( 1 ) MR. Swatantar Kumar, appearing for the petitioner, at the dutset submitted that instead of treating this petition as Revision, it be treated as an Appeal (FAO ).

( 2 ) THE point in controversy is with regard to the maintainability of this petition, The submission of the respondent bad been that the petitioner ought to have filed an application under Order 39 Rule 4 for vacation of the exparte injunction before the trial court, instead of approaching this Court either in revision or in appeal. Hence, neither the appeal nor the revision is maintainable in the facts and circumstances of this case.

( 3 ) IN order to appreciate the objection, the brief fact of the case are that M/s. Bathla Cassettes Industries Private Ltd. filed a suit seeking declaration under Section 60 of the Copyright Act (iier. cinfter called as the Act) on the ground of groundless threats extended by the defendants M/s. Super cssettes Industries Ltd. (petitioner herein) and also sought injunction. The allegation of the plaintiffs in the plaint were that it was manufacturing and marketing prerecorded Audio Cassettes under its brand name LARA. Apart from punjabi, Bhojpuri, Hindi songs, its company has also been manufacturing and marketing the cassettes of devotional songs. That apart, the plaintiff-company has also been manufacturing and marketing musical cassette titled AKRAM RAHI (DARD KA RAHI) TERI GALI WICHON. The plaintifts name 411 has been synonymous to excellant quality and good tapes. The audio casette contains songs which bad been originally sung by Pakistani Artists and producers of such musical works when the record first came into existence was a Pakistani national or a company incoporated under the laws of Pakistan. The Pakistani songs are reproduced in India by a number of different manufacturers under their name and title. For the said musical work no copyright subsists under the Indian Law. The defendant M/s. Super Cassettes Industries Ltd. has been falsely claiming itself to be assignee of the said work in India whereas in fact no such assignment exists or is enforceable as there does not exist any agreement since Pakistan is not a signatory to phonograms convention. Therefore no exclusive right to these songs can be claimed by the defendants in India. It was further alleged in the plaint that the defendants were wrongfully issuing threats to the plaintiffs, its stockists/agents/retailers. Pursuance to the verbal threats, the defendant has also issued a warning notice in the Sandhya Times dated 5th January,1993 in respect of such work. On account of these threats and warnings, the plaintiff s business has been interfered with. It was in this background that the suit under Section 60 of the Act was filed.

( 4 ) THE Trial Court granted the injuction exparte and at the same time restrained the defendants (present petitioner) from interfering with the business of manufacture and sale of musical work namely akram KA RAHI (DARD KA RAHI) TERI GALI WICHON carried on by the said plaintiffs. It is in fact against this ex-parte injunction granted by the Addl. District Judge that the petitioners have come to this Court challenging the same inter-alia on the ground that the impugned order passed by the Addl. District Judge is without jurisdiction as the Court below had no right vested in it to grant such an injunction. At best the Trial Court could have granted the injunction as stipulated under Section 60 of the Act, but the impugned restraint order is beyond its jurisdiction.

( 5 ) SECTION 60 of the Act is reproduced as under: SECTION 60; "where any person claiming to be the owner of copyright. in any work, by circulars, advertisements or otherwise, threatens any other person with any legal proceeding or liability in respect of an alleged infringement of the copyright, any person aggrieved thereby may notwithstanding anything contained in Section 42 of the Specific Relief Act, 1877 institute a declaratory suit that the alleged in