DAWOOD COTTON MILLS Ltd. Versus THE REGISTRAR OF TRADE MARKS, KARACHI

This appeal calls in question the order passed by Mr. Imtiaz Ahmed Khan learned Assistant Registrar Trade Marks, dated 4‑9‑1980.

2. Although in this case the appeal against the order was presented by the appellant on 4‑2‑1981 when apparently the period of limitation prescribed by Rule 84 of the Revised Trade Marks Rules, 1963, being two months, had already expired, however, an affidavit has been filed by the appellant's agent namely Muhammad Asif, stating that the. copy of the impugned order was delivered to him on 13‑12‑1980 and the time taken by the appellant for obtaining certified copy of the order, which appears to be 77 days, may be excluded. The factual position stated appears to be correct, and consequently, if the time taken for A obtaining certified copies of the impugned order by the appellant and the time taken by the respondent's office for communicating such order to the appellant is excluded then the appeal is in time. This settles the question of limitation.

3. The main question urged by Mr. Khalid Habibullah, learned counsel for the appellant is that the trade mark in question had first been referred to the learned Assistant Registrar for his opinion and after such opinion, which was against the appellant, had been given by him, the case was subsequently referred to him by the learned Registrar for disposal which has consequently resulted in passing of the impugned order. According to Mr. Khalid Habibullah although the appellant's representation had been heard by the learned Assistant Registrar, but since he had already expressed his opinion in the matter before hearing the appellant's representative, the case should not have been referred to him for decision. The factual position stated by the learned counsel is clear from the impugned order itself. The learned counsel has placed reliance on two authorities, first being reported as Kabir Ahmed v. S.D.O. and Controlling Authority (P L D 1968 Dacca 49). In this case the Chairman Union Council forwarded a complaint filed under section 341, PPC to the Controlling Authority with endorsement "the true copy is forwarded and recommended strongly for his kind information and necessary action." This complaint was ultimately received by the Chairman for disposal and the Chairman constituted a Conciliation Court with himself as its Chairman for trial of the case. The order passed by such Conciliation Court was held, under the circumstances, to be without lawful authority and of no legal effect. In another case reported as Muhammad Salim v. The Sub‑Martial Law Administrator, Sargodha (P L D 1979 Lah. 284) the petitioner was tried and convicted by a Summary Miutary Court at Faisalabad which was presided over by one Major Shahzad Hussain Khan. It later transpired that Major Shahzad Hussain Khan had accompanied the raiding party and was in fact instrumental in the raid and arrest of the petitioner in the case. The proceedings held by Major Shahzad Hussain Khan were struck down as being without lawful authority by the Lahore High Court.

4. It is a cardinal principle of justice that justice should not only be done I but it should appear to have been done. In the present case the learned Assistant P Registrar of Trade Marks had already expressed his opinion when the matter had been referred to him for the same by the Registrar prior to his receiving the case for decision. No doubt the decision was given after hearing the appellant's representative but it was clearly possible that the view expressed by him in the decision was tainted with bias. After the learned Assistant Registrar had already expressed his opinion in the matter, the hearing of the appellant thereafter only remained a formality. For the aforesaid reasons, I am clearly of the opinion that the decision suffer from an inherent defect and the sooner the same is set aside the better.

5. Consequently, this appeal is allowed, and the impugned decision given by the learned Assistant Registrar is set aside and the case, is remanded to the learned Registrar for either hearing the same himself or referring the same to another Assistant Registrar having jurisdiction in the matter. There will be no order as to costs.

H.B.T/D‑22/K Case remanded.