( 1 ) IN an action for infringement of its registered design, M/s. Bansal Plastic Industries, the plaintiff, has filed this application under Order 39 Rules I and 2 read with Section 151 of the Code of Civil Procedure seeking an order restraining the respondents, their servants, agents, stockists, dealers and all other persons on their behalf from manufacturing and selling the toy Horse of the design in suit till the final disposal of the suit.

( 2 ) ACCORDING to the averments in the plaint, the plaintiff was carrying on business, inter alia, of manufacturing and marketing children s tricycles and toys. One of its propucts was a toy Horse . The plaintiff prepared its design in August, 1983 It was a distinctive design with unique features and configuration. The design was new and original and had not been previously published. In order to protect its right in that design the plaintiff made an application for registration of the said design under No. 153343 dated 7th August, 1983. The design was registered and a certificate issued on 6th December, 1983 by the Controller of Patents and Designs, Calcutta with effect from 7th August, 1983. The renewal application made by the plaintff was pending. The said registration was valid, subsisting and in force.

( 3 ) FURTHER case of the plaintiff is that M/s. Shiva Industries, defendant No. 2, was manufacturing the Toy Horse for M/s. Neeraj Toys Industries, defendant No. 1. The design of the toy Horse of the defendants was identical/similar to the registered design of the toy Horse of the plaintiff. The defendants had infringed the statutory right of the plaintiff in respects of the said design and were threatening to continue to infringe its exclusion right in respect of the said design. In the application (1. A. 8722 of 1988) it was also alleged that the plaintiff had a good prima facie case, balance of convenience was in its favour and it shall suffer an irreparable loss in case temporary injunction was not granted.

( 4 ) THIS application was resisted by the defendants. Defendant No. 2 in its written statement denied that it was manufacturing any toy Horse as alleged, either on its own or for any other person or firm. It was averred that the plaintiff has no cause of action against defendant No. 2.

( 5 ) DEFENDANT No. I in its written statement pleaded that the design ot the plaintiff had no distinct features and configuration. It was wrong that this design was original or was unpublished. The toy Horse was common toy for children and was in market for decades. Defendant No. I had already filed an application under Section 51a of the Design Act, 1911 (for short the Act ) for cancellation of the registration of the plaintiff s design. It was also averred that the toy Horse of the defendant was not identical/ similar to the plaintiffs toy Horse . The main features of the two designes was the head of the horse. Two heads were entirely different. The head which the defendant was using was of a horse. The head of the plaintiff s toy Horse cannot be said to be a head of the horse. There were other differences as well. It was alleged that the plaintiff has no prima fade case and the balance of convenience was in favour of the defendants,

( 6 ) THE plaintiff has filed a copy of the certificate which shows that its design in respect of toy Horse was registered under registered design No. 153343 dated 7th August, 1983. The certificate says "the novelty resides in the shape or configuration of the HORSE as illustrated. " The certificate contains an endorsement of disclaimer which reads : "no claim is made by virtue of this registration in respect of any mechanical or other action of the mechanism whatever or in respect of any mode of construction of the article. "

( 7 ) "when a design is registered, the registered proprietor of the design shall, subject to the provisions of this Act, have copyright in the design during five years from the date of registration. " (Sec