Judgment :- K. M. NATARAJAN, J. This revision is directed against the order of interim injunction granted by the Vacation civil Judge, Tirunelveli, in I.A. No 164 of 1989 in T.M.O.P. No. 66 of 1989. The case of the respondents plaintiffs is that they are the proprietors of a novel and original design for containers which has been duly registered on All India basis under No. 153931 as on 30.12.1983 under the Designs Act, 1911. a photo copy of the design registration is marked as document No. 1 while the container is marked as M.O.1. According to the respondents, the said container has a distinctive shape and configuration and that they have been exclusively marketing edible oil (coconut oil) in such containers. The respondents have done extensive business to the tune of 186 lakhs of rupees as per the statements of sales furnished in the plaint . They have spent a large amount for advertisements. Thought the period of five years have expired, they paid the renewal fee even prior to that date. They applied for renewal on 26.8. 1988 long prior to the expiry of the copyright on 30.12.1988 on the other hand, the petitioners herein have been manufacturing shampoo under the name "Clinic and Clinic Special" and has been using the container as per M.O. 2 and have slavishly copied and imitated the respondents containers. A specimen of the offending container used by the petitioner herein is filed along with the plaint as M.O. 3. By such user of the containers, the petitioners have been guilty of piracy of the respondents registration under Section 53 of the Designs Act, 1911. Besides, the petitioners are guilty of passing off their offending products. A specimen of the offending container used by the petitioner herein is filed along with the plaint as M.O. 3. By such user of the containers, the petitioners have been guilty of piracy of the respondents registration under Section 53 of the Designs Act, 1911. Besides, the petitioners are guilty of passing off their offending products. Hence, the respondents field the suit they also prayed for ad interim injunction till the disposal of the suit restraining the petitioners herein from in any way infringing the respondent's containers registered under the Design Act under registration No. 153931 field as document No. 1 and M.O. 1 in the plaint by manufacturing selling or offering for sale or in any manner advertising the same through news papers, magazines telecasting through television by using the offending container field as M.O. 3 in the plaint or any other container deceptively similar in the respondents registered containers and also from passing of their offending containers M.O. 3 as and for the registered container of the respondents herein filed as document No. 1 and M.O. 1 is the plaint till the disposal of the suit. The said suit was filed before the vacation Civil Judge on 10.5. 1989 and the said Court was pleased to pass interim injunction till 20.8.1989 aggrieved by the same, this revision is field on 23.6.1989. the petitioner has also obtained an order of stay on the same date. 2. The learned counsel for the petitioner. Mr. U.R. Rao mainly contended that the validity of the certificate expires on 30.12.1988 and no order of the injunction ought to have been granted on the basis of the said document. Secondly, it was submitted that the suit should have been filed before the lowest Court of competent jurisdiction, nearly, District 'unaif's Court or Sub-Court, and not before the District Court. In view of Section 15 of the code of Civil Procedure. Sad for the relief of passing off, the remedy is only to file a suit normally under Section 9 of the Civil Procedure Code and sot under the provision of the Designs Act. In view of Section 15 of the code of Civil Procedure. Sad for the relief of passing off, the remedy is only to file a suit normally under Section 9 of the Civil Procedure Code and sot under the provision of the Designs Act. The learned counsel also submitted that the requirement as per Rule 3 or order 39, C.P.C. of delivery of the copies of the affidavits and plaint and the document on which the respondents relied, were not complied with while granting ex parte interim injunction and so the Court ought not to have extended the stay till 20.6.1989 Even on merits, it is submitted, by the learned counsel for the petitioner that the petitioners "clinic plus shampoo" costs Rs. 40/-while that of the bottle of the respondent costs a lesser amount of Rs. 14/- Further, their turn-over is much higher than the turn-over of the respondent and as such the injunction granted is not proper and valid. The learned counsel for the respondent, Mr. S Subbiah in reply to the above arguments, mainly submitted that the revision petition itself is not maintainable as it is only an ad-interim injunction passed by the lower Court and the remedy of the petitioner is to move the said Court to vacate the interim injunction under Order 39 Rule 4, C.P.C. Further, the very order challenged is the order granting injunction till 20.6.1989 and the revision was filed on 23.6.1989. Fresh orders were passed on 20.6.1989. Since the injunction granted under the impugned order has expired already, the revision is not maintainable as infructuous. The learned counsel also submitted that the questions as regards the maintainability of the suit and all other objections raised here are matters to be agitated only in the suit after the filing of the written statement, when especially the suit has already been taken on file and summons had been issued . The question of jurisdiction is a matter to be decided by the said Court. Let as consider the rival contentions of both the parties in seriatim. 