Sri Lanka Law Reports
 3 Sri LR.
G.T.E. DIRECTORIES LANKA (PVT) LTD.
v.MUKTHAR MARIKKAR AND ANOTHER
SUPREME COURTAMERASINGHE, J.,
S.C. APPEAL NO. 151/97
A. NO. 507/92 (F)
C. COLOMBO NO. 3210/SPLJUNE 15, 1998
Appeal – Intellectual Property Act, No. 52 of 1979 – Time for appeal underS. 182 of the Act – Civil Procedure Code – Sections 5 and 6 – PrescriptionOrdinance – S. 10.
In terms of S. 182 of the Code of Intellectual Property Act, No. 52 of 1979, aperson aggrieved by a decision of the Registrar of Patents has a right of appealto the District Court. However, the Act does not provide a time limit within whichan appeal should be lodged or the appellate procedure.
G.T.E. Directories Lanka (Pvt) Ltd. v.
Mukthar Marikkar and Another (Dheeraratne, J.)
The appeal which was, quite rightly, lodged by the appellant by filing a plaintin the District Court constituted an action within the meaning of s. 6 of the CivilProcedure Code founded on a 'cause of action' as defined in s. 5 of the Code.In terms of s. 10 of the Prescription Ordinance, the appeal could be filed within3 years of the date of the decision of the Registrar.
Cases referred to:
Stassen Exports Limited v. Brooke Bond (Ceylon) Limited and Another (1990)2 Sri LR 63.
Western Bank Limited v. Schindler (1977) ch 1 at 18.
Lowe v. Fernando (1913) 16 NLR 398 and 404.
Jalaldeen v. The Colombo Municipal Council (1908) 4 Appeal CourtReports 131.
Dodwell v. John (1918) 20 NLR 206.
Fuard v. Weerasooriya (1954) 56 NLR 12.
APPEAL from the judgment of the Court of Appeal.
K. Kanag-lswaran P.C, with N. R. Sivendran for appellant.
S. Sivarasa P.C, with Barhee Ahamed and M. Mawjith for 1st respondent.
No appearance for 2nd respondent.
Cur. adv. vuit.
August 17, 1998.
This appeal raises an interesting question of law relating to the Codeof Intellectual Property Act. The 1st respondent filed applicationNo. 44027 for registration of a trade mark while General TelephoneDirectories Company (M) SDN BHD of Malaysia (The MalaysianCompany) filed its notice of opposition to the said application. Afterhearing the parties the 2nd respondent Registrar of Patents & TradeMarks, by his order dated 3rd January, 1990, refused the saidopposition and allowed the propounded mark to be registered. Theappellant, who- by then had become the assignee of the interestsof the Malaysian Company, being aggrieved by the order of the 2ndrespondent, by plaint dated 10th December, 1990, appealed againstthat order to the District Court, in terms of section 182 of the Codeof Intellectual Property Act, No. 52 of 1979. The 2nd respondent
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informed the District Court that he had no stake in the appeal andthat he would abide by whatever order made by court.
Section 182 of the 1979 Act does not provide a time limit withinwhich an appeal should be lodged; while conferring appellate juris-diction on the District Court, that section provides no specific appellateprocedure. The legislative predecessor of the present Act, the TradeMarks Ordinance No. 15 of 1952 (the 1964 Act was not brought intooperation), too did not provide for an appealable period but its sub-section 12 (6) stated that an appeal "shall be made in the prescribedmanner". Rule 98 made by the Minister under section 60 of thatOrdinance and published in the Gazette No. 7559 dated 10.12.1926(vide Subsidiary Legislation 1956 vol.11) provided for an appear froma decision of the Registrar to be made within one month thereof. Theserules published in the Gazette in 1926 were later rescinded by theorder of the Minister published in the Gazette 60/20 dated 31.10.1979.
At the hearing before the District Court, it was contended on behalfof the 1st respondent that the appeal should be rejected as it hasbeen filed out of time. The learned District Judge upheld the objectionand dismissed the action of the appellant. He reasoned out that sincesection 182 did not provide for an appealable period, the court mustentertain an appeal within a “reasonable time"; since the rescindedregulations made under the repealed Ordinance specified a period ofone month, that period should be reckoned as the "reasonable time".The Court of Appeal affirmed the order of the learned District Judgeand held that the previous law should be looked at, to provide forwhat was thought to be a casus omissus. Although the Court ofAppeal thought it found support for the view it took, from the dictaof my brother Amerasinghe, J. at pages 92, 95 and 96 of his ex-haustive judgment in Stassen Exports Limited v. Brooke Bond (Ceylon)Limited and another(,), I find nothing in the dicta as lending supportto that view. My brother Amerasinghe, J. was clearly not dealing withcases of casus omissus in those passages quoted by the Court ofAppeal.
