SACHDEVA METAL WORKS Vs. MODERN PAN INDUSTRIES

JUDGEMENT

(1.) In this application interesting question of law falls for consideration is as to what should be the interpretation of the word 'application' mentioned in Order 19 Rule 2 Civil Proceure Code ? Does the word 'application' comprehend all applications substantive as well as interlocutory ?

(2.) The relevants facts which have given rise to this application are that after framing of issues on 10th December, 1985 in the petition filed by M/s Sachdeva Metal Works against respondent M/s Modern Pan Industries for cancellation of Design No. 155075 of fans, coolers, grill etc, u/s 51-A of the Design Act, 1911, it was ordered by the Court that the controversy posed by these issues shall be resolved by the affidavits by way of evidence. It is apparent that both the parties did not object to the production of evidence by means of affidavits and as a matter of fact inconsequence of passing of this order, affidavits in form of evidence were filed by the parties. By the present application, the petitioner/applicant has stated that respondent have also filed the affidavit of Sardar Avtar Singh, alleged to be one of the partners of the respondents firm which is false and vague and lacks material particulars. Neither feature of the design which is alleged to have been invented by the respondent after years of research work been mentioned nor the particulars of any research have been furnished. Therefore, Sardar Avtar Singh, a partner of the respondent firm should be directed to appear in the Court for cross-examination.

(3.) The reply of the respondent is grounded on the allegation amongst other, that in fact the affidavit of the respondent discloses all material particulars. The respondent need not state the features of the impugned registered design as the certificate itself incorporate the same. Further since this application is not maintainable the petitioner has no right to cross- examine the respondent.