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Miscellaneous Appeal No. 2 of 1962, decided on 14th September 1962.
Temporary injunction pending suit‑Fact of recent regis tration or doubts about its validity not enough to refuse prayer Stare decisis ‑ Common law rule that defence of invali dity of registration can be raised without applying for cancellation or rectification‑Inapplicable to suits filed in Pakistan‑Case‑law fully discussed‑Patents and Designs Act (II of 1911), Ss. 47 (1), 53 & 51‑A.
Bourjois Ltd. v. British Home Stores Ltd. (1951) 68 R P C 280 ; Grafton v. Watson 51 L T 141 ; Smith v. Grigg Ltd. (1924) 1 K B 655 ; Marshall and the Lace Web Spring Co. Ltd. v. The Crown Beeding Co. Ltd. (1929) 46 R P C 267 ; British Insulated and Helsby
Cables Ltd. v. London Electric Wire Company and Smiths Ltd. 30 R P C 620 ; Werners Motors Ltd. v. Gamage Ltd. 21 R P C 621 ; Doble v. Spaendonk 27 R P C 440 ; Bahal Rai v. Sumer Chand (1903) I L R 25 All 493 ; Ram Sahai v. Angnoo A I R 1922 All. 496 ; Muhammad Abdul Karim v. Muhammad Yasin A I R 1934 All 798 ; Qadar Bakhsh v. Ghulam Muhammad A I R 1934 Lah. 709 ; Dwarkadas v. Chhotalal A I R 1941 Bom. 188 and Halsbury's "Laws of England" (II Ed.) Vol. 32 pp. 696‑697 footnote (r) ref.
Karachi Textile Works v. Multan Handloom Factory P L D 1955 Kar. 351 dissented from.
Doctrine has limited application in Pakistan.
Crawford: "Statutory Construction," p. 285 ref.
A. K. Lakhani for Appellants.
Tanzilur Rahman for Respondent.
Dr. 1. Mahmood : Amicus curiae.
Dates of hearing : 9th, 15th and 18th August, 1962.
This is an appeal against the order of the District Judge, Lahore, dated the 13th of July 1961, by which he issued a temporary injunction restraining the defendant, its servants, agents and employees from using on textile goods the design which was registered on the application of the plaintiff under section 43 of the Patents and Designs Act (II of 1911.) The learned Judge did not restrain the defendant (now appellant) from selling the goods that were in stock, but directed an inventory of the stock, to be pre pared and to maintain and submit accounts of sales of the stock. The defendant has come in appeal at Karachi because the suit has been transferred from Lahore to Hyderabad.
2. Samples of the registered and infringing designs are not on this record, but they have been described in the order of the District Judge, Lahore, as follows
"The registered design comprises a red rose with stem con taining leaves in black together with fern in green. The infring ing design (Annexure B') also comprises red rose with stem containing leaves in green together with fern in black."
It is not necessary to compare them because counsel for the appel lant has conceded that there was a marked similarity between the two designs and that, for the purpose of this appeal, the design used by the appellant could be taken to be an imitation of the registered design of the respondent ; but has supported the appeal on the following three grounds
(i) The balance of convenience is in favour of the appellant.
(ii) The registered design is not new or original.
(iii) The design was registered recently.
3. It is necessary to state a few facts and to set out a few considerations for appreciating the last contention. Counsel for the parties agreed that the design was registered on the 26th of January, 1960; that the infringing design was found on the textile goods manufactured by, the appellant which were on sale on the 10th of May 1961 ; and that the suit from which this appeal has arisen was instituted by the respondent at Lahore on the 15th of May 1961. This means that infringement took place about one year and five months after the registration of the design. Counsel .for the parties did not agree as to whether this period of time made the registration old or not, but I do not attach importance to this disagreement because in my view, as explained hereafter, the element of time is statutorily irrelevant. Moreover, from the purely commercial point of view the value of a design is greater in its early period of novelty than in the residuary period of its use when the initial impact of its novelty on the market has disappeared‑see Boutjois Ltd. v. British Home Stores Ltd. ((1951) 68 R P C 280). A recently registered design thus needs to be protected no less jealousy than a design which has a longer standing in the market. There is one more consideration to be kept in mind. It is that the first period of time for which copy‑right is created, in virtue of the registration of a design, is only five years. It can be extended for another five years at the option of the proprietor after which it may or may not be extended for a further period of full five years. These short spans of time are provided by section 47 of the Act and serve as a guide to the appreciation of the value of each single year in which copy‑right subsists.
