Shiv Narayan Dhingra, J.
1. The above two applications have been made by the plaintiffs under Section 22(4) of Designs Act and under Section 151 CPC with a prayer that the Court should stay the proceedings pending before the Controller of Design for cancellation of the designs of the plaintiffs initiated at the behest of defendants and also that these proceedings should be transferred before this Court and this Court should hear the proceedings of the cancellation of designs.
2. It is submitted by the plaintiffs that plaintiffs filed a suit for permanent injunction against the defendants alleging infringement of its design nos. 184136 and 184137. The defendant No. 3 in its written statement took defenses as available under Section 19 of the Designs Act. The defendant No. 3 also initiated cancellation proceedings before the learned Controller of Designs against the design nos. 184136 and 184137 in respect of an insecticidal coil and the Controller of Designs framed an issue to the following effect:
2. Are design No. 184136 and 184137 liable to cancellation under Section 19 of The Design Act, 1911 ? OPD ?
3. It is stated that the Controller of Designs proceeded with the proceedings and the proceedings were at last stage. Arguments of both the sides have been heard and orders have been reserved. The plaintiff had also made an application before the Controller for staying the proceedings but Controller did not stay the proceedings finding no merits in the application. He also turned down the request of transferring the proceedings to High Court observing that the High Court had not issued any direction directing him to transfer the proceedings to it.
4. Counsel for the plaintiffs argued that Section 22(4) of the Designs Act provides that whrerein the ground as available under Section 19 of Designs Act are taken as a defense, the suit or such other proceedings shall be transferred to High Court for decision. He states in view of the Section 22(4), Page 0247 the proceedings before the Controller be transferred to High Court and the proceedings be stayed.
5. In reply to the application, it is submitted by the defendants that the plaintiffs can not invoke the jurisdiction of this Court under Section 22(4) of Designs Act as the same was not applicable and the appropriate authority to determine the validity of designs in question was the Controller. The plaintiffs were aware that designs got registered by them were already published and were liable to be cancelled on the ground of prior publication.
6. Section 22 of the Designs Act under which the plaintiffs have sought transfer of proceedings before the Controller to this Court reads as under:
22. Piracy of registered design ' (1) During the existence of copyright in any design it shall not be lawful for any person-
(a) for the purpose of sale to apply or cause to be applied to any article in any class of articles in which the design is registered, the design or any fraudulent or obvious imitation thereof, except with the license or written consent of the registered proprietor, or to do anything with a view to enable the design to be so applied: or
(b) to import for the purposes of sale, without the consent of the registered proprietor, any article belonging to the class in which the design has been registered, and having applied to it the design or any fraudulent or obvious imitation thereof; or
(c) knowing that the design or any fraudulent or obvious imitation thereof has been applied to any article in any class of articles in which the design is registered without the consent of the registered proprietor, to publish or expose or cause to be published or exposed for sale that article.
(2) If any person acts in contravention of this section, he shall be liable for every contravention -
(a) to pay to the registered proprietor of the design a sum not exceeding twenty-five thousand rupees recoverable as a contract debt, or
(b) if the proprietor elects to bring a suit for the recovery of damages for any such contravention, and for an injunction against the repetition thereof, to pay such damages as may be awarded and to be restrained by injunction accordingly'
Provided that the total sum recoverable in respect of any one design under Clause (a) shall not exceed fifty thousand rupees'
Provided further that no suit or any other proceeding for relief under this sub-section shall be instituted in any court below the court of District Judge.
(3) In any suit or any other proceeding for relief under Sub-section (2), every ground on which the registration of a design may be cancelled under Section 19 shall be available as a ground of defense.
(4) Notwithstanding anything contained in the second proviso to Sub-section (2), where any ground on which the registration of a design may be cancelled under Section 19 has been availed of as a ground of defense and Sub-section (3) in any suit or other proceedings for relief under Page 0248 Sub-section (2), the suit or such other proceeding shall be transferred by the court, in which the suit or such other proceeding is pending, to the High Court for decision.
