JUDGMENT HAMID ALI MIRZA, J.- This is an appeal under Section 76 of Trade Marks Act, 1940 directed against an order dated 31.7.1986 passed by Assistant Registrar, Trade Marks Karachi in Rectification Case No. 8/85 filed by M/s. Apex International Karachi v. M/s. Ghulam Abbas & Co., Karachi, whereby the said application for rectification was allowed.
2. On 10.4.1996 Mr. Khalil Kazilbash for appellant was heard on the preliminary point of jurisdiction so also Mr. Khawaja Mansoor, Advocate for respondent, who subsequently requested for time to submit their arguments on the next date.
3. I have heard the learned counsel for parties.
4. The main point which has been raised is that the Assistant Registrar was not competent to dispose of the case in view of Section 4 (2-B) of Trade Marks Act because Federal Government has not issued Notification in the official Gazette authorising the Registrar to delegate such functions of hearing such cases of the Registrar by the Assistant Registrar other than the Deputy Registrar.
Reliance has been placed upon Nestle Italiana SPA v. Bela Ghee Mills Ltd. And another (PLD 1992 Karachi 3) wherein at page 4 learned Judge in chambers has observed: "This Notification does not specify the function of deciding an application under Section 10 of the Trade Marks Act and as a matter of fact it does not specify any particular function or functions of the Registrar which could be delegated by him to officers other than Dy. Registrar. Hence it would appear that the Assistant Registrar was not lawfully delegated the authority to deal with and decide the application of registration filed by the respondent. The impugned order is, therefore, coram non judice. In this connection, reliance is placed on the unreported decision in the case of Registrar of Trade Marks v. Walter Rau Neussar 01 and Fett AG (supra) where in similar circumstances an order passed by the Examiner of Trade Marks was held to be unlawful and without jurisdiction observations from the above decision as under:
7. A reference may also be made to sub-section (2-A) of Section 4 whereunder the Federal Government is authorised to appoint one or more Deputy Registrars to discharge such functions of THE Registrar under the Act as the Registrar may " from time to time authorise them to discharge and any reference in the Act to the Registrar shall include a reference to any Deputy Registrar when so discharging any such functions. In subsection (2-A) entirely different language has been used by the Legislature as compared to the .Language used in sub-section (2-B). The intention of the Legislature appears to be clear. Under subsection (2-A) no Notification of the Federal Government is required and the Registrar is empowered to direct the Deputy Registrars to perform such functions of the Registrar under the Act as the Registrar may from time to time authorise them to discharge. As observed, it has also been provided in sub-section (2-A) that any reference in the Act to the Registrar shall include a reference to any Deputy Registrar when so discharging any such function.
On the other hand under sub-section (2-B) the Registrar can delegate Only such functions, to other officers which are specified by the Federal Government in the notification required to be issued in the official Gazette."
Reliance has also been placed on an unreported case Registrar of Trade Marks v. Walter Rau Messer 01 and Fett AG made in Civil Appeal No. 135-K of 1987 by the Supreme Court of Pakistan wherein, in paras 6 & 7 the learned Judge has observed as under:- "6. In our view the basic point escaped the attention of the High Court in this case as also in the cited judgment reported in PLD 1970 Karachi 537 and that is that under sub-section (2-B) of Section 4 of the Trade Marks Act, 1940, for authorising the Registrar, the Federal Government is required to specify the particular function or functions which the Federal Government wishes the Registrar may delegate. The notification 9th May, 1951 does not specify any particular function or functions of the Registrar and is a mere reproduction of subsection (2-B). The appellants have not produced any other notification of the Federal Government under which the Registrar has been authorised to delegate the functions of deciding applications for registration to the senior examiner.
7. A reference may also be made to sub-section (2-A) of Section 4 whereunder the Federal Government is authorised to appoint one or more Deputy Registrars to discharge such functions of the Registrar under the Act as the Registrar may from time to time authorise them to discharge and reference in the Act to the Registrar shall include a reference to any Deputy Registrar when the discharging any such functions. In subsection (2-A) entirely different language has been used by the legislature as compared to the language used in sub-section (2-B). The intention of the Legislature appears to be clear. Under sub-, section (2-A) to notification of the Federal Government is required and the Registrar is empowered to direct the Deputy Registrar to perform such functions of the Registrar under the Act as the Registrar may from time to time authorise them to discharge.
As observed, it has also been provided in sub-section (2-A) that any reference in the Act to the Registrar shall include a reference to any Deputy Registrar when so discharging any such function.
On the other hand, sub-section (2-B) the Registrar can delegate only such functions to other officers which are specified by the Federal Government in the notification required to be issued in the official Gazette."
Reliance has also been placed upon on unreported case viz. Civil Misc. Appeal No. 79/1984, decided on 19.2.1987 by this Court wherein learned Judge in chambers observed at page 4: "The Registrar of Trade Marks is the officer appointed by the Central Government for the purpose of the Act. He is also Tribunal under the Act besides being the Chief Executive and administrative head of the Trade Marks Registrar. His functions are thus partly judicial and partly administrative.
From the definition of Tribunal it would appear that the Registrar is a Tribunal only in relation to some proceedings pending before him. The Registrar can initiate a proceeding by the issue of a notice to a party under the Act or under the Rules. In such a case he would be a Tribunal in terms of Section 2(1) (n) of the Act. The Registrar is a Tribunal only when he performs some judicial functions under the Act.
