( 1 ) WHEN the C. M. P. is taken up for hearing both the learned counsel expressed their desire to have the main appeal being disposed of as the arguments in the C. M. P. as well the appeal are the same and therefore we are proceeding to decide the same.

( 2 ) THE brief facts of the appeal are the appellant is the defendant in O. S. No. 5 of 1982 on the file of the District Judge, Guntur. He is proprietor of Ruth Foundry, an industry manufacturing various types of machinery like hydraulic pumps, re-drying machinery, etc. , since a number of years. The respondent/plaintiff started a foundry later to the appellant and was manufacturing high - pressure pumps which are of a special type of casing used for hydraulic pumps for pressing cotton and tobacco bales since 1974 onwards. According to the appellant, the design of this type was in existence since a long time and is a common type The said design was borrowed from West Geerman type which was in use for over fifty years in tobacco trade at Guntur and other places, where tobacco redry plants are installed. The design which the petitioner/appellant is using is novel in shape and configuration of the casing in three compartments. The appellant/petitioner is manufacturing these hydraulic pumps since 1974 and sold them to many tobacco re-drying merchants including the Lakshmi Tobacco Company, Guntur, to whom he sold in the year 1979 and another to Lavanya Tobaccos, Ongole in the year 1977 and also kakkaraya Dasayya and Co. , situated at Pasamarru. Tt is not necessary for us to state the other facts. It is false to say that the respondent is also using the same design and stating that he has invented it and got it registered in the month of September, 1978 under the provisions of the designs Act 11 of 1911. If the said design is registered by the respondent, it is by misrepresentation and playing fraud on the Department. Thereafter, the respondent filed a suit for damages and for issue of a permanent injunction restraining the defendant from manufacturing and marketing the casings of the shape and configuration as registered, design No 1478 by the plaintiff, and for a mandatory injunction directing the defendant to withdraw all the stocks of pumps and casings of the design registered by the plaintiff and destruction of dyes, moulds and casings, etc. , in possession of the defendant and his men.

( 3 ) IN the counter affidavit filed by the respondent it is staled that he has inventented the tobacco re-drying machine which is a substitute for imported machinery and for that he was conferred a National Award about ten years back, that he invented a special type of casing for hydraulic pumps for pressing tobacco bales and that the design is a new invention and an original one and the novelty recites in shape and configuration of the casing in the pumps, particularly the provision of three compartments for each pump and he got the design registered complying with all the formalities under Sec. 43 of the Designs Act.

( 4 ) THE learned District judge who visited the workshop of the petitioner as well as the respondent found that the machine manufactured by the respondent is similar, the difference is only being the finish, but not in the shape and design. In para 10 of the order, the learned Judge referred to the fact that there is no novelty with originality in the shape of the casing It is the casing with hollow space and the horizontal cross-section of the casing is rectangular in shape. Only one casing was provided for the three pumps in the machine manufactured by the German. What the petitioner had done is that he had provided three separate casings for each pump Therefore, it was contended before the learned Judge that it was a novel design or an original invention providing three separate casings for three pumps, instead of one casing as in the case of German machines. The learned Judge also referred to the fact that even though the plaintiff registered the design on 1