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IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT GOA
C.V. Bhadang, J.
Architect Bruno Dias Souza - Appellant
Vs.
Mr. Gustavo Renato Pinto (Deceased) - Respondent
First Appeal Nos. 221, 222 & 223 of 2007
Decided On : 19-07-2017
Civil Procedure Code, 1908-Order XXII, Rules 4 and 9-Abatement of appeal.-Failure of appellant to bring legal representatives of defendant on record renders abatement of appeal as a whole.
It can thus be seen that the claim for damages, is joint and several against the defendant Nos. 1 and 2. It is on the basis of a claim that the defendant Nos. 1 and 2 by their joint act have infringed the copyright of the plaintiff. The trial Court has dismissed the suit holding that there is no breach/infringement of any copyright. In appeal the legal representatives of the respondent No. 2 (defendant No. 2), have not been brought on record and thus, the appeal has abated as against the respondent No. 2. The question is whether, this would result in abatement of the appeal as a whole and, the answer has to be in the affirmative. This is because the decree which is challenged is "joint and in severable". The defendant No. 1 or for that matter, defendant No. 2 were not capable of committing the alleged infringement on his own. The submission of the drawings/plans to the NGPDA required the services of an Architect to be engaged by the owner.
The owner cannot submit such drawings on his own and thus, independently they were incapable of committing the infringement of the copyright as claimed by the plaintiff. The matter can be looked at, from another angle. For instance, if these appeals were to be allowed, it would result into two decrees, which would be incongruent or contradictory in nature. While the decree against the defendant No. 2 holding that defendant No. 2 has not committed any infringement of the copyright, would subsist (as the appeal as against respondent No. 2 has abated), there would be a decree holding that the defendants have committed infringement of the copyright. Therefore, the appeals shall abate as a whole on account of the failure of the appellant to bring the legal representatives of the respondent No. 2 on record. The point is accordingly answered in the affirmative.
C.V. Bhadang, J.
All these appeals are between the same parties and involve common and connected questions of law and fact and as such, they are being disposed of by this common judgment.
2. The brief facts necessary for the disposal of the petition may be stated thus:
The appellant in these Appeals is the original plaintiff, while now deceased-Gustavo Pinto was the original defendant no. 1, who is now represented by his legal representatives. The respondent no. 2, was the original defendant no. 2, who has since expired. His legal representatives are not brought on record. For the sake of convenience, the parties are referred to in their original capacity.
3. The plaintiff is an Architect. The original defendant no. 1-Gustavo Pinto had engaged architectural services of the plaintiff, sometime in the month of September, 1992 for the purpose of designing a Hotel cum Shopping Complex, named 'Pinto Arcade', at Campal, Panaji. The same was to be constructed on a plot of land belonging to the defendant no. 1- Gustavo Pinto. The terms and conditions on which the plaintiff, was to give his architectural services were settled, including a schedule of payment of fees of the plaintiff. The fee was payable in a staggered manner, depending upon the stage of the project.
4. According to the plaintiff, he completed Stage I and Stage II i.e. the conceptual stage and the preliminary design stage and an amount of Rs. 25,000/- was paid to him as professional fees. The plaintiff also completed Part 1 and Part 2 of the third stage, on which he was paid Rs. 50,000/- as agreed upon. Part 3 of Stage III i.e. the process of the approval of the statutory Authority was in progress, wherein the layout alongwith the plan, area statement and the project report was presented for approval to the North Goa Planning and Development Authority (NGPDA) sometime on 26.11.1993. It is the material case of the plaintiff that as per the endorsement made on the drawings, it was stipulated that the said drawings are the property of the Architect and are not to be used without his permission. It appears that certain objections were raised by the NGPDA, which were accordingly removed, including that of the statutory set backs to be kept. According to the plaintiff, he has a copyright in the drawings.
5. On account of some disputes, the original defendant no. 1-Gustavo Pinto terminated the services of the plaintiff and the architectural work was entrusted to the defendant no. 2. According to the plaintiff, the defendant nos. 1 and 2 used and reproduced the same designs and submitted them to the NGPDA on 25.08.1994. This according to the plaintiff was in breach of the copyright of the plaintiff in the said design.
6. It is in these circumstances that the plaintiff filed Civil Suit No. 1/1995 for damages under the Copyright Act, 1957 against the defendants. The plaintiff sought damages of Rs. 37 lakhs jointly and severally against the defendant nos. 1 and 2 as set out below:-
1. General Damages : Rs. 20,00,000/-
2. Special Damages : Rs. 12,00,000/-
3. Punitive Damages : Rs . 5,00,000/-
Total : Rs. 37,00,000/-
The plaintiff also claimed separate damages of Rs. 6 lakhs against the defendant no. 2 alongwith injunction, restraining the defendants from using the said copies and infringing the copyrights of the plaintiff in the said designs.
7. According to the plaintiff, the cause of action for filing the suit arose sometime in the month of July, 1994, when the defendant no. 1 gave the original drawings of the plaintiff to the defendant no. 2 and defendant no. 2 reproduced them.
8. In plaint paragraph no. 17, the plaintiff has stated that he will be filing a separate suit for compensation arising out of termination/breach of the contract, by the defendant no. 1.
9. It appears that the defendant no. 1 filed his written statement on 22.05.1995, resisting the suit claim in which, it was brought on record that there were some changes made in the design and fresh designs (Exhibit-M) were p
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