F. S. Gill ( 1 ) AS common questions of law and fact are involved in I. As. 2057 and 2518 of 1977 in Suit No 505 of 1977 {globe Super Parts v. Para-mount Eleciricals and another), 1. As. , 2050 and 2473 of 1977 in Suit No. 502 of 1977 (Globe Super Parts v. V. K. Saggi Industries and another) and I. As 2055 and 2353 of 1977 in Suit No. 504 of 1977 (Globe Super Parts v. Indian Electricals and others), they will be disposed of by this one order. In all the three suits plaintiff is the same and reliefs sought against the various defendants are also identical. ( 2 ) GLOBE Super parts, a partnership firm, filed suit No 505 of 1977 against Paramount Electricals and Hamnami Store, defendants, on 5-7-1977 alleging that the plaintiff firm manufactures and sells Gas Tandoors of an exclusive type, which had been introduced and marketed for the past about six months. It further alleged that prior to the production of the said Tandoor by the plaintiff, the said item was never known in India or anywhere else in the world. The salient features of this Tandoor are mentioned as under :- "a hoolow round metallic body having a detachable dome-shaped cover. The said body being fixed upon a supporting ring with central opening. The base of the oven body being chimney-shaped with central opening at the top over which a dome-like hood is fixed, such that when the said oven is placed on the stove or a gas burner, that hot air is sucked in by the chimney action at the base and strikes the dome-like hood fixed over the top from where it is deflected and evently distributed inside the body and then escapes out through the ducts provided in the said hood thus heating the entire inside body of the tandoor . It was further alleged that apart from the aforesaid distinctive features, the shape and the configuration of the TANDOOR manufactured by the plaintiff are new and original, and are protected under Registered Design No. 145258 under Design Act, 1911. It was further alleged that apart from the aforesaid distinctive features, the shape and the configuration of the TANDOOR manufactured by the plaintiff are new and original, and are protected under Registered Design No. 145258 under Design Act, 1911. It is further added that by virtue of the prior use and the reputation so acquired and also on account of very wide publicity given by the plaintiff firm to its products it has a right to the exclusive adoption and use thereof and that no one else is entitled to adopt its features, get-up, layout and arrangement and to give an impression as if the Gas TANDOOR so manufactured was that of the plaintiff firm or connected with it or its business". ( 3 ) IT is further stated that Paramount Electricals (defendant No. 1) is the manufacture, while Hamnami Store (defendant No. 2) is the seller of the impugned products. It is alleged that the defendants have adopted identical and/or deceptively similar features to those of the plaintiff and have marketed Gas TANDOOR which infringes the plaintiff s Registered Design No. 145258, and that both the shape as well as the configuration of the plaintiff s design have pirated by the defendants. ( 4 ) IT is further added that the defendants have marketed the infringed products from June, 1977 in spite of having full knowledge about the prior product of the plaintiff s manufacture ; that the product of the defendants is inferior to that of plaintiff, both in material as well as in its workmanship, and that the defendants have adopted nearly all the distinctive features belonging to the plaintiff which act amounts to passing off. In this way it is alleged that the defendants have put the plaintiff to heavy loss in business and have also effected the reputation acquired in the trade. The plaintiff firm thus prayed for the grant of permanent injunction restraining the defendants from manufacturing, selling and offering for sale and directly or indirectly dealing in Gas TANDOOR which is fraudulent or obvious imitation of the plaintiff s Gas TANDOOR Registered Design No. 145258 and from doing anything with a view to enable the Registered Design belonging to the plaintiff to be so applied. The plantiff further prayed for the grant of permanent injunction restraining the defendants, their servants, agents dealers and representatives from passing off Gas TANDOOR as that of the plaintiff s manufacture and from giving an impression that the plaintiff s Gas Tandoor is either coming from the plaintiff source of manufacture or is in any manner manufactured, sold and offered for sale under a licence or a consent of the plaintiff. The third prayer is for rendition of accounts by the defendants and the last one is that an order for the destruction of the impugned goods and other media pertaining thereto including the catalogues, logo device and the printing blocks, be passed. ( 5 ) ALONG with the plaint, the plaintiff firm also filed I. A. No. 2057 of 1977 under order 39 Rules 1 and 2 read with Section 151 of the Civil Procedure Code for the grant of interim injunction restraining the defendants, their servants, agents, dealers, representatives from manufacturing, selling or offering for sale directly or indirectly dealing in Gas Tandoor which is fraudulent or obvious imitation of the plaintiff s Gas Tandoor under Registered Design No. 145258 and from enabling the Registered Design belonging to the plaintiff to be so applied and from passing off Gas Tandoor as that of the plaintiff or connected with the plaintiff or its business or being manufactured under permission or licence from the plaintiff. ( 6 ) AN ex-parte interim injunction was granted by this Court to the plaintiff on 6th July, 1977 and notices were sent to the respondents. The respondents have filed their replies and have opposed the prayer for interim injunction. Paramount Electrical (defendant No. 1) also filed I. A. No. 25l8 of 1977 under Order 39 Rule 4, read with section 151 of the Civil Procedure Code for the vacation of the said