3. As regards the question of maintainability of the revision, the learned counsel for the respondents, Mr. S. Subbiah, relied on the decision of this court in Syada Zahara Jabeen v. Sandmanabhan (1989-1 L.W.112) and submitted that no revision is maintainable. Let as consider the rival contentions of both the parties in seriatim. 3. As regards the question of maintainability of the revision, the learned counsel for the respondents, Mr. S. Subbiah, relied on the decision of this court in Syada Zahara Jabeen v. Sandmanabhan (1989-1 L.W.112) and submitted that no revision is maintainable. That was a decision rendered by me after considering the earlier decisions of this Court and also the decisions of the Supreme Court and other High Courts. It was held : "The ex prate order of interim injunction granted cannot be said to be a case which warrants interference by High Court under S. 115, C.P.C. It is only in cases where the rights or obligations of the parties in controversy were adjudicated by the Court, that the question of revision against that order arises under S.115 C.P.C. and/or not otherwise" * 4. The learned counsel for the respondents pointed out that this Court in the above decision relied on the decision of the supreme Court in Baldevadad v. Filtmatan Ltd. 1970 AIR(SC) 406, 1969 (2) SCC 201 , 1970 (1) SCR 435 and the decision of the Himachal Pradesh High Court in Ramdas v. Subhan Baskshmi 1977 AIR(HP) 18) and held that only in cases where the rights or obligations the decision on controversy were adjudicated by the Court, the question of revision against that order arises under Section 115 C.P.C. and not otherwise. The learned counsel for the revision negotiation Mr. H. N. R. Rao, drew the attention of this court is the explanations to Section 115, C.P.C. wherein it is stated that in this Section the expression any case which has been decided including any order made, or any order deciding an issue, in the course of a suit or other proceeding. According to the learned counsel, the taking of the plaint on file is also not in accordance with the provisions of the Act and further, the interim injunction order will decide the issue. This Court has not accepted the said contention in the prior case referred to above and held that no revision or appeal arises against interim injunction which is not the one that falls under the category of any order made or any order deciding an issue. I do not find any merit in the said contention. This Court has not accepted the said contention in the prior case referred to above and held that no revision or appeal arises against interim injunction which is not the one that falls under the category of any order made or any order deciding an issue. I do not find any merit in the said contention. The learned counsel for the petitioner drew the attention of this Court to the unreported decision rendered by me on 18.6.1987 in M/s Rajak Industries Private Ltd. v. Britannia Industries Ltd. In C.R.P. Nos. 2736 to 2738 of 1897 wherein I have upheld the contention that even though the revision against interim order is not maintainable, the revision having been admitted by exercising the power under Section 115, C.P.C., it cannot be dismissed on that ground of maintainability again should have been disposed of only on merits relying on the decision reported in Official Receiver G.v. Seshayya (D.B.) (52 L.W. 810) and the decision of Ramanujam, J. in Vaishnav College for Women v. Thomas (1917- 1 MLJ 76) and also the decision of the Supreme Court in Bukumchand v. Madnava 1983 (1) Scale 707 , 1983 (2) UJ 421, 1983 AIR(SC) 540, 1984 (S) SCC 600, 1984 SSCC 600). In that view, the revision cannot be misplaced on the ground that it is not maintainable but it has to be decided on merits. 5. It is admitted by both parties that though on 11.5, 1989. Injunction was granted till 20.6.1989, subsequently on 20.6.1989, it was extended to 27.6, 1989, and in the mean-time this Court granted stay. Hence, there is no injunction in force. It has been only adjourned to 28.6.1989, for filing counter and as it there is no injunction order in force. According to the learned Counsel for the respondent, it is open to the petitioner to file his counter, put forth all the contentions, file the documents and invite a decision in the said, injunction application and the suit and the points, raised by the learned counsel cannot be decided in this revision. However the learned counsel for the petitioner urged these points. Even without considering the same according to the learned counsel, for the petitioner, the Court ought not to have granted injunction for 40 days as under, Order 349 Rules 3-A, C.P.C. the injunction application has to be decided within 30 days. However the learned counsel for the petitioner urged these points. Even without considering the same according to the learned counsel, for the petitioner, the Court ought not to have granted injunction for 40 days as under, Order 349 Rules 3-A, C.P.C. the injunction application has to be decided within 30 days. And on that ground alone, the order of the lower Court is not a valid one. On the other hand, the learned counsel for the respondent submitted that the vacation Court sits once a