JUDGMENT :

G.S. Sistani, J.

The present appeal has been filed under section 13 of the Commercial Courts, Commercial Division and Commercial Appellate Division of High Courts Act, 2015, read with order XLIII Rule 1(r) and section 151 of the Code of Civil Procedure, 1908 ('CPC') impugning the order dated 08.01.2018 passed by a Single Judge of this Court whereby the application of the appellants bearing I.A. 6056/2017 under Order XXXIX Rule 1 and 2 read with Section 151 of CPC in CS (Comm) 361/2017 has been dismissed.

2. The suit was filed by the appellants against the respondents alleging imitation of the design of appellants' ball point pen. Some necessary facts required to be noticed for disposal of this appeal are that appellant no.1 had developed a design for a pen, which was registered in India as Design No.263172 ('172 design') dated 10.12.2013 claiming priority from its Japanese Design No.1515380. The said design was applied by the appellants to its Energel series of pen, in particular Pentel Energel BL-417, and was launched in India in August 2014.

3. It was alleged that in the month of October, 2016, the appellants came across the respondents' product 'Montex Mastani', which is