Valmiki J. Mehta, J.

1. This first appeal is filed under Order 43 Rule 1(r) CPC impugning the order of the trial court dated 19.2.2014 which has allowed the application of the respondent/plaintiff under Order 39 Rules 1 & 2 CPC and dismissed the application of the appellant/defendant under Order 39 Rule 4 CPC. Appellant/defendant by the impugned order has been restrained from using a machine which is used for manufacturing of combs on the ground that the machine is a copy of the machine made by the respondent/plaintiff from the drawings over which respondent/plaintiff has a copyright under the Copyright Act, 1957.

2. The complete facts with respect to the case/claim as put forward on behalf of the respondent/plaintiff are succinctly stated in paras 1 to 3 of the impugned judgment and the same read as under :

1. “The plaintiff through present suit is seeking permanent injunction, rendition of account, delivery up etc by putting up a case that plaintiff is engaged in business of manufacturing and marketing of cosmetic products, viz. Nail cutters, nail sharpeners, fillers, trimmers, buffs, manicure set, pedicure set, brushes, scrubbing brushes etc and allied and cognate goods. The plaintiff claims that it is continuously making efforts for developing new products/ machine equipment and also for improving efficiency, efficacy and dependability of its existing products through its dedicated research and development department. Further Plaintiff contends that it spends heavily on its abovementioned development activities. It is the case of the plaintiff that in year 2009, it got developed an equipment/ machine namely Teeth Cutting Machine after a lot of research and spending labour, skill, efforts and money for the development of the said machine. The said machine namely teeth cutting machine is new and novel in nature which is used for manufacturing of a specific product namely comb. It is further averred that the plaintiff through its research, labour skill, effort and money has also developed major components such as Disk Teeth Cutter, Comb Work – Piece Mounting Braket Pneumatic Piston, control Panel, Sliding Platform and Mounting Table etc. The plaintiff’s machine and major components are based on “industrial drawing” which were prepared by its employee / draftsman technicians during the course of their employment for and on behalf of plaintiff and under instructions and directions of Director of the plaintiff namely Sh. Sandeep Jain. The said industrial drawings are original in character and artistic in nature. These drawings define and declare the shape and measurement of machine which ultimately makes machine to function and perform. The plaintiff is owner and proprietor of artistic work involved in said industrial drawings. It is claimed that the Plaintiff hold copyright in said industrial drawing and same are protected under the provisions of The copyright Act 1957. It is further averred that plaintiff applied for obtaining the copyright in relation to said drawing under the title “ASSEMBLY DRAWING OF TEETH CUTTING MACHINE” under no. 4564/2012-CO-A dt. 16.04.2012”. the plaintiff further alleged that the services of one Sh. K.K. Gupta proprietor of M/s Metalware, 3, Peepal Drive, Chattarpur Farms, New Delhi were engaged for manufacturing and fabricating the said machine including aforesaid major components based on the industrial designs provided by the plaintiff. The same were prepared at the instructions and on behalf of plaintiff for which consideration was paid by the plaintiff. The plaintiff is making commercial use of said industrial drawings in regular course of its business by converting these two dimensional industrial drawings into three dimensional finished products which are being used to manufacture product namely comb since year 2009. The plaintiff, under statutory as well as in common law, is proprietor of industrial drawings of said products.

2. The Grievance of plaintiff is that the defendant is eng