JUDGMENT

1. This is a first appeal brought by the plaintiff whose suit has been dismissed by the Court of first instance, the District Judge of Moradabad. The plaintiff sued on the ground that he was in possession of a certificate granted by the Controller of designs, dated August 17,1929, certifying that a design No. 43516 had been registered in respect of the application of such design to trays of brass or other suitable metal under the Indian Patents and Designs Act of 1911. The photograph which is attached shows a large brass tray and the agents for the applicant specified the novelty by stating: "The novelty of the design lies in the grooves along the sides of the tray". The plaint set forth that the defendants had also begun to manufacture big trays of this design and that, the plaintiff had given them a notice but that they paid no heed. Paragraph 5 of the plaint stated:

According to the certificate granted by the Controller of Design the plaintiff alone is entitled to manufacture big trays approved of for five years commencing from September 17,1929.

2. The plaintiff prayed for the relief of injunction to restrain the defendants from manufacturing and selling big trays of this design and for a sum of Rs. 200 damages. The plaint did not set out under what Act and section it was brought but apparently it was brought u/s 53 of Act II of 1911, the Patents and Designs Act. Learned Counsel argued that the Amending Act of 1930, would apply, but that Act did not come into force until July 1, 1930, u/s 1(2) and the plaint was brought on April 22, 1930. The plaint, therefore, comes under the Act II of 1911, and not under the Amending Act.

3. In the written statement it was admitted that the plaintiff had got this design registered and it was claimed that the invention of the plaintiff had no utility, and that it was not a new invention or design at the date of the application for registration. Further that the applicant was not the principal or first inventor of the design and he had knowingly and fraudulently included in the application a design which is at least over 50 years old and which had been publicly manufactured and used and sold in thousands within British India by scores of people. The following two issues were framed:

(1) Would the certificate of design be liable to revocation u/s 26, Clauses (I)(a) or (6) or(c)or (e)?

(2)To what damages is the plaintiff entitled?

4. It is clear that there was a certain amount of confusion in the minds of learned Counsel as they applied Section 26, which only applied to patents and not to registered designs. In Act II of 1911 the first part up to Section 42 refers to Patents, and the second part from Section 43 to Section 54 refers to Designs, and the third part is general. By Section 29(2) it was provided that

every ground on which a patent may be revoked under this Act shall be available by way of defence to a suit for infringement.

5. The defence, therefore, and the Court, were apparently under the impression at a time the issues were framed that this section would apply and that, therefore, the first issue was framed in the manner indicated as a short, way of summarising the points which had been raised in the written statement. The attitude taken up by learned Counsel for the plaintiff was stated in the judgment:

That these issues were irrelevant and that he was entitled to succeed on the plaint and the written statement as they stood and that evidence was unnecessary.

6. That has been the attitude of learned Counsel for the plaintiff in this Court. The lower Court, however, heard the evidence of the parties and gave a decision on the questions of fact raised in the first issue as well as on the question of law. The lower Court found as a matter of fact that the plaintiff was not the author of the design and that he had not acquired it from anyone who had the rights of an author in the design and that the design was a common one for a long period prior to registration. Therefore, the lowe