4. I heard counsel for the parties on the 9th of August 1962 and reserved judgment. When I studied the legal questions that were raised before me for writing judgment it became clear that two legal questions of general importance were involved for decision. I, therefore, issued notices to counsel for the parties and to Dr. Mahmood requesting him to appear amicus curiae. He has complied with my request and addressed well‑considered arguments, for which I am thankful to him. The two questions which were discussed by him and counsel for the appellant after the notices are as follows
(a) Whether the validity of registration can be' questioned in the proceedings in which it is sought t6 be enforced'
(b) Whether an injunction should not be granted if the registration of a design is recent
5. I may, in the first place, dispose of the simplest of the three contentions raised by the appellant's counsel (set out in paragraph 2 above). It relates to the balance of convenience between the parties with due regard to the provisions of Order XXXIX, rule 2, C. P. C. Counsel for the appellant argued that the loss, if any, sustained by the respondent owing to infringement could be satisfactorily assessed if an account of sales was kept by the appellant. There was thus no risk of irreparable harm being done to the respondent if an order of injunction was not issued. As against this, according to counsel, the appellant was likely to suffer irreparable damage because the amount of loss that could be sustained by it could not be correctly assessed. The assessment could not be made because the volume of sale of the appellant's goods during the period of time in which the appellant is res trained from using the design on fresh goods, could not be satis factorily calculated. The argument sounds forceful if an impor tant aspect of the matter is not kept in view, which aspect is that infringement of a design with impunity by a trader is likely to breed the tendency in him to repeat the act and among other traders to follow suit. This aspect was emphasised by Baggallay, L. J. who granted interim injunction, in Grafton v. Watson (51 L T 141 at p. 144), in the following words
"Who can best be compensated for any injury sustained if at the hearing it is decided that they are in the right As regards the plaintiffs, it is obvious that not only the defendants, but others, could or might interfere, if this injunction were dissolved, with what is their registered design."
The main consideration, therefore, should be as to whether the plaintiff has a good prima facie case or not, because, if he has a good case, then inconvenience to the defendant resulting from a true legal situation will not by themselves be a sufficient ground for refusing to grant interim relief to the plaintiff.
6. The appellant's counsel does not consider the respondent's case to be prima facie a good case because only a "new or original" design can be registered under section 43 of the Patents and Designs Act (II of 1911), but the design of the respondent is not new nor original, and its registration has been secured "through misrepresentation of material facts". This argument raised the two issues (set out in paragraph 4 above) which were argued after notices to counsel for the parties and Dr. Mahmood. I now proceed to examine them.
7. The assertion made by counsel for the appellant that the design is not new or original was made before the trial Court also, but no instance of the use of the design previous to its registration was brought to the notice of that Court. Since the order of that Court another year has passed, yet counsel was not able to refer to any such instance as prima facie evidence to support his assertion. This absence of supporting facts did not, however, according to counsel, make any difference for refusing interim injunction because his further stand was that it was enough for defeating an application for temporary injunc tion to merely dispute the newness or originality of a design. In support of this contention counsel relied on Smith v. Grigg Ltd. ((1924) 1 K B 655). It is a well known appellate judgment which was delivered by Scrutton and Atkin, L. JJ. It does not lay down that raising a dispute as to the validity of a registered design is enough to defeat an application for interim injunction but I would not dwell on this aspect because there are other English judgments in which such a view was taken. One of such judgments is Marshall & the Lace Web Spring Co. Ltd. v. The Crown Reeding Co. Ltd. ((1929) 46 R P C 267). The judgment cited by counsel is important because it has been cited over and over again in England, India and Pakistan, and also supports the proposition that an injunction should not be granted when a design is recent. It is, therefore, necessary to appreciate its reasoning well.
