1980 PLP 396 (CLC)

The purport of the evidence of Abdul Karim, P. W. 2, Muhammad Akram. P. W. 3, Muhammad Younis P. W. 5 and Muhammad lqbal P. W. 6 about conciliation is that some amount was settled to be paid. P. W. 2 and P. W. 3 stated that the amount was R. 8,

000. P. W. 5 and P. W. 6, on the other hand, stated that the amount was Rs. 8,500 P: W. 2 stated that Abdul Aziz had agreed to pay this amount since the demand of Fazal Karim was that he should not prepare the machine. P. W. 3. on the other hand, stated that the suggestion of intervener or mediator was that Abdul Aziz should be paid a sum of Rs. 8,000 and he should part with the machine. Same is the purport of the statements of P. W. 5 and P. W.

6. P. W. 5 stated that no School Teacher attended the compromise talk but it is proved by the evidence of P. W. 3 and P. W. 8 that P. W 3 is a School Teacher. The evidence of these witnesses is self contradictory. Apart from that it is also of no value since all the witnesses are agreed that the compromise talk broke down and these suggestions were not acceptable to the defendant. The defendant admits in his evidence about the compromise talk but since admittedly the conciliation talk was futile, nothing turns upon this evidence. P. W. 2, who stated that the machine of Abdul Karim was prepared in 1960 while a similar machine by Abdul Aziz was prepared in 1968, claimed to have seen both the machines. According to him, the machine of the plaintiff was 25 to 30 maunds in weight while the machine of Abdul Aziz is heavier being 35 to 40 maunds in weight. He further said that the n7achinc of the plaintiff was run by a five horse power engine but he did not know anything about the power of the engine used for running the machine of Abdul Aziz. 1n fact he had not seen the machine of Abdul Aziz working. According to this witness. Muhammad Siddique had invent ed the machine, although, as will be seen, the case of the plaintiff is that the inventor was Fazal Karim his father. He also stated that the machine of Muhammad Siddique makes 12 holes at the most in one stroke but he could not say how many holes are made in a single stroke by the machine of Abdul Aziz. He conjectured that the number may be the same. When asked whether electric energy was consumed or the machine of the plaintiff was driven by a belt on the pully, he said that it was driven by a belt on the pully. He did not say that it consumed the electric energy. Though he had stressed that he had not seen the machine of Abdul Aziz functioning. but in an answer to a question whether the metal sheet moves to and from or the slide which punches the holes moves he said that it was the metal sheet which moved to and fro. He then stated that he ,lid not know whether in the machine of Muhammad Siddique the metal sheet remained stationary and it was the slide which moved to punch the holes in it. He admitted that the parties did not deal in machines but only prepared the perforated material which is purchased by the customers. He further admitted that he was involved in a theft case but he denied that he was released through the intervention of Muhammad Siddique. When asked how many years have elapsed since 1960, he said on the 24th May, 1976, that twelve or thirteen years had elapsed. This witness does not appear to have any knowledge how the machines of the parties function. He claims to have seen both the machines and states that one is an imitation of the other and yet he could not say whether in the machine of Muhammad Siddique the metal sheet remained Stationary and it was the slide which moved to punch the holes in it, although the plaintiff's case is that the slide does not move in this manner ; it is the table which moves. He has fixed the preparation of both the machines but no reliance can be placed upon this part of which since he is illiterate and could not correctly give the time which elapsed since 1960. He is the brother of Fazal Karim, as stated by P. W.

