ORDER :

Sujoy Paul, J.

1. The subject matter of challenge in this miscellaneous appeal filed under Order XLIII Rule 1(r) of the Code of Civil Procedure, 1908 (CPC) is the order of learned Commercial Court, Indore dated 05/09/2020, whereby application filed by appellant/plaintiff under Order XXXIX Rule 1 & 2 of CPC is disallowed. The appellant and respondents are manufacturer/proprietors of water bottles branded as "Kool Kommandar" and "Cool Cutie" respectively. They have taken diametrically opposite stand relating to newness and originality of the design of their bottles. Since attempt of appellant to obtain injunction against "Cool Cutie" failed, this appeal is filed assailing the order of Commercial Court and praying that the respondent be restrained from infringing or passing off the appellant's registered design in the interest of justice.

2. Certain facts are not in dispute in the instant case and pertinently, Court below in para-6 onwards of the impugned order mentioned those facts. It is apt to mention those relevant admitted facts:-

(i) The appellant/plaintiff manufacture