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IN THE HIGH COURT OF ALLAHABAD
J. D. Sharma, J.
AMRITA DEVI - Appellant
Versus
SRIPAT RAI - Respondents
First Appeal 424 Of 1955
Decided On : 02/03/1961
COPYRIGHT - OWNERSHIP - ASSIGNMENT - EVIDENCE - ADMISSIBILITY - COMMISSION - STATEMENT RECORDED ON COMMISSION - CONDITIONS FOR ADMISSIBILITY - ORDER 26, RULE 8, C. P. C. - SECTION 90-A, EVIDENCE ACT - PRESUMPTION - EXECUTION OF DOCUMENT - SECTION 10, FIRST SCHEDULE, PART II, COPYRIGHT ACT, 1914 - LIMITATION - INFRINGEMENT OF COPYRIGHT - FRESH CAUSE OF ACTION.
Fact of the Case:
The plaintiffs, proprietors of Bhargava Pustakalaya, filed a suit against the defendants, sons of the famous Hindi writer Sri Prem Chand, alleging infringement of copyright in the novel 'Nirmala'. The plaintiffs claimed to have acquired the copyright through an auction sale in execution of a decree against R. Sehgal, who was alleged to have paid the writing charges of 'Nirmala' to Sri Prem Chand and obtained an assignment of the copyright.
Finding of the Court:
The court held that the plaintiffs failed to prove that Sri Prem Chand was paid the writing charges for 'Nirmala' by R. Saigal or that it was written by him during the course of his employment in the Chand Press. The court also held that the statement of N. G. Saigal, recorded on commission, was not admissible in evidence as the conditions mentioned in Order 26, Rule 8, C. P. C. were not satisfied. The court further held that the copies of the accounts relating to the payment of Rs. 325/8/- to Sri Prem Chand were not admissible in evidence as they were not part of the record of a court of justice and did not fall within the purview of Section 90-A, Evidence Act. The court also held that the publication of the story in serial in the 'Chand' and of the first edition of the 'Nirmala' did not indicate that the copyright in the book had been transferred absolutely. The court further held that the suit was not barred by limitation as each infringement of copyright gives rise to a fresh cause of action.
Issues: 1. Whether the plaintiffs had acquired the copyright in the novel 'Nirmala' through an auction sale in execution of a decree against R. Sehgal? 2. Whether the statement of N. G. Saigal, recorded on commission, was admissible in evidence? 3. Whether the copies of the accounts relating to the payment of Rs. 325/8/- to Sri Prem Chand were admissible in evidence? 4. Whether the publication of the story in serial in the 'Chand' and of the first edition of the 'Nirmala' indicated that the copyright in the book had been transferred absolutely? 5. Whether the suit was barred by limitation?
Ratio Decidendi: 1. The plaintiffs failed to prove that Sri Prem Chand was paid the writing charges for 'Nirmala' by R. Saigal or that it was written by him during the course of his employment in the Chand Press. 2. The statement of N. G. Saigal, recorded on commission, was not admissible in evidence as the conditions mentioned in Order 26, Rule 8, C. P. C. were not satisfied. 3. The copies of the accounts relating to the payment of Rs. 325/8/- to Sri Prem Chand were not admissible in evidence as they were not part of the record of a court of justice and did not fall within the purview of Section 90-A, Evidence Act. 4. The publication of the story in serial in the 'Chand' and of the first edition of the 'Nirmala' did not indicate that the copyright in the book had been transferred absolutely. 5. The suit was not barred by limitation as each infringement of copyright gives rise to a fresh cause of action.
Final Decision: The appeal was dismissed with costs and the judgment and decree of the learned District Judge were confirmed.
( 1 ) THIS is a plaintiffs appeal from the judgment and decree of the learned District Judge, allahabad.
( 2 ) THE plaintiffs, the proprietors of the Bhargava Pustakalaya, Gaighat, Varanasi, brought the suit on the allegations that a novel called Nirmala was written by the famous Hindi Writer, Sri Prem chand; R. Sehgal (who was impleaded as defendant No. 4 but died during the pendency of the suit) had paid the writing charges of Nirmala inclusive of copyright to Sri Prem Chand, and as the owner of the copyright, R. Sehgal printed and published the said work in 1947. Raja Ram kumar Bhargava brought to sale in execution of his decree No. 28 of 1929 of Civil Judges court, Lucknow, against Rule Sehgal his copyrights in Nirmala and 131 other books. The plaintiff No. 2 purchased the copyrights in a public auction held by the court of Munsif, West, on the 1st December, 1944. A sale certificate, as provided by Order 21, Rule 81, C. P. C. was granted by the Munsif West, Allahabad, whereby the copyright in the book styled Nirmala along with 131 other books vested in the plaintiff No. 2 and the plaintiffs had the exclusive right of printing and publishing Nirmala. The defendants 1 and 2 sons of Sri Prem Chand had no right to interfere with the plaintiffs copyright in Nirmala, but they had infringed the plaintiffs copyright by printing, publishing and selling Nirmala on dates subsequent to the 1st December, 1944 and had not desisted from doing so in spite of the plaintiffs request.
( 3 ) THE relief claimed by the plaintiffs were :
(a) a permanent injunction against defendants 1 and 2 restraining them from producing, reproducing, printing, publishing and selling the copies of the Hindi work Nirmala; (b) directing the defendants 1 and 2 to render an account of the money earned by printing and publishing the Nirmala; (c) directing the defendants 1 and 2 to deliver up to the plaintiffs all the unsold copies of the work Nirmala.
( 4 ) THE defendants 1 and 2 contested the suit on the grounds that Sri Prem Chand, father of the defendants was the author and therefore the first owner of the copyright of the literary work and novel Nirmala and after his death the copyright vested in the defendants 1 and 2, his heirs and legal representatives; there was no assignment of the copyright by Sri Prem Chand; the story appeared in the periodical known as Chand by way of contribution thereto and the first edition of nirmala was printed and published by Chand Press Ltd. , and any payment even if received by the author in respect thereof could not divest him of the copyright. Sri Prem Chand never transferred the copyright to Rule Sehgal or to anybody else and ever since the defendants 1 and 2 came of age they had brought out several editions of the work Nirmala. The suit was barred by waiver and acquiescene and by limitation. It was further pleaded that the entire proceedings relating to the sale certificate were collusive, fraudulent and ultra vires and the sale certificate conferred no right or title on the holder thereof and the suit was bad for misjoinder of parties.
( 5 ) THE learned District Judge, Allahabad, to whose court the suit was transferred from the court of the District Judge, Varanasi, held that Sri Prem Chand was and remained the owner of the copyright in the work known as Nirmala and it was not proved that he was paid the writing charges by, or had made an assignment of the copyright to, Sri Rule Sehgal, and the plaintiffs had not acquired any right to the copyright in the Nirmala. It was further held that the sale in the decree of Raja Ram Kumar Bhargava was not collusive or fraudulent and the suit was not barred by waiver or acquiescene and limitation, but there was no infringement by the defendants 1 and 2 of any copyright. In the result the suit was dismissed.
( 6 ) IT is urged in appeal that the Nirmala was written by Sri Prem Chand on a contract of service with Rule Sehgal who was the owner of the copyright and he had a
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