8. No reliance can be placed upon his evidence. As stated earlier, P- W. 3 Muhammad Akram had seen the machine of Haji Fazal Karim only though he gave an affidavit in support of the plaintiff regarding the dates of manufacture of both the machines. Similarly, P. W. 5, who has given a similar affidavit, confined his state ment only to the conciliation proceedings. P. W. 6 Muhammad Iqbal, who sells locks and does not claim to have any knowledge of machinery in cross. examination stated that the machine was invented by Fazal Karim about 15 years ago. According to him, before this machine was invented the metal sheets were punched either by hand or by machines worked by hand (hand press). He had never seen the machine of the same type as that of Fazal Karim. This witness and P. W. 3 hail from the same Mohallah as the plaintiff. The evidence is clearly interested and cannot be relied upon. Moreover. the evidence of Muhammad lqbal who is a vendor of locks is of no value on the question of invention. P. W. 4 is the Controller of Patents and Design; who has granted the patent. It is unnecessary to refer to his statement in any, detail since it appears that no investigation worth the name was carried on in his office to determine whether the plaintiff was an inventor in the sense that he was the first inventor and whether the patented machine of the plaintiff had already been invented and was well known in the world including Pakistan. It appears that the office of the witness did not even have the machinery's Encyclopedia from which Dr. Uppal also had copiously copied in his report. The witnesses stated that if an invention is well known in foreign countries but is not published in Pakistan, its imitation in this country whether good or poor would still be called an invention. 1 am certain that if he had seen the above book which was published several decades before the manufacture of the plaintiff's machine or had investigat ed the machines used by the other manufacturers of perforated material in Pakistan he would not have called the plaintiff's machine an invention. His evidence is also rendered of little value by the admission of the plaintiff in his plaint that he is only one of the inventors'. He does not say that he is the first inventor or that this foreign invention was not at all known in Pakistan when his machine was manufactured. P. W. 1 Mir Abdul Rashid, who claims to be an employee of Amir Bakhsh Allah Bakhsh Crown Foundry as Planner, stated that in 1960 Fazal Karim manufactured a press machine for perforating metal sheets. The machine was moulded under his supervision and it was. planned by him. About 8 years ago Abdul Aziz defendant came to him and asked him to prepare the same type of machine which was prepared by Muhammad Siddique. He had brought a wooden pattern Hr (the witness) told him that the pattern brought by him showed that it was a copy of the machine prepared by him for Muhammad Siddique. He then moulded and prepar ed the machine of Abdul Aziz also. In cross-examination he stated that he retrained an employee of the factory front 1964 to 1974. He could not give the names of the separate parts of the machine of the plaintiff. He, however, stated that he had prepared only two parts. One was known as press machine, and the other was a rump machine. lie could not however, give the weight of these parts. He admitted that the pattern brought by the customer is not retained by the factory and is returned after the preparation of the part. He did not know whether any record was maintained in the factory about the names and particulars of the customers or any receipt of payment was issued to the customers. He further admitted that he had not seen the machine of Fazal Karim-Muhammad Siddique in working condition. Although according to his examination-in-chief he had stated that Fazal Karim had invented the machine but in cross-examination he stated that the pattern was invented by Muhammad Siddique who at the time of statement might be about 30 to 35 \ears of age and may be about 24 years old when he brought the pattern to him which means that the pattern had been brought to him from 6 to l I years ago, although according to the examination-in chief the time should be 16 years ago. He admitted that no other persons had either brought any pattern and got the parts prepared from the factory where he worked. He stated that he himself did not agree that the parts prepared by the pattern brought by Fazal Karim would work and gave some suggestions to Fazal Karim and advised him to amend the pattern on the basis of these suggestions. He did not remember the measurements of the pattern. lie admitted that his statement about the place where the machine was installed was based on hearsay. He could not say how many horse power engine would be required for properly using the machine which was prepared for Muhammad Siddique on his advice nor he knew the formula of horse power. It was suggested to him that when he