural and do not affect the rights and liabilities of the parties are not appealable.
24. Under section 101 of the Indian Act of 1958 relating to extension of .Time which is substantially different from Rule 76, the Registrar for sufficient cause may extend the time (not being expressly provided by the Act) subject to such condition as he may deem fit. Subsection (2) provides that the Registrar may decide without hearing the parties and no appeal shall tic from any order passed by him under this section. In view of this provision no appeal was competent. It may be noted that Rule 76 prescribes for the maximum outer limit beyond which no extension can be granted. Mr. Qizilbash has also referred to The Central Bank of India v. Gokal Chand AIR 1965 SC 507, and Shankar Lal Agarwal and others v. Shankarlal Paddar and others AIR 1967 SC 799. There can be no cavil with the preposition that procedural and interlocutory orders which do not affect the rights and liabilities of the parties cannot be made subject-matter of an appeal. The Courts have always discouraged appeal against such procedural and interlocutory orders which cause delay in disposal of the main proceedings. In this regard reference can be made to Ibrahim v. Mohammad Hussain PLD 1975 SC 457, which was a case under the West Pakistan Urban Rent Restriction Ordinance, 1959, in which reliance was placed on M/s. Kandawala and Company, Lahore v Syed Faizuddin and others, 1969 SCMR 721. While referring to section 15 of the Ordinance which provided appeal against an order passed under section 4, 10, 12 or 13 of the Ordinance it was observed:- "It would be idle to contend that as respects cases falling under any of the above four sections, subsection (1) of section 15 postulates appeal in relation to a matter which is not germane to the substance of the dispute, but which is merely incidental or collateral to the dispute and which has been disposed of by an interlocutory order. For instance, in any such case objection may be taken against the territorial jurisdiction of the Rent Controller and a finding as to the existence of such jurisdiction, cannot on any discoverable principle be made a subject-matter of appeal apart from appeal from the whole gamut of the dispute. On a parity of reasoning the same will be true of the interlocutory order in the instance case, which was made to dispose of a collateral matter in, the case."
25. It is true that every order passed by the Registrar cannot be challenged in appeal under section 76 of the Act. All procedural ancillary or collateral orders which do not ,affect rights and liabilities of the parties nor decide the main and real controversies cannot be challenged in appeal. But if an order is passed beyond the jurisdiction conferred on the Registrar which touches upon the rights and liabilities of any party or robs the other party of the advantage the Statute has conferred as a consequence of default, the appeal will be competent. Now, it is to be considered whether the order passed by the Registrar was a procedural order and `did it affect any right or liability in the matter. The Registrar is empowered under Rule 76 to' extend the time. It confers a restrictive power on the Registrar not to extend the time beyond an aggregate period of six months and also that an extension granted under this Rule shall not exceed a period of more than one month at a time.
26. Therefore, there are two limitations placed on the powers of the Registrar (i) that at a time the Registrar cannot extend time beyond a period of one month and (ii) the total aggregate cannot extend beyond six months. The power of extension is thus restricted to that, extent and cannot be exercised beyond it. Mr. Vellani has pointed out that the intention of the legislature was to restrict the power of the Registrar to extend' the time. In this regard the learned ASC submitted that the present rule as it exists was enforced on 1-7-1977 by amending the old rule and the limitations as pointed out above have been placed upon the Registrar's power to extend the time. Therefore, the Registrar has a limited power of extension within the four corners of Rule 76.
27. 6.Section 15 provides procedure for filing opposition to registration of a trade mark and requires the applicant to fife counter-statement to the opposition within one month as prescribed by Rule 32 which can be extended by the Registrar under Rule 76. It is only after riling the counter-statement that theRegistrar shall hear the parties and decide the matter. Subsection (3) of section 15 provides that the applicant shall file his counter-statement within the prescribed time and if it is not filed, the applicant shall be deemed to have abandoned his application for registration. Therefore, consequences for default in filing counter-statement within time have been specified and the application for registration stands abandoned. There is no dispute that under law a party is entitled to file fresh application which has its own implications and consequences. If a registration is granted on such application, it shall be deemed to be from the date. Of application. Thus, the party opposing registration may, if available, tae advantage of the time passed till the riling of the fresh application. However, mere extension of time for filing counter statement in terms of Rule 76 can hardly be challenged in appeal. It does not decide any right or liability. It is merely procedural in nature, incidental and collateral to the real controversy in the case which remains untouched. It will thus be seen that the order for extension of time upto an aggregate of six months cannot be subject-matter of an appeal but extension granted beyond the period of six months is not only illegal but attracts section 15(3) whereby the application for registration stands abandoned. In this case the Registrar had granted time beyond the period permissible under law. The appellant filed application for extension of time on 11-3-1980 after the expiry of the period of six months and had failed to file counter-statement upto 9-3-1986. The Registrar had no authority to grant extension beyond six months (9-4-1986) and, therefore, application for registration shall be deemed to be abandoned conferring a valuable right on the other side.
28. 7.Both the appeals are dismissed.