MANMOHAN SINGH, J.

1. The present appeal has been filed under Order XLIII Rule 1 CPC against the order dated 16th July, 2008 passed by the learned Single Judge of this court allowing the application of the respondent (plaintiff in the suit) under Order XXXIX Rule 1 and 2 CPC for restraining the appellant/defendant from reproducing, printing, publishing and distributing, selling or offering for sale prints in any form, whatsoever that are colourable imitation or substantial reproduction of the plaintiff’s fabric prints including the underlying drawings/sketches thereof and dismissing the application of appellant (defendant in the suit ) under Order XXXIX Rule 4 CPC read with Section 151 for vacation of ex-parte injunction order passed by this court on 2nd February, 2007.

2. The Plaintiff-Respondent herein filed a suit CS (OS) No. 183/2007 on 01.02.2007 seeking a decree of permanent injunction, damages and rendition of accounts against the defendant for infringement of the Plaintiff’s alleged copyright in the designs allegedly developed by the Plaintiff.

3. The Plaintiff, Tahiliani Design Pvt. Ltd. is a Private Limited Company under the creative leadership of Mr. Tarun Tahiliani. It has a major presence in the fashion industry in India and enjoys a global reputation and has over 80 outlets in 20 countries.

4. In September 2003, he became the first Indian designer to showcase his work at the prestigious Milan Fashion Week. He has been awarded the Moet and Chandon Fashion Tribute 2004 Award for Designer of the Year for India, and was invited to represent India at Hong Kong in October 2004. He was also awarded the F Award 2004 for Best Women’s Designer for Couture.

5. It is alleged that the drawings which are made in the course of developing the garments and accessories by the plaintiff are artistic works under Section 2(c)(i) of the Copyright Act, 1957. The patterns printed or embroidered on the fabric are also artistic works in their own right and are developed by the plaintiff. The garments or accessories themselves are works of artistic craftsmanship under Section 2(c)(iii) of the Act, while the patterns printed or embroidered on the fabric are also artistic works in their own right. The Plaintiff does its creative work on computers and claims to be the author under Section 2(d) (vi) of the Copyright Act. The Plaintiff claims to be the first owner of Copyright in all the products of the company under Section 17(c) of the Copyright Act.

6. The plaintiff alleges infringement of copyright by the defendant on the ground that there is a colourable imitation or substantial reproduction of the plaintiff’s fabric prints including the underlying drawings/sketches thereof, or of any other of the plaintiff’s copyrighted works including works of artistic craftsmanship or other literary or artistic works.

7. The learned single Judge by the impugned order has confirmed the ex parte ad interim injunction granted on 2nd February, 2007. Against this order, the present appeal has been filed on the following contentions by the Defendant.

8. CONTENTIONS OF THE DEFENDANT

a) The plaintiff is not registered under The Designs Act, 2000 which is mandatory for seeking protection under it, thus he has no right to claim protection under the above Act.

b) The plaintiff is also not the registered owner of the copyright, hence, he has no right to claim protection under the Copyright Act, 1957.

c) The plaintiff has no right to claim protection under the Copyright Act as the artistic work for which copyright is alleged to exist is actually ‘design’ which comes under the purview of the Designs Act, 2000 and since the same are not registered under the Designs Act, the plaintiff is not entitled to protection under the said Act.

d) The textile design do not constitute ‘artistic work’ within the meaning of Section 2(c)(i) of the Copyright Act, 1957 and is, therefore, not capable of protection. The suit of the plaintiff is liable