had not moulded any such parts before the preparation of the machine of Fazal Karim and Muhammad Siddique, how could he advise Fazal Karim for making amendment in the pattern brought by him. He stated that he had determined this on the basis of his technical knowledge but he could not give the name of that part about which he had given an advice to change lie said that it was known in Punjabi as "Press Dee Body". He deniea that the mother of Muhammad Siddique was related to him. He admitted that the record of planning and moulding must be in the factory. The evidence of this witness is also not reliable. No documentary evidence which could be available in the factory was produced nor was the factory owner examined. The knowledge of this witness about mechanical engineering does not appear to be very satisfactory since he does not even remember the name c' the part which he had advised Fazal Karim to change. He could not sad what type of engine was required to run the machine. He is merely a planner. According to him, Muhammad Siddique P. W. 8 had prepared the machine although according to the evidence of Muhammad Siddique his father had invented the machine. But Muhammad Siddique Nadeem has another story to tell. Accord ing to him, a similar machine had already been prepared in the year 1958 and had been working. He denied that Mir Abdur Rashid had also a hand in inventing this machine. He said that the suggestion of Mir Abdur Rashid was only a suggestion which was generally known and accepted. But when asked as what was the suggestion or whether it pertained to the change of angle, length or weight, he stated that he did not know about this. When it was put to him that "if you had become successful in the year 1958 in preparing a machine, why did you act upon the suggestion of Meer Abdur Rashid, P. W. 1 to make changes in the pattern of the machine given by you to the foundry the witness could not answer the question. He stated that Abdur Rashid was making the rear portion of the machine heavier. He stated that these days he operated three machines of identical nature two of which were not cast by the Foundry of Amir Bakhsh Allah Bakhsh. But he did not know the name of the Factory which prepared that machine. It was, however, near Naz Cinema. Then he stated that all the three machines had come into operation in the year 1965 and thereafter application for registration was submitted which clearly implies that the three machines were not manufac tured in 1960 but were manufacture d and became fit for operation in 1968, He admitted that before preparing the machine his father had failed to prepare files to manufacture iron balls of ball bearing and to prepare grind-wheel and that by profession he was a tin-smith. He pleaded lack of knowledge whether such a machine was fixed in the premises of Abdul Aziz son of Mian Muhammad Shafi, Khokharkey Industries, Gujranwala or in the factory of Muhammad Sharif, Engine and Jali Manufacturer, Uggoki Road, Tehsil and District Sialkot, or in the HESCO Small Industrial Estate, Gujranwala since he had come to know about these machines only on the date of his statement and could not say whether these were foreign manufactured or country made. He, however, admitted that Muhammad Hanif son of Abdul Latif, Crown Expounded Machinery Company, Chiniot. Climax Engineering Co., Gujranwala, Imperial -Fan. Gujranwala, Muslim Engineering Works, Gujranwala. and Muharrmad Hanif. Perforating Jali Manufactures. Khankah Dogran, had identical machines, either imported or country made but he said that these machines were different. He however could not point out the difference. He could only say that the difference was of combination of parts and the proceeds of manufacture. When he was asked to throw light on the name of the process in which his own machines worked, he said that it worked with the process of punching means associated with some automatic motion of the table on which the sheet is bolted. He then admitted that it was possible that this system may be there in the machines of the above-mentioned premises also: He stated that he could not give the exact difference between the working of those machines and his own machine. He then tried to temper the admission about similarity of all these machines with the belated assertion that he had not seen them. Some of the questions and his answers on the subject of difference between foreign machines and the Pakistani manufactured machines are reproduced here :- "Q.-Will you call it an invention if somebody in Pakistan manufac tures a machine which has already been manufactured in foreign 'countries as far back as 1929 ? A.-I will call it an invention in case there is-some difference in the process of manufacture. Q.-Kindly see Exh. D/l, can you point out the points of similarity and dissimilarity between your machine described in this document ? A. -Exh. D; l give; only the general process. I am. therefore, not able to answer this question. Q.