week, that the Court reopened after summer vacation only on 13.6.1989 and hence the injunction was granted till 20.6.1989 so as to enable the parties to agitate the same in regular Court .It is submitted that even on 20.6.1989 the petitioner did not file his counter and only opposed the grant of injunction. Instead of filing a counter and vacating the injunction, the petitioner and come to this Court on 23.6.1989 and obtained interim stay. The Court adjourned the injunction application from 20.6.1989 to 27.6.1989. The learned counsel submitted that the copies as required under order 39 rule 3, C.P.C. were not furnished and on that ground also injunction can not be granted, on the other hand, the learned counsel for the respondent submitted that all the documents were filled before the lower Court and that if they were not filed the injunction order will not be issued and that on the ground of not furnishing copies, it cannot be said that the order is not maintainable. It is open to the petitioner to file his counter on 20.6.1989 raising all his contentions and oppose the injunction application the learned counsel for the petitioner again submitted that the respondent has filed not suit for the same relief before the vacation Civil Judge, Ramnad at Madurai, and another suit for the same relief before the vacation Civil judge Tirunelvely, It was pointed out that no stay was granted in the suit filed before the vacation Civil judge Ramnad at Madurai, and subsequently the respondent withdrew the suit It was also pointed out that the suit filed in the vacation Civil Court Remand at madras is earlier in point of time and in this view the present suit is barred by limitation on the other hand, the learned counsel for the respondent drew the attention of this Court that for infringement of design, suit can be filed at every place where it has been bone and in the instant case both the suits were filed simultaneously on 10. 5. 1989. It was submitted that since injunction was granted in the suit filed before the vacation Civil Judge, Tirunelveli, the suit filed before the Civil Judge Ramnad at Madurai was withdrawn and that it is not correct to say that the suit filed before the vacation Civil Judge Ramnad at Madurai was earlier in point of time It is a matter to be agitated after service of summons in the suit It is not possible a decision at this stage prima facie, there is nothing to show that the suit which was withdrawn was filed earlier to the present suit . 6. Next it was contended by the learned counsel for the petitioner that the document on the basis of which injunction was granted was the Certificate of Registration of Design, that admittedly the certificate expired on 30-12-1988 and as such the order of injunction is not valid and proper order and that it has to be set aside. The learned counsel for the respondent submitted that even in the plaint it is averred that respondent has paid the renewal fee on 25.8. 1988 long before the expiration of the copyright on 30.12.1988 and awaited the renewal certificate. The learned counsel for the respondent produced a copy of the receipt issued by the Patent Office, Government of India, Calcutta. The learned counsel for the respondent submitted that even in the plaint it is averred that respondent has paid the renewal fee on 25.8. 1988 long before the expiration of the copyright on 30.12.1988 and awaited the renewal certificate. The learned counsel for the respondent produced a copy of the receipt issued by the Patent Office, Government of India, Calcutta. The question how far the said certificate is valid and admissible is also a matter to be decided by the court below after giving opportunity to both parties to adduce necessary evidence. The respondent has field the suit for the relief of permanent injunction restraining the petitioners herein from in any manner infringing the respondents registered design No 153931 referred as M.O. No. 1 and also for permanent injunction restraining the petitioners from in any manner passing off their container as and for the well established container of the respondent It was contended by the learned counsel for the revision petitioner, Mr. U.N. Rao, that the relief of passing off was not available to the case of design and that it is available only to the case of trade mark and that as per Section 2(5) of the Designs Act (Act 11 of 1911) design does not include any trade mark as defined in clause (v) of sub section (1) of section 2 of the Trade and Merchandise Marks Act, 1958, and the relief for piracy of registered design is dealt with in section 53 of he Designs Act, under Sub clause (2) of section 53 of Designs Act, the relief of passing off is not provided and only in the case of Trade and Merchandise marks, it is so provided and hence the relief of passing off is not maintainable under section 53 of the Designs Act. On the other hand the learned counsel for the respondent relied on the decision in Tobu Enterprises (P) Ltd. v. M/s Joginder Metal Works 1985 AIR(Delhi) 244) and submitted that even under section 53 (2) of the designs Act, action for passing off and for rendition of accounts can be made. In Tobu Enterprises P. Ltd v. M/s Joginder Metal Works 1985 AIR(Delhi) 244) it was held that "the provision of Section 53(2) of the Design cannot be read as to exclude any action for passing off and for rendition of accounts. In Tobu Enterprises P. Ltd v. M/s Joginder Metal Works 1985 AIR(Delhi) 