ex-parte interim injunction. Reply to this has also been filed by the plaintiff. ( 7 ) ANOTHER Suit No. 502 of 1977, has been filed by Globe Super Parts against V. K. Saggi Industries and Delhi Glass House for the same kind of reliefs as have been sought in Suit No. 505 of 1977. According to the plaint, V. K. Saggi Industries (defendant No. 1) is the manufacturer, which has marketed the impugned product and defendant No. 2 is a firm which sells these goods. According to the plaint, V. K. Saggi Industries (defendant No. 1) is the manufacturer, which has marketed the impugned product and defendant No. 2 is a firm which sells these goods. Along with the plaint l. A. 2050 of 1977 was also filed by the plaintiff under Order 39 Rules 1 and 2 read with Section 151 of the Civil Procedure Code for similar interim reliefs and on the same grounds Ex-parte interim injunction was granted to the plaintiff on 1st July. , 1977. The defendants have opposed the application for the grant of interim injunction M/s. V. K. Saggi Industries (defendant No. 1) have also filed LA. No. 2473 of 1977 under order 39 Rule 4 read with Section 151 of the Civil Procedure Code. for the Vacation of the ex -parte interim injunction. Reply to the same has also been filed by the plaintiff. ( 8 ) THE third suit filed by the plaintiff bears No. 504 of 1977. This is against Indian Electricals (defendant No. 1) which is the manufacturer ; while Hamani Store and Prakash Agencies (defendants 2 and 3) have been impleaded as they sell the goods manufactured by defendant No. 1. This suit is also for infringement of Registered Design, copy right, passing off, rendition of accounts and damages etc. I. A. 2055 of 1977 was filed by the plaintiff under Order 39 Rules 1 and 2 read with Section 151 of the Civil Procedure Code for the grant of interim injunction. An ex-parte interim injunction was granted by the Court oh 6th July, 1977 and notices were issued to the respondents. K. I. A. No. 2353 of 1977 has also been filed by Prakash Agencies (defendant No. 3) under section 151 of the Civil Procedure Code for the dropping of the proceedings against this defendant, ( 9 ) REPLIES and rejoinders have been filed by the parties and I have beard the arguments in the various applications in the three case together, as similar question arise for determination in all the cases. ( 10 ) SHRI Anand, the learned counsel for the same petitioner in all the three cases, has contended that the petitioner firm is the proprietor of the registered design that it has the sole statutory right to manufacture and sell the Gas Tandoor. According to him the respondents have committed piracy of the new and original design of his client. According to him the respondents have committed piracy of the new and original design of his client. On the other hand the respondents have pleaded that the registered design was not original or new, but was prior published to the date of the registration. In this connection Sarvshri M. L. Mangla and K. L. Aggarwal, the learned counsel for the respondents in the various cases, have drawn my pointed attention to an advertisement got published by the petitioner plaintiff in the issue of Hindustan Times dated 2nd January, 1977. It is contended that full design had been shown there in the figures. Which had been drawn in the advertisement. It is accordingly submitted that this was a clear pre-publication, which is even evident to a naked eye. It is contended that even if the design be taken as original, it is certainly not new on account of prior publication. It is further argued that the advertisement dated 2nd January, 1977 gives the shape and configuration of the article more clearly than even shown in the registration certificate. It may be pointed out there that the registration of the design related only to the shape and configuration of the Tandoor and was not a patent with regard to the functioning of the article. ( 11 ) THE advertisement was published on 2nd January, 1977, whereas the application for the registration of the design was made before the Controller on 21st February, 1977 i. e. , after one month and three weeks of the advertisement. Shri Anand has submitted that the advertisement of 2nd January did not amount to prior publication as it did not demonstrate or reveal the entire design and instead showed two and not the three dimensions of the article. It is further submitted that the respondents cannot take advantage of the alleged pre-publication as they have not stated that they acquired the knowledge from the newspaper advertisement. This argument has not force, as at this stage only a prima facie case of pre-publication is to be seen. Parties have yet to adduce evidence in the main suits. Such an argument therefore does not have any weight. On the other hand, the advertisement dated 2nd January, 1977 seems to be exhaustive enough to indicate the shape and configuration of the Tandoor. This point obviously goes against the petitioner and in favour of the respondents. Parties have yet to adduce evidence in the main suits. Such an argument therefore does not have any weight. On the other hand, the advertisement dated 2nd January, 1977 seems to be exhaustive enough to indicate the shape and configuration of the Tandoor. This point obviously goes against the petitioner and in favour of the respondents. ( 12 ) ANOTHER documentary piece of evidence is the bill issued by the petitioner firm for the sale of three super Cook Gas Tandoor to M/s Anand Crockery Store, Gaffar Market, Karol Bagh, New Delhi on 1st January, 1977 The price of each piece has been shown to be Rs. 128. 