Kindly see the drawing and specifications in Exh. D/1, can you answer this question by looking at this data ? A.-It is not possible to answer the question since a does not denote how the machine described in Exh. D!1 functions. The only distinction that I have been able to find out is that this machine has been prepared in a highly developed country, while our machine has been manufactured keeping in view the resources of our country. I am unable to understand the document Exh. DA." It may be stated that Exh. D, 1 is an extract from the book 'Machinery's Encyclopaedia' with 1929 Supplement dealing with the process of manufacture of such machinery and it deals with a machine with similar process as the plaintiff's machine. Most of the questions relating to the machine could not be answered by this witness. He deposed his absolutely scanty knowledge of machinery even though he has been operating it for such a long time. He thus could not say anything about the strength of the material, about the friction of the material, the pressure or temperature at which the material melts, tae maximum capacity of the punching stroke in the plaintiff's machine. exact number of types which the plaintiff's machine can turn out. how man holes of different types could this machine make at one time assuming that the thickness of the material used is I; 10' or 1; 20', how many teeth there are in the machine, the difference in French thread and English thread, or whether the thread marked in Exh. D-2 .A was English or French, etc. He admitted that the plaintiff did not have in their possession any documentary proof of their getting the machine prepared to the Foundry of Amir Bakhsh Allah Bakhsh nor he had any documentary evidence of the expenses borne on the machine.

17. I am not, therefore. satisfied that the machine of the plaintiff was either manufactured in the year 1960 or manufactured in the foundry of Amir Bakhsh Allah Bakhsh or that P. W. 1 and P. W. 8 had made any truthful statements. It appears clear that the machine of the plaintiff had also been operated upon in the year 1968, though it might have been manufactured sometimes earlier. The knowledge of Muhammad Siddique Nadeem about Mechanical Engineering even as a Mistri is very scanty. On the other hand, it is established from his evidence that a number of other parties are operating identical machines. Though he tried to explain that those machines are different but he could not give the points of difference and took shelter behind the plea that he had not seen them. It looks rather odd that the man who is said to have invented and manufactured the machine did not appear in evidence. It is established that he is a tin-smith and had failed in the preparation of several other things, e.g. files grind-stone or iron balls for ball bearing. The defendant has taken up the plea that Fazal Karim is an illiterate man and is not capable of making an invention. It appears to me that he has not bean produced for the reason that he might not stand the test of cross examination on technical matters Such a presumption can be raised against him under section 114 of the Evidence Act. If he had appeared as a witness he could not have given such a statement which would have supported his case fully. Several witnesses have been examined on behalf of the defendant. They are Muhammad Khan Bhatti D. W. 1, Nazir Ahmad D. W. 2, Abdus Sa'am D. W.

3. Muhammad Akram D. W. 4, Rana Bashir Ahmad D. W. 5 and Abdul Ariz D. W. 6, All these witnesses have stated that such machines, as those of the parties, are with other parties or persons also. They have given -specific names of such parties. It is unnecessary to deal with their evidence at any length since P. W. 8 himself conceded this point and hip evidence about there being any difference between the plaintiff's machine and the machines worked by those other persons being inconclusive has been disbelieved. But I find that Muhammad Khan D. W. I was tested about the knowledge of such machines and he had stood the test of cross-examination. He cave the names of different parts of the machine of the defendants. He is proved to be an independent witness. D. W. 2 stated that he did not know the inventor but there were foreign machines from which any one could copy. This witness is the consanguine brother of Fazal Karim. He denied that there was any dispute between him and the plaintiff. He admitted that Muhammad Siddique had filed a civil suit against him, Muhammad Shaf and Abdul Aziz but the same was decided by a compromise and they had agreed not to make any pattern like the registered pattern of Muhammad Siddique. But he denied that any of the three brothers had at all prepared any pattern. For this reason they did not see any harm in effecting a compromise. He admitted having seen the machine of Abdul Aziz in the year 1959. In view of the litigation, it is not safe to rely upon this witness. Abdus Salam D. W. 3 stated that though he had not repaired such machine but had seen it in the factory where he was working. He stated that the fundamental principle of the working of the power press is