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High Court Of Delhi
KHEMRAJ SHRIKRISHANDAS - Appellant
Versus
GARG AND COMPANY - Respondent
First Appeal Order 88 of 1974
Decided On : 03/07/1975
PASSING OFF - COPYRIGHT - TRADE MARK - INJUNCTION - PANCHANG - TITLE, GET UP AND ARRANGEMENT - DECEPTIVELY SIMILAR - BALANCE OF CONVENIENCE - AD INTERIM INJUNCTION - COMPENSATION.
Fact of the Case:
Plaintiffs, publishers of "pt. Shrivallabh Maniram Panchang" since 1894, filed a suit against the defendants for passing off their Panchang as that of the plaintiffs. The defendants claimed copyright in the Panchang through Pandit Mani Ram Sharma, the grandfather of defendant No. 2, who allegedly compiled the calculations for the Panchang till his death in 1905. The plaintiffs contended that they were the publishers and proprietors of the Panchang and that the compilation work was done by competent persons engaged by them. The defendants published Panchangs for Samvats 2031 and 2032, which the plaintiffs alleged were deceptively similar to their own.
Finding of the Court:
The court held that the plaintiffs had a prima facie case for passing off, as the defendants' Panchangs were deceptively similar to the plaintiffs' Panchang and were intended to convey the impression that they were the same Panchang published by the plaintiffs. The court also held that the defendants did not have any copyright in the Panchang, as the copyright, if any, vested in Pandit Mani Ram had expired more than 50 years ago. The court further held that the balance of convenience lay in favor of granting an injunction against the defendants, as the injury to the plaintiffs would be irreparable, while the defendants would not suffer any great injury.
Issues: 1. Whether the plaintiffs had a prima facie case for passing off? 2. Whether the defendants had any copyright in the Panchang? 3. Whether the balance of convenience lay in favor of granting an injunction against the defendants?
Ratio Decidendi: 1. The court held that the plaintiffs had a prima facie case for passing off, as the defendants' Panchangs were deceptively similar to the plaintiffs' Panchang and were intended to convey the impression that they were the same Panchang published by the plaintiffs. The court relied on the fact that the defendants' Panchangs had the same title, get up, and arrangement as the plaintiffs' Panchang, and that the defendants had used the plaintiffs' name and logo on their Panchangs. 2. The court held that the defendants did not have any copyright in the Panchang, as the copyright, if any, vested in Pandit Mani Ram had expired more than 50 years ago. The court relied on Section 22 of the Copyright Act, 1957, which provides that copyright in a published literary work subsists for 50 years from the beginning of the calendar year next following the year in which the author dies. 3. The court held that the balance of convenience lay in favor of granting an injunction against the defendants, as the injury to the plaintiffs would be irreparable, while the defendants would not suffer any great injury. The court noted that the plaintiffs had been publishing the Panchang for over 80 years and had acquired a wide reputation in the title and get up, and that the defendants had recently started publishing the Panchang and would not suffer any great injury if they were restrained from doing so.
Final Decision: The court allowed the appeal, reversed the order of the lower court, and granted an ad interim injunction restraining the defendants from printing, publishing, selling, or offering for sale Panchangs deceptively similar to the plaintiffs' Panchang. The court also directed the plaintiffs to deposit a sum of Rs. 150 per month as compensation for the period from the date of the order till the decision of the suit.
( 1 ) THIS first appeal from order has been filed by the plaintiffs against the order of Mr. P. L. Singia, Additional District Judge, dated 18th December, 1973 by which the learned Judge has refused the application of the plaintiffs for grant of ad interim injunction restraining the defendants from printing, publishing or selling, etc. deceptively similar or colourable imitation of the plaintiffs Panchang (Almanac) in dispute.
( 2 ) THE facts of the case leading to the dispute are that the plaintiffs have been printing and publishing the Panchang (Almanac) since 1894 A. D. year after year, according to the Vikram Sainvat up to now. The Panchang bears the name of " pt. Shrivallabh Maniram Panchang" and has a distinctive colour style and title. It is common case of the parties that this Panchang was being com- piled by a reputed astrologer by name Pandit Mani Ram Sharma, (who is the grandfather of Nand Kishore, second defendant ). The preface of the Panchang also supports the version that Pandit Mani Ram Sharma was compiling the calculations and it was being printed and published by the plaintiffs. This position lasted till 1905 A. D. when Pandit Mani Ram Sharma is alleged to have died. (According to the defendants, although it is not so stated by them on affidavits Pandit Mani Ram Sharma died in 1909 ). The ca,se of the plaintiffs is that the publishers and proprietors of the Panchang were the plaintiffs, while the compilation work was being done by competent persons engaged by the plaintiffs from time to time and after the death of Pandit Mani Ram Sharma this work was being done by Pandit Hardev Joshi from 1906 to 1933, by Pandit Hari Parshad Sharma, from 1934 to 1944 and by Pandit Ishwari Datt Sharma from 1945 to 1954. Thereafter from 1955 to 1974, that is to say for the Samvats 2011 to 2030, the plaintiffs claim that the work of compilation had been done by Nand Kishore, second defendant herein. On the record, a photostat copy of the agreement dated 28th April, 1961 has been produced. It purports to have been executed by Nand Kishore, defendant and is to the effect that calculations of the Panchang for the Samvats 2021 to 2030 had been absolutely assigned to the plaintiffs. The trouble has arisen subsequently and it appears that the plaintiffs and the second defendant could not finally agree on the terms for the subsequent years, as is apparent from the correspondence on the file. Consequently, the second and the first defendants entered into some agreement. It is significant that the said agreement on which the defendants I and 2 rely, has neither been filed nor relied upon in ihc court, although it is, if genuine, an extremely material document from which the defendants derive support. As is apparent from the photostat copy of a receipt, (alleged to have been signed by defendant No. 2 on 1st June, 1973) the second defendant has purported to assign his copy-right in the Panchang for the Samvats 2031 and 2032 for a sum of Rs. 2. 000. 00 per. annum, out of which he had received Rs, 2. 000. 00 for the earlier Samvat and Rs. 500. 00 as advance for the following Samvat. Thereafter, defendant No. 1 has published and Panchang for the Samvat 2031 (i. e. 1974-75 A. D.) prior to the institution of the suit and also the Panchang for the Samvat 2032 (i. e. for 1975-76) during the pendency of the suit. On the other hand, the plaintiffs have also brought out their Panchangs and found that the Panchangs in dispute of the defcndants are deceptively similar to their own. Feeling aggrieved, the plaintiffs have instituted the suit on 22nd October, 1973 in the court below, which has given rise to this appeal.
( 3 ) THE allegations made in the plaint are that the plaintiffs are the leading most printers and publishers of the Almanc and or the title cover of the Panchang they print religious signs and symbols of a particular pictorial device and on the back side of the covcr also they print and publish device of the planets and that t
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