(5) When the court makes a decree in a suit under Sub-section (2), it shall send a copy of the decree to the Controller, who shall cause an entry thereof to be made in the register of designs.
7. There is no provision under Section 22 for transferring proceedings pending before the Controller to the High Court. Section 22 (2) provides that a suit or any other proceedings for relief under Sub section 22(2) can be instituted in a Court not below the Court of District Judge. Section 22(3) provides that in proceedings under Section 22(2), the defendant is free to take all such defenses as are available to him for cancellation of registration of design under Section 19 of the Act. These defenses can be taken by the defendant in the suit filed by a party before the District Judge under Section 22(2). Section 22(4) provides that where grounds as available under Section 19 are taken as ground of defense, then in such case, suit or other proceedings shall be transferred by the Court in which the suit or other proceedings are pending to the High Court for decision. It is obvious that the Section has not taken into its ambit the proceedings pending before the Controller under Section 19 of the Act. If the Legislature wanted that proceedings under Section 19 of the Act pending before the Controller were also to be transferred to the High Court, nothing prevented Legislature from making such a provision. The Legislature in that case would have provided that where a suit is pending before the High Court and a defense is taken under Section 19 of the Act, the proceedings of cancellation of designs pending before the Controller shall stand transferred to the High Court. But that was not the intention of Legislature. Instead Legislature provided that if in suit or proceedings filed before the District Court a defense for cancellation of the designs is taken then the proceedings/suit pending before the District Court shall be transferred to the High Court. There is a reason behind it. The High Court is a Court of Appeal against the orders of the Controller. Since High Court is the Court of Appeal for deciding whether a design was rightly cancelled by the Controller, the Legislature thought it proper that the issue of cancellation of designs pending before the District Court should be decided by the High Court.
8. In Trade Mark Act, 1958, Section 107 provided that where a suit for infringement of registered trade mark is made and the validity of registration of plaintiff's trade mark is questioned by the defendant and the defendant raises a defense as available under Section 30(1)(d) of the Act questioning the validity of registration, then an application for rectification of register shall be made to the High Court. Sub Section 2 provides that where an application for rectification of register of trade mark is made to Registrar under Section 46 or Section 47(4) or Section 56, the Registrar may refer the application at any stage to the High Court. Thus, wherever Legislature intended that the application pending before the Registrar/Controller shall be transferred to the High Court, if in a pending suit a similar issue is raised, the Legislature categorically provided that such proceedings or application shall be transferred to the High Court. In Trade mark Act, 1958, High Court had jurisdiction to entertain the applications for rectification of register but under Designs Act, High Court had no jurisdiction to entertain the application Page 0249 for rectification of register. In Trade Mark Act, 1999, this power has not been conferred on the High Court i.e. to entertain the applications for rectification of register and corresponding changes were made in the Act.
9. I consider that the plaintiffs cannot take support of Section 22(4) for staying the proceedings pending before the Controller or for withdrawal of proceedings from the Controller to the High Court. Neither there is a provision of staying of proceedings before Controller as was available under Section 111 of old Trade Mark Act.
10. The proceedings before the Controller are continuing for almost 3 years and are at final stage. While the proceedings before this Court are only at the stage of plaintiff's evidence and the evidence of the plaintiff's is yet to be recorded. The applicant would not be remediless if the order goes against the applicant as there is provision for appeal under the Act against the order of Controller. It is settled law that the provisions of statute must be interpreted to reflect its natural meaning and the interpretation should not be to stretch or to insert words or to enhance its scope. Intention of the Legislature is very clear in this case.
11. I do not find any provision under the Act to stay the proceedings before the Controller or to withdraw the proceedings from Controller to this Court. Neither I consider it appropriate to take away the powers of Controller of deciding the proceedings before it.
12. The applications are hereby dismissed.