Cancellation of the registration of a design can be sought on any of the three grounds, namely that the design had been previously registered in India or that it had been published in India prior to the date of registration or that the design is not a new or original design.

( 1 ) THE petitioner has filed the present petition under Section 51a of the Design Act, 1911 for the cancellation of the registered design of the respondent in respect of tricycles and seats being manufactured by them.

( 2 ) BY a certificate dated 16th August, 1976 the respondent obtained registration No. 144635 under the Design Act of a tricycle which, inter alia, consists of a blow moulded plastic seat as well as blow moulded wheels with a steel handle. The respondent also obtained another registration No. 144636, also on 16th August, 1976, from the Controller of Designs, Calcutta in respect of blow moulded plastic seat. These seats are somewhat in the shape of a duck and, according to the respondent, it was their original design.

( 3 ) IT appears that the petitioner also, after 16th August, 1976, started manufacturing and selling tricycles using somewhat similar blow moulded seats. Thereupon the respondent-herein filed a suit for permanent injunction against the petitioner being Suit No. 459 of 1982. The case of the respondent was that it was the owner of a registered design and the said right of the respondent, to the exclusive use of the said design, had been infringed by the petitioner An ex parte injunction was initially granted which was confirmed on 31st August. 1982 restraining the petitioner-herein from maunfaturing such a tricycle.

( 4 ) THEREAFTER the petitioner filed the present petition under section 51-A of the Design Act praying for cancellation of the aforesaid two designs. The main grounds on which the cancellation was sought are that tricycles and the seat of the impugned design, whose registration was obtianed by the respondent, were in fact being manufactured in India prior to the date of registration in favour of the respondent. It was further alleged that the impugned designs were not new or original and they had been previously published in India. Another contention raised was that tricycles of the similar design were advertised in various trade magazines and journals in India much prior to the date of registration in the name of the respondent. The petitioner had also contended that the designs, for which the registration was obtained,, were not novel or original.

( 5 ) ON behalf of the respondent, in the reply filed to the aforesaid petition, it had been, inter alia, contended that the petitioner is a new-comer in the field of manufacturing and selling of tricycles and its business is being carried on in violation of the respondent s registered design. The case of the respondent, as stated in its reply, is that the registered design of the respondent was not previously published in India and nor was such a tricycle brought into India from any foreign country and that they were not previously used by children in India. The respondent states that they are reputed company which has introduced a number of types of cycles and tricycles for children in Indra which are made of plastic.

( 6 ) THE petitioner filed a rejoinder reiterating the allegations contained in the petition including the contention that the respondent itself was selling such tricycles and seats prior to its having obtained registration under the Design Act.

( 7 ) ON the pleadings of the parties, the following two issues were framed :

1. Whether the petitioner is entitled to cancellation of the design No. 144635 and 144636 dated 16. 8. 76 in question on the ground as stated in the petition ? 2. Relief.

( 8 ) THEREAFTER affidavits by way of evidence were filed by both the parties. On behalf of the petitioner, six affidavits were filed and on behalf of the respondent two affidavits were filed. Thereupon the respondent moved an application for cross-examination of the deponents whose affidavits had been filed by the petitioner. By order dated 11th March, 1985 it was directed that two of the deponents, namely, Shri Joginder Singh, petitioner, and Shri Prem Banga be cross-examined for the present. The respondent not only cross-exam