the same. The principle in which the punch comes from upward and-punches the sheet is the same in all the machines. He had seen the machine of Abdul Aziz in the year 1962-63. Similar machines were tired in BECO Company, Factory of Climax Fan, some premises at Gondlanwala Road, Industrial Estate Gujranwala and Muslim Road, Gujranwala. Muhammad Akrarn D. W. 4, though he stated that Abdul Aziz had made his machine first but he said that the principle of punching in all such machines, whether foreign or country made, is the same. He admitted that he was a cousin of Abdul Aziz and had been coming to the Court on certain dates with Abdul Aziz. He named a number of factories in which similar machines are working. He thin stated that he had seen all those machines with his own eyes. It is not safe to rely upon him. Rana Bashir Ahmad D. W. 5 said that his employer had such machine. He named nine other persons having identical machines which were locally manufactured. Similar is the statement of Abdul Aziz himself who, in addition, asserted that his machine was maunfactured in 1959 and was made by his father while the plaintiff's machine was manufactured later after three years. , But this is not the case of the defendant that the machine prepared by him is at all an invention. His case is that the formula for manufacturing such machines is widely known acid there are large number of foreign as well country made machines in use. He said that his machine was operated upon by two-horse power electric motor while the plaintiffs operate all their machines with five horse power motor. In cross-examina tion, he stated that his father had died in 1968. In this state of residence can it be said that the plaintiff is an inventor ? The word invention' defined in subsection (8) of section 2 of the Patent and Design Act as meaning "any manner of new manufacture and includes an improvement and an alleged invention". Manufacture is defined in sub-section (l0) of section 2 as including any art, process or manner of producing. preparing or making an article, and also any article prepared or produced by manufacture. Section 3 provides for an application to be made in the prescribed form in the Patent Office for grant of patent. This application must contain a declaration to the effect that the applicant is in possession of an invention and in case of joint application, as in this case, that at least one of the applicants is the true and first inventor or the legal representative of such inventor. Section 13 also talks of the true and first inventor. Under section 5, the Controller is bound to refer to - an examiner every application in respect of which a complete specification has been filed. Section 9 provides that any person may, within four months from the date of the advertisement of the acceptance of an application, give notice at the Patent Office of opposition to the grant of the patent inter alia on the ground- (a) ..................................... (b) .................... (c) ............................................................ (d) that the invention has been publicly used in any part of Pakistan or has been made publicly known in any part of Pakistan. (e) ......................................... ................... Coming to section 26, it is clear that some of the grounds for revoca tion of a patent are that the grantee of patent was not a `true and first inventor' that the invention was not, at the date of the patent, a manner of new manufacture or improvement or that the invention did not involve any inventive step, having regard to what eras known or used prior to the date of the patent." (Underlining* is mine). It is clear from these provisions that an invention is a manner of a new manufacture though it also includes improvement. But if the process of manufacture is already known, the manufacture cannot be called an invention and neither any patent for such manufacture can be granted nor, if granted, it can be allowed to continue. Moreover, the applicant must be A the `true and first inventor'. It is not necessary that the entire machine may be an invention. If inventive genius has been exercised in the process or manner of production and that process is different from the process of processes used in other similar machines it would still be an invention. It was held in Canadian General Electric Co. v. Fada Radio Ltd. (AIR 1930 P C I) that there must be a substantial exercise of the inventive power or inventive genius, though it may in cases be very slight. Slight alterations or improvements may produce important results, and may disclose great ingenuity. Sometimes it is a combination that is the invention ; if the invention requires independent thought, ingenuity and skill, producing in a distinctive form a more efficient result converting a compratively defective apparatus into a useful and efficient one, rejecting what is bad and useless in former attempts and retaining what is useful and uniting them all into an apparatus which taken as a whole is novel there is subject matter of invention. A new combination of well-known devices and the application thereof to a new and useful purpose may require invention to produce it and may be good subject-matter for a patent. In Pope Appliance Corporation v. Spanish River Public Paper Mills Ltd. (AIR 1929 P C 38) it was held that there may be invention in what after all is a simplification. After all invention is finding out something which has not been found out by other people. The quid to the patentee is .the monopoly ; the qua is that it presents to the public the knowledge which they have not got. Thus a new process or improvement of an old process may be and invention. (Lallubhai Chakubhai v. Chimanlal & Co. (A I R 1936 Bom. 99). But there mull be some novelty in the process or improvement. Ganendro Nath Banerji v. s Dhanpal Das (3). 