BROOKE BOND (CEYLON) LTD

009-SLLR-SLLR-1990-V-1-BROOKE-BOND-CEYLON-LTD.pdf


Brooke Bond (Ceylon) Ltd.v. Siassen Exports Ltd.
61
CA
BROOKE BOND (CEYLON) LTD.
v.STASSEN EXPORTS LTD. AND ANOTHER
COURT OF APPEAL.
WIJETUNGA, J. AND WIJEYARATNE, J.
CA/LA 124/89FEBRUARY 19, 1990
Appeal-Interlocutory appeals under s. 182 (3) of Code of Intellectual Property Act, No. 52of 1979 —Civil Appellate Rules 1938 — Leave to appeal under s. 756 CPC.
Interlocutory appeals are appeals from interlocutory orders. In law an interlocutory orderis one which is made or given during the progress of an action, but which does not therebydispose of the rights of parties. It is incidental to the principal object of the action, namelythe judgment. Viewed in this light the definition of order in section 754 (5) of the CivilProcedure Code of 1977 applies to interlocutory orders.
When section 182 (3) of the Code of Intellectual Property Act, No. 52 of 1979, provided thatappeals shall be governed by the "rules which govern interlocutory appeals from theDistrict Courts", they refer to the procedure laid down in sections 754 (2) and 756 (2), (3),(4), (5). (6) and (7) of the Civil Procedure Code of 1977 and any rules relative theretoframed by the Chief Justice and other Judges of the Supreme Court under Article 136 ofthe Constitution.
The Civil Appellate Rules of 1938 published in the Government Gazette of 24.3.1939 areno longer in force.
PRELIMINARY OBJECTIONS to application lor leave to appeal from order of the DistrictJudge of Colombo.
Dr. H. W. Jayewardene, O. C. with K. N. Choksy, P. C., Lakshman Kadirgamar, HarshaAmerasekera and Harsha Cabraal for the Appellant-Petitioner.
H. L. de Silva, P. C. with G. Dayasiri lor 1st respondent.
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11990j I Sri L.R.
March 15, 1990.
WIJEYARATNE, J.
This is an appeal under section 182 (3) of the Code of IntellectualProperty Act, No. 52 of 1979, from an order of the learned AdditionalDistrict Judge of Colombo dated 30.11.1989 dismissing an appeal froman order made by the 2nd respondent (Registrar of Trade Marks) underthe said Code.
The Appellant (Brooke Bond Ceylon Ltd.) is the registered proprietorof the word mark “Spring Leaf” (No. 2878) and also mark No. 5226 “SpringLeaf", the word and device which have been registered on 11.5.1923 and13.12.1930 respectively.
The 1st Respondent (Stassen Exports Ltd.) applied to the 2ndRespondent (Registrar of Trade Marks) under section 102 of the Code ofIntellectual Property Act, No. 52 of 1979, for registration ol the mark“Spring Band" in the same class of goods as those of the Appellant set outabove.
The 2nd Respondent accepted the said mark for registration and pub-lished the same in the Government Gazette No. 246 of 20.5.1983
(under No. 40849).
Thereupon the Appellant objected to the registration of the said markNo. 40849 in terms of section 107 (10) o' the said Act.
The 1st Respondent under section 107 (12) of the Act filed its obser-vations dated 5.3.1989.
Thereafter the matter was taken up for inquiry and by his order dated25.1.1988 the 2nd Respondent held that the mark of the 1st Respondentwas entitled to registration under the said Act
Being aggrieved the Appellant filed an appeal therefrom in terms ofsection 182 (1) of the Act to the District Court of Colombo.
Thereupon the 1st and 2nd Respondents filed their objections in theDistrict Court of Colombo.
After the filing of written submissions by the Appellant and the 1stRespondent the learned additional District Judge of Colombo by his orderdated 30.11.1989 dismissed the appeal of the Appellant.
Brooke Bond (Ceylon) Ltd.v. Stassen Exports Ltd. (Wijeyaratne, J.)