8. Scrutton, L. J. has explained in it the reason which has induced the England Courts not to issue temporary injunctions to prevent the infringement of a registered design when it is recent and when there is a substantial doubt as to its validity. These are the principles which apply in England to patents. The learned Judge has pointed out that there was no case before him in which the principles applicable to patents were expressly applied to designs but patents and designs were considered by the learned Judge to involve the same principle because of the following prac tice of the English Courts
"The Court leans against monopolies ; where you find an old established monopoly, which has been in existence for years without being challenged, there is no reason for the Court to lean too hardly against it ; but where you find a claim to a monopoly which is of recent origin, and which there has not been time to challenge, the Court is inclined to take the view that, in the absence of special circumstances, the monopoly must be established by a judicial decision before it can interfere by way of interlocutory injunction. It is not a universal rule ; there may be facts which will lead the Court in a particular case to depart from it, but as a general rule that is the practice of the Court. So far as I know there is no case which expressly states that the rule so applied to monopolies in patents is also applicable to monopolies in designs, but when one sees the reasons on which the rules as to patents is based it appears equally to apply to the comparatively less important monopoly in designs."
These considerations appeared to be weak for defeating statutory protection ; therefore, counsel who appeared in that case, argued that under the special provisions of the Patents and Designs Act, designs do not stand on precisely the same footing as patents, and that when once you have a design on the regis ter its validity cannot be disputed so long as it remains there ; that is to say, that until it is expunged there is no question to be tried."
His contention is remarkably well suited to the circumstances of the case now before me because the design which is in dispute is a registered one, because under section 47(1) of our Act registration of a design creates copy‑right which is protected by section 53(1) of the Act "during the existence of copy‑right". In the presence of these statutory provisions it is difficult to see how the length of time in which registration may exist, or mere doubts, whether substantial or otherwise, as to its validity which may be A entertained can be given weight for not protecting copy‑right in a registered design, irrespective of whether the protection that is needed is temporary or otherwise. Section 53(1) is categorical when it says that "during the existence of copy‑right in any design it shall not be lawful for any person" other than the registered proprietor to use it for the purpose of selling his goods. This right is created by section 47(1) in favour of the registered proprietor of a design, as follows
"When a design is registered, the registered proprietor of the design shall, subject to the provisions of this Act, have copy right in the design during five years from the date of registra tion."
The words "subject to the provisions of this Act," which occur in the above provision, have been emphasised by counsel for the appellants in this case to support the contention that registration is not a conclusive proof of a design's validity. This is a mis directed argument which I shall examine a little later. Here I may add that Scrutton, L, J. declined to uphold the argument that was advanced by counsel who appeared before him mainly on the ground that there was a difference in common law between the considerations that apply to the final decision of a claim for copy right and the considerations that apply to the decision of an appli cation for interim injunction to protect that right temporarily. He has observed as follows
"No doubt that (the argument of counsel) raises a serious question, which will have to be considered on the wording of these Acts, but I do not think that it is sufficient to justify us in departing from the general rules as to inter‑locutory injunctions in actions for infringement of a monopoly."
It is clear from the above observations of the learned Judge that he leaned against monopoly because that was a long standing practice in common law. Perhaps it will not be out of place to state that this trend of thought has for its justification the general character of corpus juris of England where in Spite of the enact ment of laws the general foundation of law remains to be the judge made law and for purposes of deciding interlocutory matters, which are governed by civil procedure, that law governs the proceedings though statutory provisions are finally enforced. This distinction does not seem to be warranted by the character of corpus juris of this country. I do not think that I can assume jurisdiction, on considerations of the practice in common law that prevailed in England, to disregard the mandatory effect of a statutory provision and to decline to enforce copy‑right because of an inclination to lean against monopoly. The absence of this jurisdiction has been rightly emphasised in Article 130 of the Constitution as follows
"No Court shall have any jurisdiction that is not conferred on it by this Constitution or by or under the law."
With the greatest of respect, therefore, I have to leave aside the reasoning of Smith v. Grigg Ltd. and to try and find out the course of action that should be followed in view of the statutory provisions contained in the Patents and Designs Act of 1911 which is in force in our country.
