Back
2006 Supreme(All) 1696
[2006(6) ADJ 1]
ALLAHABAD HIGH COURT
BEFORE : TARUN AGARWALA, J.
M/s. ASHOK PRAKASHAN (REGD.), BULANDSHAHAR AND OTHERS ...Appellants
Versus
SUNIL KUMAR AND OTHERS ....Opposite Parties
(First Appeal From Order No. 620 of 2006, decided on 30th June, 2006)
Counsel :
M.K. Gupta for the Appellants; B.D. Mandhyan, Manu Saxena, R.B. Singhal, Murlidhar, Ajit Kumar and Anoop Trivedi for the Opposite Parties.
Headnote:Code of Civil Procedure, 1908—Order XXXIX, Rules 4, 3, Order XLI, Rules 1(r) and 27 and Section 10—Copyright Act, 1957—Section 48—Printing, publishing and selling books, using name of G. Ram or J. Ram—Ex parte injunction—Granted by D.J.—Appeal against—Only ground alleged in plaint was that plaintiff was son of Author—And had inherited Copyright upon his father's death—Nothing stated about irreparable injury, or balance of convenience—None of those two conditions existed in plaint of plaintiff—Even otherwise, plaintiff has filed a suit for rendition of accounts, where matters with regard to sale of books, etc., would be accounted for, and appropriate compensation damages, alongwith royalty, etc., would be considered, in event plaintiff’s suit was decreed—Hence, balance of convenience, does not lie, in favour of plaintiff—Moreover, it was mandatory for Court to record reasons, where it appears that object of granting an injunction, would be defeated by delay—Therefore, impugned order of D.J., to remain stayed, till further orders of Court. [Paras 16, 17, 18, 19, 20, 21, 22 and 23]
Hon’ble Tarun Agarwala, J.—This First Appeal From Order under Order 43 Rule 1(r) of the Civil Procedure Code is against an ex parte injunction dated 29.5.2006 passed by the Incharge District Judge, Meerut in Original Suit No. 1 of 2006 restraining the defendant-appellants from printing, publishing and selling the books, detailed at the foot of plaint and from using the name G Ram or J Ram.
2. The brief facts, as enumerated in the plaint is, that the plaintiffs’ father G Ram and defendant Nos. 1 and 2 are real brothers. The plaintiffs father had written several books which were published by a firm known as Ashok Prakashan, in which defendant Nos. 1 and 2 were the partners. It is alleged that the appellant’s father was also a partner in the said firm. However, there was no deed in writing but the plaintiffs mother Sheela Devi was a partner in the firm and that an agreement to this effect was executed in writing. The plaintiff contended that his father died on 24.2.2004 and that the plaintiff inherited the Copyright of the books written by his father. It was alleged that after the death of his father, the plaintiffs were selling the books under the name of J Ram and that no royalty was being paid by the defendants to the plaintiff on the books sold by the defendants’ firm. Consequently, the plaintiffs prayed for a permanent injunction restraining the defendants from printing, publishing or selling the books written by the plaintiffs’ father G Ram and also prayed for the defendants be further restrained from using the name G Ram as J Ram.
3. The said suit was instituted on the last working day of the Civil Court, Meerut on 29.5.2006 before the Incharge District Judge and on the same date, an ex parte injunction was granted restraining the defendants from printing, publishing and selling the books, detailed at the foot of the plaint and from using the name G Ram or J Ram. The Court below while granting the injunction held :
“The purpose of the suit shall be frustrated, if interim injunction is not granted in favour of the plaintiff because the defendants have been continuously infringing the copyright of the plaintiff.”
4. Aggrieved, the defendants-appellants have filed the present First Appeal From Order before this Court and have prayed that the injunction order granted by the Court below should be set aside. Before this Court, the defendants-appellants submitted that the present suit is a second suit arising out of the same cause of action, and therefore, was not maintainable and was also barred by Section 10 of the Code of Civil Procedure. Further, the plaintiff had concealed material facts and had not come to the Court with clean hands. The plaintiff along with others had earlier filed Original Suit No. 362 of 2006 before the Civil Judge (Senior Division) at Bulandshahar in April 2006 praying for the rendition of the accounts and for restraining the defendant-appellants from publishing or selling the books written by G. Ram without paying royalty to the plaintiff. It was also submitted that an injunction application was moved on 25.5.2006, in which the Civil Judge issued notices and no injunction was granted by the said Court. It was also submitted that another original suit No. 174 of 2006 was filed through the brother-in-law of the plaintiff before the Civil Judge (Junior Division), Meerut on 22.5.2006, in which similar relief was prayed, namely, that the defendants-appellants be restrained from publishing the books written by G Ram. The defendants-appellants submitted that the Civil Judge (Junior Division) Meerut granted an ex parte injunction restraining the defendants-appellants from publishing or selling the books written by G Ram. Against this injunction, the defendants-appellants preferred an appeal before the District Judge and by an order dated 31.5.2006, the injunction granted by the Civil Judge was stayed by the District Judge and the parties were directed to maintain status quo.
5. Apart from the aforesaid,
