May 22, 2013 | 03:48 PM (BD Time)
22 May, 2013 Wednesday
Willful disregard to the authority of Court amounts to contempt
Md Muzammel Hossain CJ
Surendra Kumar Sinha J
MA Wahhab Miah J
Nazmun Ara Sultana J
Syed Mahmud Hossain J
Md Imman Ali J
Md Mamtaz Uddin Ahmed J
Md Shamsul Huda J
July 20th, 2011.
Sunil Chandra Chowdhury................
Elders Limited and antoher..............
Contempt of Court (XII of 1926)
Sections 2 and 3
The appellant being a very responsible public servant did never think even to disobey the law or orders of the Court. The appellant has been found guilty of contempt of the Court unjustly. ..........(11&12)
Abdul Baset Majumder, Senior Advocate Instructed by Md Nawab Ali, Advocate-on-Record-For the Appellant.
Ex-parte-For the Respondents.
Nazmun Ara Sultana J: This appeal has arisen out of a judgment and order dated 5-2-2002 passed by the High Court Division in Contempt Petition No. 03 of 2001 arising out of Trade Mark Application No.1 of 2001 holding the appellant guilty of the Contempt of Court and sentencing him to pay a fine of Taka 2,000 in default, to suffer simple imprisonment for 15 (fifteen) days.
2. The respondent No.1 Elders Limited filed Trade Mark Application No.1 of 2001 before the High Court Division under Section 46 of the Trade Marks Act, 1940 for rectification of the register of Trade Mark by removing the registered Trade Mark No.C-5707 in Class-29 therefrom.
3. The relevant facts necessary for disposal of this appeal are as follows:-
The petitioner of Trade Mark Application No.1 of 2001 is the owner of Trade Mark Nos. 29058 and 29059 in Class-29 with effect from 12-7-1989 and after initial registration of these marks they were renewed for a further period of 15 years with effect from 12-7-1996. That KAS Dairies Ltd (hereinafter called "the company") also obtained registration of the similar mark from the Trade Mark registry being Trade Mark No. C-5707 in Class-29. Knowing about that trade mark number of "the company" the petitioner filed a rectification case before the Registrar of trade marks for removal of the mark of the said company and that rectification case was registered as Rectification Case No.312 of 2000. That the said company also after obtaining registration of their mark earlier filed two other rectification cases, namely, rectification Case Nos.301 of 2000 and 302 of 2000 for removal of the registered marks of the petitioner. The said company filed Title Suit No. 30 of 2000 also wherein they also filed an application for injunction whereupon a show cause notice was issued upon the petitioner. Thereafter, the petitioner withdrew his rectification case from the Trade Mark Registry and filed Trade Mark Application No.1 of 2001 before the High Court Division. On 29-3-2001 a rule was issued on that application calling upon the Registrar of Trade Marks, Dhaka and "the company" to show cause as to why the Trade Mark No.C-5707 in Class-29 should not be expunged from the register of Trade Marks. At the time of issuance of that rule a stay order also was granted staying operation of the said registered Trade Mark No.C-5707 in Class-29 and also further proceeding of the said Title Suit No.30 of 2000 for a limited period. Subsequently, the said period of stay was extended from time to time and it remained in force upto 11-9-2001. It is stated that due to miscalculation of time the petitioner could not get the stay order extended before expiry of the said period.
However, on 19-9-2001 the petitioner obtained a fresh order of stay in respect of the said trade mark, but during this gap, i.e. between 12-9-2001 and 19-9-2001 the Rectitication Case Nos.301 of 2000 and 302 of 2000 filed by the said company were heard and disposed of by the present appellant by order dated 16-9-2001.
4. The petitioner Elders Limited thereafter, filed Contempt Petition No.3 of 2001 against this appellant for holding him guilty of contempt of Court alleging that the contemner-respondent showed total disregard to this Court and undermined the position and the authority of the High Court Division willfully and with mafatide motive.
5. This appellant appeared in that Contempt Petition No.03 of 2001 and contested by filing affidavit-in-opposition. The High Court Division, after hearing both the parties and considering the facts and circumstances, found this appellant guilty of contempt of Court and sentenced him as aforesaid making observations to the effect that this appellant being a public servant acted deliberately with the intention to nullify Trade Mark Application No. 1 of 2001, that when the matter was pending before this Court the contemner ought to have kept his hands off in respect of the proceeding, that by disposing of the rectification cases, the dignity and authority of this Court have been trampled and transgressed, that the contemner taking the advantage of not getting the stay extended by the petitioner in time hurriedly took up the cases for hearing and disposed of the cases ex-parte which has made the Trade Mark Application No.1 of 2001 pending before the High Court Division infructuous and this action of the contemner amounts to Contempt of Court.
6. Being aggrieved by and dissatisfied with this judgment and order the contemner Sunil Chandra Chowdhury, the Deputy Registrar of Trade Marks has preferred this appeal on the main contentions that the High Court Division was wrong to hold that though there was no allegation against the appellant as to violation of any particular order of Court, the action of the appellant amount to contempt of the Court, that the appellant has not flouted any order of the High Court Division and he has great respect for this Court and he honestly and sincerely proceeded with those rectification cases in discharging his official duty only at a point of time when there was no existence of any order staying the further proceeding of those Rectification Case Nos.301 and 302 of 2000; that the appellant did never intend to show any disregard or disobedience to this Court and his action of proceeding with the above rectification cases was not intended to frustrate any proceeding of Trade Mark Application No.1 of 2001; that the appellant did not commit any contempt of Court and, as such, the impugned judgment and order is illegal.
7. The petitioner-respondent No. 1 did not appear in this appeal to contest. However, we have heard Mr Abdul Baset Majumder, the learned Senior Counsel for the appellant. Mr Majumder has made submission to the effect that this appellant is a responsible Government Officer who served as a Magistrate, First Class also and he has high regards for Courts and he never thought even of committing any contempt of Court. That in this particular case the contempt petitioner Elders Limited took several adjournments in Rectification Case Nos.301 of 2000 and 302 of 2000 before 16-9-2001 and that on 16-9-2001 when the cases were put up before this appellant he enquired the learned Advocates of the parties as to whether there was any stay order granted by the High Court Division, but the learned Advocates informed him that the period of stay expired and thereafter no, stay order was passed and being thus informed the appellant proceeded with those rectification cases with bonafide and sincere intention of discharged his official functions, that the appellant had never any intention to nullify the Trade Mark Application No.1 of 2001 and there could not be any reason also for this appellant to nullify that Trade Mark Application. The learned Counsel has argued that the High Court Division most unjustly and wrongly hold that this appellant seized the opportunity to pass
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