9. Before discussing those provisions I may make another explanatory digression and point out that the procedure adopted in Smith v. Grigg Ltd. in 1924, of considering objec tions to the validity of a registered design as a defence to the action that was brought by the proprietor of the design without an application for the rectification of the register of designs, does not represent the true legal situation that prevailed in common law upto 1939. It is not necessary to examine the precedents and to analyse them, because this has been done in footnote (r) at pages 696‑97 of Volume 32 of Halsbury's Laws of England (II Ed.), and the result has been summarised at page 682, as follows
" . . . ‑. it is doubtful whether validity of a design can be challenged by any other method,"
than by an application to rectify the register of designs. In England, objections to the validity of registered designs have been considered in suits which were brought for infringement of the designs by those Courts which had the jurisdiction to try such suits as well as to decide applications for rectification of the register of designs. This being the situation, absence of an application for rectification of the register was a defect of formality only. In British Insulated and Helsby Cables Ltd. v. London Electric Wire Company and Smiths Ltd. (30 R P C 620), the Vice‑Chancellor of the County Palatine of Lancaster declined to allow amendment of the defence by raising the objection that the design of the plaintiff was not novel. After citing two judgments, namely Werners Motors Ltd. v. Gamage Ltd. (21 R P C 621 ; L R (1904) 2 Ch. 580), and Doble v.. Spaendonk (27 R P C 440), in which doubt had been expressed as to the validity of the procedure of allowing such an objection in the absence of an application for rectification of the register, the Vice‑Chancellor rejected the request for amendment on the ground that he had no power to rectify the register. He posed to. himself the following question
"In that state of things (i.e. absence of the power to rectify) ought to do indirectly what I cannot do directly "
And answered it in the negative. I should note that in the case that is before me, the trial Court had no jurisdiction to either order rectification of the register or to order cancellation of regis tration, because under section 64 of our Act, the power of rectifi cation is given to the Controller, and under section 51‑A, the power of cancellation is conferred on the High Court. The trial Court was thus not competent to give relief by either ordering rectification or cancellation. The English precedents, therefore, in which the defence of invalidity was allowed to be raised without applications for rectification or cancellation are inapplicable to suits which are filed in our country, excepting for‑ and that too in a restricted sense only‑to those suits which may be filed on the original side of the High Court.
10. Reverting now to our Act, I refer to section 53 (1), and section 47(1) to which reference has already been made (in para graph 8) above. The effect of these provisions is that on the registration of a design the registered proprietor of the ,design acquires copy‑right for five years and during the existence of this copy/right it is not lawful for any person other than the registered proprietor to use the registered design except in the circumstances specified in section 53 (1). Subsection (2) of section 53 lays down as follows
"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 five hundred 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 sutra recoverable in respect of any one design under clause (a) shall not exceed one thousand rupees."
The effect of clause (b) of the above provision is that infringement of a registered design is to be prevented by an order of injunction.
11. Counsel for the appellant questioned the correctness of these conclusions and laid emphasis, as mentioned above, on the word "subject to the provisions of this Act" which occur in section 47(1) in order to argue that registration of a design is not conclusive evidence of its validity because of the following two provisions of the Act
Section 46.‑"(3) The register of designs shall be prima facie evidence of any matters by this Act directed or authorized to be entered therein.
Section 71."A certificate purporting to be under the hand of the Controller as to any entry, matter or thing which he is authorized by this Act, or any rules made there under, to make or do shall be prima facie evidence of the entry having been made, and of the contents thereof, and of the matter or thing having been done or left undone."
These provisions should be carefully noted, because one of them (subsection 3 of section 46) has been used in more judgments than one to support the view that the validity of a design can be ques tioned as a defence without snaking an application (under section 64) for rectification of the register of designs or for cancellation (under section 51‑A) of registration. But the effect of section 46(3) is simply that the contents of the register are prima facie proof of any matter directed or authorised by or under the Act to be entered in it. It dispenses with the proof of its contents. The effect of section 71 is simply that a certificate issued by the Con troller under his hand and showing that any matter required by law to be entered in the register of designs has or has not been so entered, shall be prima facie evidence that such an entry was or was not made. This is meant to dispense with the production of the register of designs to prove its contents. These two provi sions were necessary for removing doubts regarding the weight of the two pieces of evidence and thus for making the procedure of rectification and cancellation simpler because designs are not registered under section 43(l) of the Act after full enquiry. The forum for the proceedings of rectification and cancellation, how ever, remain under the Act to be the Controller and the High Court. This aspect of the legal situation is brought out with clarity and emphasis by section 47(l) read with section 53(1) under which it is not lawful for any person other than the regis tered proprietor, during the existence of a copy‑right created by the registration of a design, to use such a design for selling an article. The prohibition exists so long as the copy‑right subsists. This prohibition can be obviated by rectification of the register or cancellation of registration but a declaratory order, judgment or decree of a Court, which does pot rectify the register of designs or cancel registration cannot remove or curtail the prohibition. It will be ineffective in terms of section 43(1) read with section 53(1).