00 Payment had also been made by M/s Anand Crockery Store. A photostate copy of the bill has been placed on the record, which shows that the said bill had been issued on the letter head of the petitioner i. e. Globe Super Parts. It is argued by the learned counsel for the respondents that the sale of these three pieces of the Gas Tandoor had been effected much before the making of the application to the Controller General of Patents, Designs and Trade Marks. Thus the article had already, been sold and was available to the public in the market. It is further stated that there was no direction to M/s Anand Crockery Store to keep the article secret. Obviously it was for the purposes of sale. In what circumstances the sale had been effected on 1-1-1977 will be a matter to be explained during the course of evidence. ( 13 ) FURTHER, in the advertisement the number of the patent application has been described to be 65-76. In this connection Shri Anand he submitted that the application was undoubtedly made on 18th December, 1976 but it was actually published in the Gazette of India on 28th May, 1977. According to him there could be no inspection by the Public before the same was published in the Gazette. la support of his contention he has referred to Section 23 of the Patent Act, 1970. This argument regarding inspection does not furnish any answer to the evidence of pre-publication contained in the advertisement of 2nd January, 1977 or the sale of the three pieces of the Super Cook Gas Tandoor as shown in the photostate copy of the bill issued by the petitioner to M/s Anand Crockery Store. This argument regarding inspection does not furnish any answer to the evidence of pre-publication contained in the advertisement of 2nd January, 1977 or the sale of the three pieces of the Super Cook Gas Tandoor as shown in the photostate copy of the bill issued by the petitioner to M/s Anand Crockery Store. At the moment no final opinion can be given about the value of these documents. The matter is being looked into purely for the purposes of finding a prima facie case to decide the question of ad interim injunction. ( 14 ) IT has been vehemently argued by the learned counsel for the respondents that there had been pre-publication as pointed out earlier and that the registration of the design on 21st February, 1977 could not be considered to be new and original with regard to the shape and configuration. Prima facie I find force in this contention. ( 15 ) IT is further argued by the learned counsel for the respondents that a few days after the filing of the suits, applications were made in this court under Section 51-A of the Patents and Designs Act for the cancellation of the registration as it was alleged that on account of pre-publication the design was not new as was claimed by the petitioner. Section 43 of the Actclearly provides that the Controller may, on the application of any person claiming to be proprietor of any new or original design, not pre-published in India, register the design. Thus it is a pre-condition that the design should not have been previously published in India. It is argued that the respondents had taken the earliest opportunity to apply for the cancellation of the registration on the ground of pre-publication. The applications made under Section 51-A of the Patents and Designs Act are also relevant for deciding the question of interim injunction, although it is not a sole determining factor. ( 16 ) THE learned counsel for the parties have cited some authorities during the course of their arguments but they conveniently be ignored as they are not relevant in assisting the determination of the vital question of prepublication. The decision principally rests on factual position, which mostly emerges from the two documents viz. ( 16 ) THE learned counsel for the parties have cited some authorities during the course of their arguments but they conveniently be ignored as they are not relevant in assisting the determination of the vital question of prepublication. The decision principally rests on factual position, which mostly emerges from the two documents viz. advertisement dated 2nd January, 1977 and the bill dated 1st January, 1977 issued by the petitioner firm on selling three pieces of the impugned article to M/s Anand Crockery Store. ( 17 ) FOR the foregoing reasons, I hold that the petitioner has not been able to make out a prima facie case for the grant of ad interim injunction in any of the three suits. 1 accordingly dismiss the three I. As in the various suits viz. I. No. 2057 of 1977 in suit No. 505 of 1977,i. A. No. 2050 of 1977 in Suit No. 502 of 1977 and I. A No. 2055 of 1977 in Suit No. 504 of 1977, filed under Order 39 Rules 1 and 2 read with Section 151 of the Civil Procedure Code for the grant of interim injunction. As a result thereof I. A. No. 2518 of 1977 in Suit No. 505 of 1977 and I. A. No. 2473 of 1977 in Suit No. 502 of 1977, filed under Order 39 Rule 4 read with Section 151 of the Civil Procedure Code for the vacation of the Ex-parte interim injunctions, already granted, succeed. Consequently, the ex-parte interim injunctions granted in all the three cases stand vacated. ( 18 ) I. A. No. 2353 of 1977 in Suit No. 504 of 1977, filed by defendant No. 3 under Section 151 of the Civil Procedure Code for dropping the proceedings against this firm is bound to fail on account of the allegations made in the plaint against this defendant. The names of a party cannot be deleted from the array of defendants. This defendant, if so advised, may not appear in the Court and allow the proceedings to be taken against it ex-parte I. A. No. 2353 of 1977 is accordingly dismissed. ( 19 ) THE defendants are, however, directed to maintain correct and regular account of their business in respect of Gas Tandoors sold by them and file a copy of the account regularly in the Court at the end of every three months. ( 19 ) THE defendants are, however, directed to maintain correct and regular account of their business in respect of Gas Tandoors sold by them and file a copy of the account regularly in the Court at the end of every three months. The parties are, however, left to bear their own costs in all the I. As. ( 20 ) I may add the observations made in this order are without prejudice to the merits of any of these cases.