The Trade Marks Registry is under the charge of the Registrar of Trade Marks. He is assisted by officers designated Deputy Registrars. These officers discharge the functions of the Registrar under his superintendence and direction. I am of the view that ordinarily Deputy Registrars under his superintendence and direction. I am of the view that ordinarily Deputy Registrar are authorised to hear and decide cases in respect of all proceedings under the Act before the Registrar. The examiners of Trade Marks examine applications for registration of trade marks to see whether they qualify for registration under the provisions of the Act and the Rules. They also assist the Registrar in procedural, administrative and supervisory functions connected with the various proceedings under the Act and the Rules.
Mr. Khawaja Mansoor Ahmed has contended that the facts of the above cited cases are quite different and distinguishable to the facts of instant case and further that the appellant had not taken that plea before the Assistant Registrar so also in the memo, of appeal therefore, he is estopped from raising the said plea in this appeal before this Court. He further contended that because appellants have submitted before the Court of Assistant Registrar and before this Court therefore, appellant cannot be permitted to agitate the said plea. I do not find any merit and substance in the said contention. Issuance of notification in terms of Section (2-B) of Trade Marks Act is a mandatory condition for the exercise of jurisdiction by the Assistant Registrar which is not fulfilled therefore these entire proceedings which followed became illegal and suffered from want of jurisdiction therefore, said plea could- be entertained in the appeal. Reference may be made to Mansab Ali v. Amir and three others (PLD 1971 S.C. 124 at 127 F.B.) where Supreme Court of Pakistan has observed: - "It is an elementary principle that if a mandatory condition for the exercise of jurisdiction by a Court, Tribunal or authority is not fulfilled, then the entire proceedings which follow become illegal and suffer from want of jurisdiction, any order passed in continuation of these proceedings in appeal or revision equally suffer from illegality and re without jurisdiction. The learned Advocate General fully supported this view and asked for dismissal of the appeal."
Reference may also be made to Rashid Ahmed u. The State (PLD 1972 SC 271 at 275 F.B.) wherein Supreme Court of Pakistan has observed: "So far as the first point is concerned that the objection should have been taken in the trial Court and any subsequent objection raised before the High Court or this Court could not be taken into consideration. Reliance was placed in the cases of Abdul Rashid u. The Crown (PLD 1951 FC 2); S.M.
K. Alvi v. The Crown (PLD 1953 FC 189); Gokulchand Dwarkadas Meraka v. The King (PLD 1948; PC 11); Nirode Chandra Biswa s and others v. The State (PLD 1958 Dacca 90); F.D. Costa v. The State (PLD 1959 Dacca 744X Abdul Khaliq v. The State (PLD 1963 Kar. 26), Qazi Mushtaq Ahmed v. Muhammad Ramzan and another (1970 P.Cr.L.J. 1181) and Abdul Khaliq v. The State (1970 P.Cr.L.J.). The trend of these decisions is that objection of this nature should be taken in the trial Court and an objection raised at the appellate stage is not fatal to the case. It will be noticed that in the present case no objection about the sanction was taken before the trial Court. An objection to this effect was taken before the High Court and before this Court. In my view, the latest view of this Court in the case of Mansab Ali v. Amir and others is a complete answer to these questions. It has been held by this Court in the above-mentioned case that if a mandatory condition for thb exercise of a jurisdiction before a Court, Tribunal or authority is not fulfilled, then the entire proceedings which follow become illegal and suffer from want of jurisdiction. Any order passed in continuation of these proceedings in appeal or revisional equally suffer from illegality and are without jurisdiction. It was further held in the case of Chittaranjam Cotton Mills Ltd. v. Staff Union that "question relating purely to the jurisdiction of the Court should be raised at any stage of the proceedings."
In this connection, the following observation is relevant: "Where the Court is not properly constituted at all the proceedings must be held to be coram non judice and, therefore, non-existent in the eye of law. There can also be no doubt that in such circumstances 'it could never be too late to admit and give effect to the plea that the order was a nullity', as was observed by the Privy Council in the case of Chief Kwame Asante Tredahone u.- Chief Kwame 9 D.L R. 686 (P.C.)."
In view of this clear observation of this Court, I am of the. View that the appellant was entitled to raise objection in the High Court and the High Court should have decided this point raised before it.
In the circumstances of the present case, this Court also is competent to go into this question."
Reference may be made to Chittaranjan Cotton Mills Ltd. v. Staff Union (PLD 1971 S.C. 197 at 204) wherein Supreme Court of Pakistan has observed: 'Where the Court is not properly constituted at all the proceedings must be held to be coram non judice and, therefore, non-existent in the eye of law. There can also be no doubt that in such circumstances "it could never be too late to admit and give effect to the plea that the order was a nullity", as was observed by the Privy Council in the case of Chief Kwame Asante, Tredahene u.
Chief Kwane Tawia (9 DLR 686(PC)).
In the instant case mandatory condition in respect of issuance of notification in the' official Gazette by the Federal Government in terms of Section 4(2-B) of Trade Marks Act Has not been issued therefore the Assistant Registrar Trade Marks could not have exercised the jurisdiction in respect of such judicial matters hence entire proceedings before him were illegal for want of jurisdiction and the said in such question in such circumstances, could be raised at any stage of proceedings and further there could not be estoppel against the statute. Accordingly, impugned order is set aside and the case is remanded to the Registrar Trade Marks Karachi to deal with the matter in accordance with the law and dispose of the same within four months. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.