' AJMAL MIAN, J.---This is an appeal with the leave of this Court against the judgment dated 5-8- 1991 passed by a learned Single Judge of the High Court of Sindh in Miscellaneous Appeal No, 45 of 1980 filed by the appellants against the decision of the Deputy Registrar, Trade Marks (i,e.
Respondent No,2) dated 15-10-1979, whereby he maintained his earlier order passed on 10-6-1979, dismissing the opposition filed by appellant No,2 in respect of mark 'ESSO' in oval of which registration was sought by respondent No,1 on the basis of its alleged user since 1-7-1964, dismissing the same on the ground of limitation and maintaining the above order of respondent No,2.
2. It appears that during the pendency of the above opposition, rules 76 and 84 of the Trade Marks Rules, 1963, hereinafter referred to as the Rules, were amended in 1977. The unamended and amended rules read as follows:-- Unamended rules 76 and 84: "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 TM-55, on payment of the prescribed fee.
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 against, shall be excluded."
Amended rules 76 and 84: "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 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 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 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.
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."
3. The High Court held that the amended rule was, applicable for the purpose of computing the period of limitation for filing of an appeal under section 76 of the Trade Marks Act, 1940, hereinafter referred to as the Act, for the reason that limitation being a procedural matter, any amendment in the rules in respect thereof will be applicable to an appeal arising out of a proceeding initiated prior to the amendment.
4. Leave to appeal was granted to consider the following contentions:-- "(i) That the rule that an amendment in the law relating to limitation for filing of a legal proceeding being procedural matter, is to be given retrospective effect, was not applicable to the present case as the amended rile 84 does not only substitute the period of limitation from four months to two months, but it also omitted the power of the Registrar to allow further time for filing of such an appeal and, therefore, the amendment could not have been enforced against the petitioner retrospectively. That the High Court erred in holding that rule 84 cannot be read with rule 76."
5. In support of the above appeal, Mr. Fatehali W. Vellani, learned ASC appearing for the appellants, has vehemently contended that since the appellants had filed opposition to respondent No,1's application for the registration of trade mark on 1-1-1969, the amendment made in above rules 76 and 84 of the Rules with effect from 1-7-1977 could not have been applied retrospectively to an appeal arising from the above opposition.
6. The above contention seems to be devoid of any force. It may be pertinent to mention few dates in order to appreciate the above contention. It appears that the Registrar passed his impugned order on 15-10-1979 which was conveyed to the appellants' counsel on 10-11-1979. The appellants applied for the certified copy on 17-11-1979, which they received on 4-12-1979. The appeal was filed in the High Court on 23-2-1980. A perusal of the unamended rule 84 indicates that therein four months period from the date of decision was provided for filing an appeal in the High Court. It was also provided that the Registrar may allow further time and that the time spent in obtaining a copy was also to be excluded. Whereas, in the amended rule 84, the period of four months has been reduced to two months and the above power of the Registrar to extend the above period and the right of a party to exclude the period spent in obtaining copy, have been omitted. In other words, the effect of the' above amendment was that an aggrieved party was required to file an appeal in the High Court under section 76 of the Act within two months' period. The Registrar passed the impugned order on 15-10-1979 which was after two years and 3/1-2 months from the date of the amendment. Since the right to file appeal accrued to the appellants on 15-10-1979, the amended rule 84 was applicable. In our view, no question of retrospective application of the above rule is involved in the present case, as the right to file appeal accrued to the appellants after the above amendment as pointed out hereinabove. We may observe that the right to file an appeal is a substantive right. The period within which a party is to file an appeal is procedural matter in which no party can claim any vested right, particularly when the amendment was made in the above rule 84 of the Rules two years and 3/1-2 months prior to the passing of the impugned order by the Registrar.
7. It was next urged by Mr. Fatehali W. Vellani that the factum that the power of the Registrar to extend the period of limitation provided unamended rule 84 was omitted on 1-7-1977, was of no consequence as the Registrar retained the above power by virtue of rule 76. He has further submitted that the appellants applied for extension of time to the Registrar on 10-12-1979 on Form TM-55, which request was granted by the Registrar on 13-12-1979 and the time was extended up to 23-2-1980.
8. In this regard, it may be pertinent to point out that a perusal of the prescribed Form TM-55 at page 134 of the paper book indicates that no extension of time for filing an appeal could have been sought on the basis of the above prescribed Form TM-55 as the appeal has not been included. This has been rightly so held by Saleem Akhtar, J. And Abdul Qadeer Chaudhry, J while sitting as S.Bs. In the High Court of Sindh in the case of Muhammad Shafi and another v. Assistant Registrar of Trade Marks (PLD 1983 Karachi 463) and in the case of Magic Chef and another v. Alnoor Industries and another (1987 CLC 972) respectively. The appellants had added the word "appeal" in para. 4 by typing it. Another important feature which is noticeable from the above prescribed Form TM-55 is that the extension of time could be sought for one month at a time. This seems to be on account of amendment made in the rule 76 with effect from 1-7-1977 which provided that "An extension granted under this rule shall not exceed a period of more than one month at a time". It also provided that the total period of such extension shall not exceed six months against each statutory period prescribed. There were no such conditions prescribed in the unamended rule 76 as is evident by comparison of the unamended and the amended rule 76 quoted hereinabove. In the present case, the appellants were granted extension on 13-12-1979 up to 23-2-1980, which was nearly for a period of 2/1-2 months, which could not have been granted in view of the above amended rule 76. So even if we were to hold that rule 76 was applicable in spite of the fact that the power of the Registrar to extend the period of limitation for an appeal has been omitted with effect from 1-7-1977 from rule 84 of the Rules and that Form TM-55 does not refer to an appeal, the extension of 2/1-2 months granted by the Registrar in the instant case was in contravention of the above amended rule 76. The maximum extension permissible at a time was for a period of one month. In this view of the matter, even if we were to extend the period of limitation by one month, the appellants' appeal before the High Court was admittedly barred by time.
9. The upshot of the above discussion is that the above appeal fails and, therefore, the same is dismissed. However, there will be no order as to costs.