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Being dissatisfied with this order the Appellant on 14.12.1989 has filedthis application for leave to appeal against the said order under section756 of the Civil Procedure Code, read with section 182 (3) of the said Act.
The 1st Respondent has filed its objections dated 12.2.1990 to thisapplication for leave to appeal.
When this application for leave to appeal came up for hearing learnedcounsel for the 1st Respondent Mr H. L. de Silva, P. C., raised thepreliminary objection that the Appellant should have followed the proce-dure laid down in section 754 (1) and not the procedure laid down insection 754 (2) of Ihe Civil Procedure Code (as has been done in thiscase). He argued that the order of the learned Additional District Judgedated 30.11.1989 amounted to a judgment within the meaning of section754 (5) of the Civil Procedure Code, as it has the effect of a final judgmentof a Civil Court. He submitted that the order of the learned AdditionalDistrict Judge dated 30.11.1989 has the effect of finally disposing of therights of parties.
He further submitted that if the legislature intended an Appellant undersection 183 (2) of the Code of Intellectual Property Act to follow the morecumbersome procedure laid down in section 754 (2) and section 756 (2)io (6) of the Civil Procedure Code by getting leave to appeal, it would havemade specific provision for same as laid down in section 13 (3) of theJudicature Act, No. 2 of 1978, in appeals from the Admiralty jurisdictionof the High Court.
He argued that section 182 (3) of the Code of Intellectual Property Actmerely repeated what was stated in section 50 of the repealed TradeMarks Ordinance, namely that appeals are to be governed by the samerules which govern interlocutory appeals from District Courts.
Mr. de Silva also submitted that the Civil Appellate Rules of 1938 madeunder section 53 of the Courts Ordinance and published in the Govern-ment Gazette of 24.3.1939 were yet in force and the procedure laid downtherein should have been followed in this case.
Mr. de Silva argued that the Civil Appellate Rules of 1938 were yet inforce because, although the Administration of Justice Law, No. 44 of 1973by its section 3 (1) (a) repealed the Courts Ordinance yet by its section
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Sri Lanka Law Reports
11990) 1 Sri LR.
3 (2) provided that unless and until rules are made under the said Law,all rules in force immediately before the appointed date relating to theexercise of jurisdiction of Courts established under the several enact-ments repealed by the said Law shall mutatis mutandis apply to theexercise of jurisdiction by the court vested with such jurisdiction under thisLaw.
It should be remembered that what is conserved are rules relating tothe exercise of jurisdiction by a Court which is vested with jurisdiction. Weare concerned here with rules relating to procedure in appeals and notrules relating directly to the exercise of jurisdiction though it may beargued that rules relating to appellate procedure also relate to jurisdictionof Courts.
However that may be, express provision has been made in the veryAdministration of Justice Law, No. 44 of 1973 itself, for both civil andcriminal appeals, and also rules have been made under the said Lawrelating to appellate procedure which are outlined below.
While a whole new chapter, namely Chapter 4 of the Administration ofJustice Law, No. 44 of 1973, consisting of sections 315 to 356 (inclusive)have comprehensively dealt with procedure relating to both criminal andcivil appeals, special provision was made for interlocutory appeals in civilactions by section 317 (2) of the said Law after first obtaining the leaveof the Supreme Court (which was the court which had appellate jurisdic-tion).
The procedure to obtain leave is laid down in section 326 (1) of the Law,which provides for an application supported by an affidavit. The words"judgment" or “order" are defined in section 356 (and these definitions arenot dissimilar to the corresponding definitions in section 754 (5) of thepresent Civil Procedure Code of 1977).
Thus it is seen that specific Laws relating to interlocutory appeals werebrought into force for the first lime.
In addition, certain rules called the Supreme Court Appeals ProcedureRules 1974 have been framed by the Chief Justice and other Judges ofthe Supreme Court (with the concurrence of the Minister of Justice) undersection 15 of the Administration of Justice Law, No. 44 of 1973. Theserules were published in Government Gazette (Extraordinary) dated
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Brooke Bond (Ceylon) Ltd.v. Stassen Exports Ltd. (Wijeyaratne, J.)
