A design must have substantial novelty or striking newness for the instructed eye to be considered new or original.

( 1 ) THE short point arising in this appeal against the judgment dated December 24, 1976 of M. S. Joshi, J. is : Whether the design of M/s. B. Chawla and Sons, hereinafter referred to as the appellants in respect of mirror registered at No. 139585 in class I under the Indian Patents and Design Act, 1911 (the Act), on February 28, 1972, is a "new or original" design.

( 2 ) M/s. Bright Auto Industries, hereinafter referred to as the respondents, engaged in manufacturing of various articles including rear view mirrors, prayed for cancellation of the aforesaid design of the appellants under section 51a of the Act contending that the design of the appellants was not a new 325 design and that it had no originality about it in that such designs were common in the market and the appellants had made a false claim to be the originators of the design before the controller of Patents and Designs to obtain the impugned registration. The grievance is that they were hindered in their trade by the registration.

( 3 ) THE appellants controverted these pleas, saying that they had invented the design after a good deal of hard labour.

( 4 ) THE novelty in the design in question, admittedly, is on account of the further curve in the sloping upper length side as it is not disputed that rear view mirrors, rectangular in shape with rounded edges, width side curved or sloping and the lower length side also sloping are commonly available in the market.

( 5 ) IT would be convenient at the outset to read the relevant provision of the Act. Section 5 (2) reads :

" design means only the features of shape, configuration, pattern or ornament applied to any article by any industrial process or means, whether manual, mechanical or chemical, separate or combined, which in the furnished article appeal to and are judged solely by the eye; does not include any mode or ;

"principle of construction or anything which is in substance a mere mechanical device, and does not include any trade mark as defined in section 2 (1) (U) of the Trade and Merchandise Marks Act, 1958 (43 of 1958)". Section 43 reads :

"application for registration of designs. The controller may, on the application of any person claiming to be the proprietor of any new or original design, not previously published in India, register the design under this Part. . . . . . "

SECTION 47 reads: " (1) When a design is registered the registered proprietor of the design shall, subject to the Provisions of this Act, have a copyright in the design during five years from the date of registration. . . . . . . . . " Section 51 A reads : *" (l) 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. . . . . . . . . . . . (iii) that the design is not a new or original design. "

( 6 ) IT may also be mentioned that Rule 36 of the Indian Patents and Designs Rules, 1933, provides that the applicant may, and shall, if required by the Controller in any case so to do endorse on the application of each of the representations a brief of the novelty he claims for his design. In the instant case, however, no such statement of the novelty was appended. Accordingly, the newness of the design would be taken as to shape or configuration and to be more specific as to further curve in the sloping upper lengh side, one of the right and the other on the left.

( 7 ) AKIL Ahmed, partner of the respondent, and his witnesses Jagjit Singh, Rajender Singh and Sultan Singh submitted affidavits before the learned Single Judge swearing that appellants mirror was a common type rectangular mirror with a slight curve on the upper side and such like mirrors were available in the market. They also swore that there was no newness nor originality about the design. Mr. Anoop Singh, learned counsel for the respondents, has frankly conceded that no documentary or material evidence showing the