1. ' This Miscellaneous Appeal is directed against a decision dated 12-10-1989 passed by the second respondent whereby dismissing opposition filed by the appellants and ordering the advertised mark to proceed to registration after the expiry of the appeal period.
2. ' The facts leading to the filing of the above appeal are that the appellants are renowned manufacturers and merchants of Chaff Cutters, Belnas, gear machines, ploughs, wheat-threshers and parts thereof for a very long time in Pakistan. It is the case of the appellants that in course of trade in order to distinguish their said products from other manufacturers and merchants in the same line, the appellants themselves or through their predecessors and sister concern Messrs Seth Muhammad Tufail and Brothers of Factory area, Faisalabad in or about in the year 1947, adopted the trade mark word "Seth Muhammad Tufail" and 'Seth' in English and Urdu and since 1947 have used the said mark continuously and extensively in the market in Pakistan. The said firm of Seth Muhammad Tufail and Brothers at the time of its dissolution on 30-4-1963 consisted of the partners, (1) Seth Muhammad Tufail, (2) Seth Mukhtar Ahmed, (3) Seth Muhammad Ayub and (4)
3. Haji Abdul Rehman. On 1-7-1963 a new partnership between Seth Mukhtar Ahmed and Mst. Mumtaz Bibi under the name and style of Nahan Foundry was formed which acquired the entire goodwill and assets of the said dissolved firm in respect of said agricultural implements included in class 7 and since then the said marks are in exclusive and continuous use of the appellants.
4. ' It is the further case of the appellants that in order to safeguard their proprietary rights and interest in their Trade Marks "Seth Muhammad Tufail" and "Seth", the appellants obtained registration of said marks in their favour under No, 37397 and 68828 in respect of Chaff Cutters (Tokas), Belnas, ploughs, gear machines, wheat-threshers and other agricultural implements included in class 7 manufactured and sold by them in Pakistan.
5. ' It is the further case of the appellants that seeing the popularity and ready market of the appellant's said agricultural implements many dishonest firms in the past have tried to obtain registration but due to timely legal actions taken against them or opposition filed to such illegal registration of applications by the appellants, such dishonest efforts were frustrated.
6. ' It 'appears that the first respondent adopted and applied for registration of mark word "Khud Kafil" in Urdu script read as "Muhammad Tufail" on a label under Application No, 67016 in class 7 for Chaff Cutters etc claiming user therein as "Proposed to be used" under name "Seth Muhammad Rafiq Zarati Foundry". The mark was advertised in the Trade Mark Journal. The appellants filed notice of opposition. The notice of opposition was accompanied with main affidavit giving year-wise sale.
7. The first respondent filed counter-statement.
8. ' The second respondent dismissed the opposition. The appellants have challenged the impugned decision in the present appeal.
9. ' I have heard Mr. Khalil Kizilbash, learned counsel appearing for the appellants and Mr. Sultan Shaikh, learned counsel appearing for the first respondent. The second respondent though served remained absent. I have pursued the impugned order and the R & P of the case.
10. ' The contention of Mr. Khalil Kizilbash is that the appellants have not received a fair and reasonable consideration at the hands of the second respondent. The second respondent has not given any reasons.
11. ' I will first consider the second point. In the first place, it must be noted that the function of the Registration of Trade Mark is judicial. He has to record reasons for dismissing or allowing the application or dismissing or allowing the opposition.
12. ' In Mollah Ejahar Ali v. Government of East Pakistan and others (PLD 1970 SC 173) it was held that a judicial order must be a speaking order manifesting by itself that the Court or (in the instant case the Registrar of Trade Marks) has applied its or his mind to the resolution of the issues involved for their proper adjudication. It was further observed that the ultimate result may be reached by a laborious effort, but if the final order does not bear an imprint of that effort and on the contrary discloses arbitrariness of thought and action, the feeling with its painful results, that justice has neither been done nor seems to have been done is inescapable. When the order of a Registrar of Trade Marks contains no reasons the appellate Court is deprived of the benefit of the views of the Registrar and is unable to appreciate the processes by which the decision has been reached.
13. ' For the reasons stated above, I have no alternative but to allow this appeal, set aside the order of the second respondent and send the case back to the Registrar of Trade Marks for disposal in accordance with law on merits and after affording opportunity to the parties. There will, therefore, be no order as to costs.