65
They relate to lodging and hearing of appeals.
There are also certain other rules that have been made by the ChiefJustice and other Judges of the Supreme Court (with the concurrence ofthe Minister of Justice) under the said section 15. They contain rulesrelating to the lollowing matters
Assignment of Attorney-at-Law in appeals from criminal cases ormatters from High Courts.
Admission, enrolment, suspension and removal of Attorneys-at-Law.
Attire of Judges and Attomeys-at-Law (women).
Writs and Examination of Records.
All these rules were published in Government Gazette No. 115/4 of
12.6.1974.
Thus it is seen that in 1974 not only Laws but also rules relating toprocedure in appeals had become a part of the law.
Hence the saving clause of section 3 (2) of the Administraton of JusticeLaw, No. 44 of 1973, lost effect and the Civil Appellate Rules 1938became obsolete.
In short, the Civil Appellate Rules 1938 ceased to operate after theenactment of the Administration of Justice Law, No. 44 of 1973 (whichlaid down express laws in its sections 315-356 for procedure in appealsand even rules were made thereafter by gazette notifications as set out
above.
After that the Civil Courts Procedure (Special Provisions) Law, No. 19of 1977, which came into eflect on 15.12.1977 provided by section 3 thatthe provisions of Chapter 4 of the Administration of Justice Law shallcease to regulate the right of, and procedure in, appeals. Section 4 (1) ofthe Civil Courts Procedure (Special Provisions) Law, No. 19 of 1977,provided that the Civil Procedure Code shall, for all purposes, be deemedto be in operation as if the same had not been repealed and shall continueto be the Law governing the procedure and practice in all Civil Courts.
At the same time the Civil Procedure Code (Amendment) Law, No. 20of 1977, was passed amending the re-introduced Civil Procedure Code.
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ft990] l Sri LR.
This amendment included amendments with regard to the procedure inrespect of Interlocutory Appeals which are laid down in sections 754 (2)and 756 (2), (3), (4), (5). (6) and (7).
A new Constitution was enacted in 1978.
Acting under Article 136 of the Constitution, the Chiel Justice and otherJudges of the Supreme Court have framed rules which may be cited asthe Supreme Court Rules, 1978. These were published in the Govern-ment Gazette No. 9/10 of 8.11.1978. These rules govern the followingtopics :-
Special Leave to Appeal.
Leave to Appeal.
Appeal procedure.
Stay of proceedings.
Writs and examination of records.
Suspension of sittings of court.
Constitutional and fundamental rights jurisdiction.
Admission, enrolment, suspension and removal of Attorneys-at-Law.
Thus it is seen that in addition to the above quoted sections in the CivilProcedure Code, which govern the procedure relating to interlocutoryappeals, there are also rules relating to appeals framed by the ChiefJustice and other Judges of the Supreme Court, which are now in forceand often cited in appeals.
The words “interlocutory appeals” are not defined in the Civil Proce-dure Code. Interlocutory appeals are appeals from interlocutory orders.In law. An interlocutory order is one which is made or given during theprogress of an action, but which does not thereby dispose of the rights ofparties. It is incidental to the principal object of the action, namely thejudgment. Viewed in this light, the definition of “order” in section 754 (5)refers to interlocutory orders.
The present Civil Procedure Code was enacted in 1977 and the Codeof Intellectual Property Act in 1979. Therefore when section 182 (3) of theCode of Intellectual Property Act, No. 52 of 1979, provided that appealsshall be governed by the “rules which govern interlocutory appeals from
The People's Bank v. New Lanka Merchants Ltd.
67
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the District Court”, obviously they refer to the procedure laid down insections 754 (2) and 756 (2), (3), (4), (5), (6) and (7) and any rules relativethereto framed by the Chief Justice and other Judges of the SupremeCourt under Article 136 of the Constitution.
Hence the Appellant-Petitioner has followed the correct procedure inthis appeal.
I overrule the preliminary objections with costs fixed at Rs. 2,100.
WIJETUNGA, J —I agree.
Preliminary objections overruled.