( 1 ) THIS is a petition under Section 51-A of the Designs Act,1911 for the cancellation of the design No-163216 in Class I dated 6th May, 1991 registered in the name of respondent M/s Monica Chawla. The petitioner claims that the design of the product baby Bouncer which is impugned in the present petition, cannot be and could not be registered under the Designs Act as the said design had been published before the registration by the respondent herself. Written statement has been filed wherein the respondent has taken varius pleas, but has admitted that the design of Baby Bouncer, i. e. , the impugned design, has been in use by her since 1987. The petitioner on the basis of this admission, in the written statement has moved an application under Order 12 Rule 6 for judgement on admissions.

( 2 ) I have heard both the parties. Mr. Bansal conceded at the Bar that this design has been in use by the petitioner since 1987, which was long before the registration in 1991. To consider the merit of both the application and the main petition, it will benecessary to have a look at the relevant provision of law. Section 51-A of the Designs Act reads as under ;-

"51-A. Cancellation of registration- (1) Any person interested may present a petition for the cancellation of the registration of a design - (a) at any time after the registration of the design,to the High Court on any of the following grounds, namely:- (i) that the design has been previously registered in India; or (ii) that it has been published in India prior to the date of registration; (iii) that the design is not a new or original design. "

( 3 ) IT is stated that the respondent had in fact initiated proceedings against the petitioner for the alleged breach of its registered design vide Suit no. 1594/91 and that the present petition is malafide. Respondent has further alleged that the petitioner has no locus standi to institute the present suit. This Court cannot pass any order. During the course of arguments, the respondent could not satisfy me as to why the present petition could not be instituted by the petitioner, particularly, when a suit is pending against it in respect of the same design. That fact alone makes the petitioner a person interested as contemplated under Section 51-A. The respondent could not also advance any arguments on her objection that this Court had no jurisdiction to grant the relief in the present petition. The said objections are, therefore, dismissed.

( 4 ) THE question as to what would amount to pre-publication of the design has been very well stated in commentary by Russel and Clerk in Chapter-IV. This question has been dealt with as under :-

"meaning of publication Broadly speaking, there is publication if the design has been disclosed to the public as opposed to being kept secret. The question which has to be decided is, therefore, has the public been put in possession of the design? Has it knowledge of the design? It is not, of course, necessary that every member of the public should possess the knowledge. It is sufficient, and there will be publication if the knowledge was either- (1) Available to members of the public; or (2) Actualy in fact shown and disclosed to some individual member of the public who was under no obligation to keep it secret. It is not necessary that the design should have been actually used. "while considering the cases of knowledge available to public in Harris Vs. Rothwell, Lindley L. J. , reported as (1887) 4 R. P. C. 225, it has been held in that case as under :-

"it is sufficient to show that the invention was so described in some book or document, published in this country, that some English people may fairly be supposed to have known of it. "again in Otto Vs. Steel, reported as (1886) 3 R. P. C. 109 (112), Pearson, J. has said as under :-

"the question is whether or not this book has been published in such a way as to become part of the public stock of knowledge in this country. It is not, to my mind,