( 1 ) SECTION 62 of the Copy Right Act, 1957 read in juxtaposition with Section 20 of the Code of Civil Procedure, 1908, which forum can a plaintiff invoke complaining of infringement of copy right or infringement of any other right conferred by the Copy Right Act, is the question arising for decision.

( 2 ) ON the plaintiff s own showing, and admittedly, the plaintiff and the defendant are both residents of Calcutta. Plaintiff who is engaged in the manufacture and sale of chewing tobacco known as khaini under the trade mark RAJA, claims copy right in the pouch which according to him coupled with distinctive colour combination get-up and lay-out constitutes an original artistic work within the meaning of Section 2 (c) of the Copy Right Act (hereinafter act , for short) and the plaintiff is the owner thereof. He complains of the defendant having reproduced the plainiff s artistic work in his own pouch wherein he sells RATAN Khaini and is thereby committing infringement of the plaintiff s copy right. Vide para 13 the plaintiff states, "the Court has jurisdiction to entertain and try the present suit as the defendant is selling its products within the territorial jurisidiction of this Court. Moreover, this Court has jurisdiction under Section 62 (2) of the Copy Right Act, 1957 as the plaintiffs carry on their business within the territorial jurisdiction of this Hon ble Court. "

( 3 ) APART from the abovesaid statement in para 13, which is the jurisdiction clause in the plaint, it is nowhere mentioned in the plaint as to how and in what manner, the plaintiff carries on his bjusiness within the jurisdiction of is Court. Nor is it stated as to how and in what manner, the defendant is selling its products within the territorial jurisdiction of this Court. The plaintiff has not alleged a single transaction of any sale of his product by the defendant himself or anyone else on his behalf in the infringing pouch within the territorial jurisdiction of this Court.

( 4 ) THE defendant has specifically pleaded in the written statement that this Court does not have jurisdiction to try the suit as both the parties are manufacturing chewing tobacco (khaini) in Distt. 24 Pargana (North) West Bengal and the defendant has never sold his khaini in the jurisdiction of this Court at any point of time. It is further alleged that the plaintiff has filed the present suit before this Court with a view to harass the defendant. The defendant lives jointly with his elder brother Shri Rakesh Kumar Gupta. Plaintiff s sister is married with the defendant s. brother. Their relations are strained.

( 5 ) IT is well settled that the question of jurisdiction has to be decided, prima facie, by looking into averments made in the plaint and not by the plea taken in the written statement.

( 6 ) SECTION 20 of the Code of Civil Procedure (hereinafter code , for short) provides for a suit being instituted in a Court within the local limits of Whose jurisdiction, the defendant or each of the defendants or one of the defendants actually and voluntarily resides or carries on business or personally works for gain (subject to leave of the Court where one of the defendants only resides within the jurisdiction of the Court) or where the cause of action wholly or in part arise.

( 7 ) SECTION 62 of the Act reads as under :-

"62. Jurisdiction of Court over matters arising under this Chapter -

(1) Every suit or other civil proceedings arising under this Chapter in respect of the infringement of copyright in any work or the infringement of any other right conferred by this Act shall be instituted in the District Court having jurisdiction.

(2) For the purpose of sub-section (1), a "district Court having jurisdiction" shall, notwithstanding anything contained in the Code of Civil Procedure, 1908, or any other law for the time being in force, include a District Court within the local limits of whose jurisdiction, at the time of the institution of the suit or other proc