244) it was held that "the provision of Section 53(2) of the Design cannot be read as to exclude any action for passing off and for rendition of accounts. A person complaining infringement of his design can certainly ask for accounts from the defendant to show the profits earned by the defendant by unlawfully using the design of the registered proprietor. The plaintiff might say that the profit earned by the defendant would be the loss sustained by him which he could claim as damages. A suit for permanent injunction restraining infringement of registered design and for rendition of accounts is therefore maintainable. It is a matter to be decided only in the suit after written statement is field and after considering the scope of various provisions of the Act, and this stage, in view of the above decision, prima facie it cannot be said that such a relief cannot be prayed in the case of piracy of registered design under Section 53 of the Design Act. 7. The learned counsel for the revision petitioner submitted that the District Court is not the competent court in which the suit under the Design Act for passing off action in the case of design should be field but it must be laid before the lowest grade of court having competent jurisdiction in view of section 9 and 15, Code of Civil Procedure. According to the learned counsel for the respondent, though the definition of court under section 2(6) of Designs Act, 1911 refers to District Court it has been omitted by virtue of the Patents Act (XXXIX of 1970) . Under section 2(e) of the Patents Act, the District Court has the meaning assigned to that expression by the Code of Civil Procedure, 1908 . Under section 54 of the Designs Act, the provisions of the Patents Act, 1978, with regard to certificates of the validity of a patent and to remedy in case of roundless threats of legal proceedings by a patentee shall apply. Under Section 104 of the Patents Act. It is provided that only the district court is having jurisdiction to try the suit for a declaration under section 105 or for any relief under section 106 or for infringement of a patent. Under Section 104 of the Patents Act. It is provided that only the district court is having jurisdiction to try the suit for a declaration under section 105 or for any relief under section 106 or for infringement of a patent. The learned counsel for the respondent relied on the decision reported in Abdur Rah Mian v. Rahim Bakhash 1940 AIR(Peshawar) 15 ) where a Division Bench of the said court held :" * The words 'the court in s. 53 (of the patents and Designs Act 1911) must refer to the District Court and therefore a suit under S.53 must be instituted in a District Court . 8. The learned counsel for the revision petitioner submitted that was a decision rendered prior to the coming into force of 1970 patents Act and that by virtue of the Patent Act, the definition of the District Court under section 2 (6) of the designs Act has been omitted and hence normally the lowest grade of court alone is having jurisdiction. It is also a matter to be decided in suit and at this stage, it is not possible to give any decision with regard to the jurisdiction of court to try the suit . 9. As regards the contention of the learned counsel for the respondent that the design of the respondent is a new or original design, it is a matter to be agitated in the suit . Prima facie, we do not have materials at this stage to hold that it is a new or original design . I do not wish to enter into the merits of the case, since this court is of the view that in the interest of justice, the parties should be directed to put forth their contentions before the District Judge so as to enable him to pass a reasoned order in the application for injunction field by the respondent, and for that purpose, necessary orders are to be passed in this regard. As already observed, there is no ad interim injunction in force into and the matter is posted to 20.8.1989 for filing counter before the District Judge. It is open to the petitioner herein to file a counter raising all the contentions and adduce necessary evidence and obtain orders on merits. 10. As already observed, there is no ad interim injunction in force into and the matter is posted to 20.8.1989 for filing counter before the District Judge. It is open to the petitioner herein to file a counter raising all the contentions and adduce necessary evidence and obtain orders on merits. 10. In the result, the civil revision petition is ordered as follows : The court below is directed to dispose of the injunction application I.A. No. 164 of 1989, on merits according to law within for weeks from the date of filing of the counter. The parties are at liberty to raise necessary pleas and adduce evidence. The parties are directed to maintain status quo which was prevailing prior to the filing of the injunction application till the disposal of the injunction application. However, in the circumstances of the case, there will be no order as to costs. Held that there being no ad interim injunction in force now and the matter being posted for hearing for filing counter before the District Judge, it is open to the petitioner to raise all the contentions and adduce necessary evidence for purpose of obtaining orders on merits and according the parties are directed to maintain status quo which was prevailing prior to the filing of injunction application till the disposal of the injunction application.