12. Moreover, since the Act has created copy‑right in designs and contains provisions for rectification and cancellation these functions can be performed in accordance with those provisions only. This is perhaps an obvious proposition, because when a right or liability is created by a statute which also provides a special remedy for enforcing it, the remedy, provided by that statute must be followed. The Controller and the High Court are Special Tribunals appointed by the Act to determine the questions of rectification and cancellation ; therefore, these function cannot be discharged by Civil Courts as such. If support were needed for this view, reference could be made to the commentary by Mulla on section 9 C. P. C. (12th Edition of 1953) page 32, and Maxwell on Interpretation of Statutes (10th Edition of 1952) at page 129.
13. The conclusion which follows from the preceding paragraphs is that the inconclusive character of the evidence that is provided by a certificate issued by the Controller and by the entries that are made in the register does not weaken the prohibi tion against infringement and does not confer jurisdiction on Tribunals other than the Controller and the High Court to rectify the register of designs or to cancel registration.
14. This view, however, is not supported by judgments delivered in India and Pakistan. The doubt that existed in England (See paragraph 9 above) regarding the correctness of the procedure of questioning the validity of a design in an action for its infringement has been removed by an amendment made in 1950 in the Rules of the Supreme Court. Now under Order LIII (f), rule 3 of the Rules of the Supreme Court, the defendant may in such an action counter‑claim rectification of the register, whereupon notice is given to the Controller‑General of the Patents, Designs and Trade Marks to participate in the proceed ings. There is no such provision in Pakistan. Moreover, there is no judgment of India or Pakistan in which the effect of section 51‑A (cancellation of registration) and 64 (rectification of register) read with section 47(1) (copy‑right on registration) and 53 (piracy of registered design) of the Act on the propriety of raising the defence of the invalidity of a design in a suit for infringement has been considered, though prima facie character of the evidence provided by a certificate and by the entries of the register of designs as well as novelty of design have been commented upon in the light of sections 46(3) and 43(1) of the Act to draw the conclusion that registration of a design is not a final proof of the validity of such a design. This reasoning does not clinch the argument.
15. There are only a few reported decisions of India and Pakistan which are directly relevant to the two issues that are now under consideration. The earliest of these judgments is Bahal Rai v. Sumer Chand ((1903) I L R 25 All. 493), in which the defence of invalidity of the design was allowed in an action for infringement without any objection to or discussion of its propriety. That was a suit under Inventions and Designs Act (V of 1888.) The second judg ment is Ram Sahai v. Angoo (A I R 1922 All. 496), which was delivered after the present Act come into force in 1911. In it the defence was similarly allowed and another Division Bench of the Allahabad High Court held on the basis of section 43 of the Act that
"no registration is effective, unless the design or configura tion, sought to be protected, is new and original and not of a pre‑existing common type."
No reference was made to any other section.
16. The third judgment is again of Allahabad, Muhammad Abdul Karim v. Muhammad Yasin (A I R 1934 All. 798). In this appeal the main argument was that registration could not be questioned in a suit for enforcing copyright. Sections 29, 46, 47, 53 and 64 were con sidered but the suit had been brought‑
"on the ground that be (the plaintiff) was in possession of a certificate granted by the Controller."
Therefore, this ground largely remained in view and the conclu sion on the basis of section 46(3) was that ,
" . . . there is not under the Act conclusive proof of the entry that the plaintiff is the proprietor of the design, but there is prima facie evidence that he is the proprietor."
Bholal Rai's case was followed because the learned Judges saw "no reason to differ from that ruling". Rectification of the register of designs by the Controller under section 6 4 of the Act was not considered to be the only remedy but no contention had been raised that the Controller and the High Court were special Tribunals appointed under the Act which was a self‑sufficient legislation or that 'a mere declaration was ineffective against the protection granted by section 53 of the Act.
17. The fourth judgment is Qadar Bakhsh v.. Ghulam Muhammad (A I R 1934 Lah. 709), in which the precedent of Ram Sahai's case was implicitly followed.