1n the present case, it is clear that the process of manufacture was wide known. The method of punching of a sheet is the same as that of sewing machine i. e. in a `U'-shaded machine the punch falls from above on the metal sheet and when it rises after punching the sheet slides for the second e punch as the cloth slides in a sewing machine. It would no doubt be an invention if that process has for the first time been adopted by the plaintiff for punching metal sheets. The case of the plaintiff is that by the old process only one hole could be punched at one time since there was no process of sliding. If this be true then discovery of the process of sliding would involve invention. But in the present case it is not denied that foreign machines which are much advanced Pave long been in the field. In this connection, reference may be made to the fundamental difference drawn by Dr. Uppal between a foreign machine and the Pakistani made one "The fundamental difference in the two types of machines (foreign and Pakistani made) lies in the system of operation. In foreign machines, the job (work piece) is held in a special carriage and this carriage slides the job on an anti-friction stationary bed. In case of Pakistani made machine, the job is fixed on the bed itself and it itself moves under the die head. Another basic difference in the two types of machines is that most of the foreign machines described in their catalogues, can hold a number of punching dies (of different dimensions and types) in the turret head and rotation of the turret head is achieved through an independent electric motor. The rotation of the turret head is needed to bring a particular punching die in the desired position. In this way, time consumed to changing the punching the dies can be saved. The die head on Pakistan machines can hold only one punching die at a time and therefore there is no independent electric motor installed to the die head. In other words, the foreign machines can perform different sized holes at one setting of the tools and time in replacing the punching die tools is saved. The Pakistani machine can punch only one the of holes at a time." 1t was only the first point of difference which was stressed by P. W. 8 when he said that his machine works with the process of punching means associated with some automatic motion of the table on which the .sheet is bolted. The differences pointed out by Mr. Uppal are only improvements upon the Pakistani made machine. It appears clear that when the machine was first invented more than hundred years ago it could punch one hole at a time making it necessary to raise the punch and slide the sheet with hand and then make another punch. The next step must be of making the punch automatically rise after each punch and making the metal sheet slide .for the other punch before the punch falls again. The process of making such carriage which slides the body on an anti-friction stationary bed or a machine holding a number of punching dies in stead of one in the turret head must be a later improvement. And this is not a mere conjecture. The process of the parties'-machine is clearly laid down and described in Exh. D. I the Machinery's Encyclo paedia with 1929 Supplement. Volume V. The following portions from pages 154, 155 and 216 which have been copied by Dr. Uppal also at pages 3 and 4 of his report, paras 1.4 and 1.5, without acknowledging it, are reproduced :- "Perforating Presses.-perforating presses are used for punching large numbers of small holes in sheet metal for producing strainers, sieving devices, etc. and also for perforating the sides of circular parts, such as lamp burner galleries, etc. The perforating of shells and flat sheets is done either increases of ordinary construction fitted with special attachments or by means of special perforating presses . .............................................................................. One type of perforating press for operating on flat stock is arranged to perforate the entire width of the sheet at each stroke. The stock is fed forward automatically after each stroke by a double roll ratchet feeding mechanism. For instance, after perforating a double row of holes simultaneously, the stock is fed in the required distance for perforating the effect double row, and so on ..................... Another design of perforating press is so arranged that the