Perhaps at this point, it is apposite to remind ourselves the wordsof Scarman, U. in the case of Western Bank Limited v. Schindlei<2)where he said :
“Judicial legislation is not an option open to an English Judge.Our courts are not required, as are, for instance, the Swiss courts(see the Swiss Civil Code, articles 1 and 2), to declare and insertinto legislation rules which the judge would have put there, had
SCG.T.E. Directories Lanka (Pvt) Ltd. v.
Mukthar Marikkar and Another (Dheeraratne, J.)183
he been the legislator. But our courts do have the duty of givingeffect to the intention of Parliament, if it be possible, even thoughthe process requires a strained construction of the language usedor the insertion of the words in order to do so … The line betweenjudicial legislation, which our law does not permit, and judicialinterpretation in a way best designed to give effect to the intentionof Parliament is not an easy one to draw. Suffice it to say thatbefore our courts can imply words into a statute the statutoryintention must be plain and the insertion not too big, or too muchat varience with the language used by the legislature. The courtswill strain against leaving unfilled the casus omissus.
The Court of Appeal was of the view that failure to provide foran appealable period in section 182 is tantamount to the appellantholding an unenforceable right and therefore the rescinded regulationshould be resorted to, in order to give effect to the intention of thelegislature. This view appears to be erroneous. On the other hand,to contend that, since there is no period of prescription specified, anappeal could be lodged at any time even after the lapse of a numberof years, is equally erroneous. In my view the solution to the problemcould be found within the provisions of the Civil Procedure Code (CPC)and the Prescription Ordinance No. 22 of 1871.
In terms pf section 8 of the CPC, unless specially provided forby the CPC or any other law that proceeding may be taken by wayof summary procedure, every action shall commence by a course ofregular procedure prescribed in the CPC. The appeal in this instance,quite rightly, was lodged by the appellant in the District Court by filinga plaint which conforms to the requisites of a plaint in a regular actionas specified in section 40. The 1st respondent filed his answer,conforming with the requisites mentioned in section 75 of the CPC.
Section 6 of the CPC defines an action as –
"Every application to a court for relief or remedy obtainablethrough the exercise of the court's authority, or otherwise to inviteits interference, constitutes an action".
The net of the language of the definition is cast so wide, as toinclude within it the appeal filed by the appellant. On the one handappellant's plaint is an application for relief or remedy obtainablethrough the exercise of the court's authority; on the other hand it is
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an application inviting the court's interference. The definition of a causeof action in section 5 is also given in similar sweeping terms.
“Cause of action is a wrong for the prevention or redress ofwhich an action may be brought, and includes the denial of a right,the refusal to fulfil an obligation, the neglect to perform a duty,and the infliction of an affirmative injury”.
The advantage gained by the registration of the 1st respondent’strade mark could amount to a wrong. It is a privation of the appellant'sright. A wrong is a combination of a right and its violation. See Lowev. Fernando®. Proceedings against an assessment made to the Courtof Requests in terms of the Municipal Councils Ordinance were heldto be an action within the meaning of section 5 of the CPC. SeeJalaldeen v. The Colombo Municipal Council.
The Prescription Ordinance No. 22 of 1871 governs the whole fieldof jurisdiction of the Civil Courts of the Island. See decisions of thePrivy Council in Dodwell v. Johrf5* and Fuard v. Werasooriyaf51. Thecause of action of the plaintiff attracts section 10 of the PrescriptionOrdinance as it is not caught up by any other provision of theOrdinance. Section 10 reads :
"No. action shall be maintainable in respect of any cause ofaction not hereinbefore expressly exempted from the operation ofthis Ordinance, unless the same shall be commenced within threeyears from the time when such cause of action shall have accrued”.
For the above reasons I hold that an appeal under section 182of the Code of Intellectual Property Act could be filed within 3 yearsof the date of the decision of the Registrar. The appeal is allowedand the order of the District Court and the judgment of the Courtof Appeal are set aside. In view of the special circumstances of thiscase, parties will bear their own costs of this court and of the courtbelow. The Registrar of this court is directed to send the record ofthis case back to the District Court as expeditiously as possible.
AMERASINGHE, J. – I agree.
GUNAWARDANA, J. – I agree.
G. T. E. DIRECTORIES LANKA (PVT) LTD. v. MUKTHAR MARIKKAR AND ANOTHER