18. The fifth judgment is Dwarkadas v. Chhotalal (A I R 1941 Bom. 188), which was decided on the basis of the prima facie nature of the register of designs in terms of section 46(3). References were made to sections 20, 29, 51‑A, 53 and 64 but the main considerations which influenced the decision were as follows
"But what is really significant is that the Legislature has not definitely provided anywhere in the Act that the certificate of registration until cancellation is conclusive proof of the fact . that the grantee of the certificate is the proprietor of the design, that is to say, the proprietor of a new or original design. I do not think that the Legislature would have left such an important point merely for inference. Nor is it provided in the Act that the only remedy of an aggrieved party is under section 51‑A and section 64 of the Act, and that if no such application is made the aggrieved party cannot urge his ground of defence in a suit brought by the registered proprietor under section 53 (2) of the Act. My attention was drawn to the observations of Halsbury, Hailsham's Ed., Vol. XXXII, p. 696, para. 1006, in which it is stated that it seems to be doubtful whether the validity of the registration can properly be raised by way of defence in a suit for infringement of a design, and whether it should not rather be sought by means of a motion for rectification of the register."
The doubt was resolved by following the decision in Muhammad Abdul Karim's case. No argument was addressed that the jurisdiction of the Civil Courts was impliedly ousted by the crea tion of a new right, namely copyright in designs and that there were special Tribunals to protect it nor was it brought to the notice of the learned Court that inconclusive character of the register of designs and of a certificate issued by the Controller did not effect the forum of proceedings. If this was brought to the notice of the Court then the conclusion. might have been that there was no need for making a provision in the Act that a "cer tificate until cancelled is conclusive."
19. The last judgment that has been brought to my notice is Karachi Textile Works v. Multan Handloom Factory (PLD 1955 Kar. 351). In this judgment the provisions of the Act are not discussed because the argument apparently was that the questions involved in the appeal were fully covered by authority. Almost all the judgments to which reference has been made above as well as Halsbury's Laws of England were cited and the judgment proceeded on their con sideration as follows
"When I heard Mr. Farooqi, the learned Advocate for the plaintiff, I was inclined to make my interim order absolute ; but on consideration of authorities bearing on the question of interim injunction .(in) matters of infringement of designs, I have come to the conclusion that I would withdraw my interim order on certain conditions which the learned Advocate Mr. Ibadat Yar Khan, had accepted."
With this background of the argument the‑ result, as could be expected, was the following main conclusion
"It is however not necessary for me at this stage to say more than this, that having regard to the principle of Stare Decisis, I do not see any reason to give any other interpretation than that which has been given by the Courts in this sub‑continent for about fifty years."
On this conclusion the decision was that‑'
(i) validity of a registered design may be questioned by way of defence in a suit for its infringement ;
(ii) the same considerations are applicable to applications for temporary injunction in suits for infringement of designs as are applicable to such applications in suits for infringement of patents. Those considerations are that‑
(a) an interlocutory injunction is not granted if the design is recent; and
(b) there is substantial doubt as to its validity.
20. The principle of Stare Decisis is a greatly valuable doctrine of common law. It means that the Courts should stand by precedents and should not disturb them. Without this prin ciple common law could not exist, but its place in a system of law, like ours, where the main body of the law, excepting for personal law, consists of statutes, is very limited. The main task of lawyers and Judges in such a system as ours is to discover the purport of the statutes and to apply it to the facts of each case. They have to analyse statutory provisions to understand and accurately construe them and to examine the structure of the statutes in which the provisions occur to correctly interpret them. The principle of Stare Decisis comes into play with reference to statutes as a rule of wisdom and prudence when statutory provi sions have been interpreted and construed by Judges in the same manner for a very long time and the interpretation has affected the conduct of a large portion of the society, provided that the decisions have neither violated the letter and spirit of statutory provisions nor are clearly erroneous or patently unreasonable. The proper position of precedent in statutory construction has been set forth in the following quotation reproduced by Crawford in his book on Statutory Construction at page 285
"It is a mistake to treat statutory construction like other branches of the common law, as a body of doctrine to be gathered from particular precedents and judicial utterances ; the only proper method of approaching the problem is the inductive one; gathering from the mass of decisions certain tendencies and seeking to determine whether some of these tendencies arc strong enough to impose themselves upon Courts by reason of inherent fitness and necessity."
21. I have strived earlier in this judgment to explain that the trend of common law to weaken monopoly cannot guide us because the intendment of our Act is that copyright in a registered design is to be protected so long as the register of designs is not rectified to the contrary purpose or registration is not cancelled after following the procedure that is laid down for this purpose in the Act itself. Thus following the letter and spirit of the statute (Act II of 1911) and holding that the respondent has a good prima facie case. I dismiss the appeal with costs.
K. B. A.
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