feed-rolls have a side motion which automatically shifts the sheet sideways at each stroke for the purpose of perforating a staggered pattern, by means of a single row die . ...................................................... There is still another type of perforating press which has, in addition to the double-roll feed with lateral motion, a device for varying the feed, thus enabling the sheet being perforated -to move an equal distance for two or three strokes, and then a greater or less dis tance . ................................................................................. The plate or other part to be punched is carried by a table that is shifted an amount equal to the spacing required between the poles. This spacing table may have either a band or automatic feed. The mechanism of an automatic spacing table is so designed that the table is shifted as soon as the punch has moved up far enough to clear the work, the movement being completed before the punch again engages the stock." The last paragraph which is from page 216 of the above book proves that the idea of machanism of an automatic spacing tabs. which is so designed that the table is shifted as soon as the punch has moved up far enough to clear the work is not a new one but machines had been made on this basis even before 1929. It is very strange that as stated above Dr. Uppal had himself copied this paragraph from the MACHINERY'S ENCYCLOPAEDIA and even then he characterised the plaintiff's machine which is alleged to have been made for the first time in 1960 to be an invention. The only difference in the foreign made machine and the plaintiff's machine pointed out by him as well as by P. W. 8 is that in the foreign machine the job (work piece) is held in the special carriage and this carriage slides the job on an anti-fric tion stationary bed. While in the case of the plaintiff's machine the job is fixed on the bed itself and it itself moves under the die head. But be did not consider the above paragraph from page 216 which describes the existing mechanism of an automatic table which moves as soon as the punch moves up. This is exactly the same mechanism as used in the machines of the parties. I directed both the parties to give me in writing the points of similarity and difference between the machine in Exh. D. 1 and the machine in Exh. P. 1 of the plaintiff. Muhammad Siddique Nadeem on behalf of the plaintiff produced such a document in which he described a resemblance between a sewing machine and the punching machine in Exh. D.

1. The only difference which he could point out in the machine Exh. D. 1 and the specification Exh. P. 1 is that in Exh. P. 1 the main driving shaft having hardly 1 J feet length (Block 8 is mounted on) is producing the same result as compared to the-main driving shaft (B) having along length just bigger from the main body of the machine (Exh. D. 1) itself. He admitted that so far as the motion of the table is concerned, it is no doubt that its general function seems to be the same. But then he has drawn the inference that it is due to insufficient information of Exh. D. 1 that it is impossible to find out the differences of the machines in question. This is not, however, the point. The sliding of the table as soon as the punch moves up being the only novelty pointed out the issue is con siderably narrowed down. If once it is admitted that in the machine described in the Machinery's Encyclopaedia it was the table which slided that sufficiently answers the query whether the plaintiff's machine is an imitation of machines which were in use even in 1929 or before. Once this question be answered in the affirmative, as it must be answered, the plaintiff's machine cannot be called an invention. The admission by P. W. 8 that there were similar machines with a number of other parties clinches the issue against the plaintiff. I, therefore, hold that the plaintiff's machine is not an invention. In view of this, even if it is assumed that the defendant's machine is an imitation of plaintiff's machine, it would not be material. The defendant's case has throughout been that none of the parties are inventors. It may be stated that though the. plaintiff claimed to be the first inventor in the application for grant of patent before the Controller of Patents and Designs, this is not his case in the plaint. There he alleges to be one of the inventors. This is an admission of the fact that there are other inventors of similar machines. The plaintiff cannot,. therefore, be called to be the true or first inventor nor is this his case in the plaint. I find issues Nos. 2. 3 and 5 against the plaintiff.

20. Issue No. 8 The defendant is not entitled to any special costs since the plaintiff bad approached the Court on the basis of a patent granted, though erroneously, in his favour.

21. Issue No. 9 As a result of the findings on issues Nos. 2, 3 and 5, the plaintiff' suit is dismissed with costs while C. M. 76/1- of 1972 is allowed and Patent No. 121506 granted to the plaintiff is revoked. The plaintiff shall pay the costs of that case also to the defendant. S. Q. Suit dismissed.