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V. Errabhadrarao (Wrongly Described as Veerabhadrayya in Decree) and anr. Vs. B.N. Sarma and anr. - Court Judgment

LegalCrystal Citation
SubjectIntellectual Property Rights
CourtAndhra Pradesh High Court
Decided On
Case NumberAppeal No. 26/1 of 1952-53
Judge
Reported inAIR1960AP415
ActsHyderabad Copyright Act, 1334F - Sections 2 and 3; Copyright Act, 1957 - Sections 13, 13(1) and 45
AppellantV. Errabhadrarao (Wrongly Described as Veerabhadrayya in Decree) and anr.
RespondentB.N. Sarma and anr.
Appellant AdvocateSrinivasa Rao Moharker, ;Madhava Rao, ;Madehger and ;Vinayak Rao Vaidya, Advs.
Respondent AdvocateV.S. Ashoka, ;Ramamohana Rao, ;K. Venkatachari and ;P. Ramaswami Iyer, Advs.
DispositionAppeal partly allowed
Excerpt:
intellectual property rights - infringement - sections 2 (b) and 3 of (hyderabad) copyright act, 1334f - suit for infringement of copyright - alleged infringement taken place before work got registered - whether remedy available for author - under scheme of act author got copyright only on registration of work - no right available in respect of unregistered work consequently question of infringement arises only on registration of work - alleged violation before registration of work - held, no infringement. - all india services act, 1951.sections 8 & 11 & a.p. buildings (lease, rent and eviction) control rules, 1961, rule 5: [v.v.s. rao, g. yethirajulu & g. bhavani prasad, jj] refusal by landlord to receive rent - deposit of rent in court - held, a tenant has the option to take recourse.....jaganmohan reddy, j. 1. this appeal arises out of a judgment of the city civil court decreeing the plaintiffs suit for rs. 8,250/ with costs against defendants 1 to 3 and directing a permanent injunction restraining them from infringing the copyright of the plaintiff in respect of the telugu book entitled 'hyderabad pai police charya' (police action against hyderabad). the plaintiff had alleged that he was the author of the said book which, he had written in july 1949 in respect of which he had a copyright, that he had arranged to have 1,000 copies of the same printed in vani press and had obtained 100 copies; but the remaining 900 copies were obtained from the press by defendants 1 and 2 in collusion with the 3rd defendant who is the proprietor of sreerama book. depot, secunderabad......
Judgment:

Jaganmohan Reddy, J.

1. This appeal arises out of a judgment of the City Civil Court decreeing the plaintiffs suit for Rs. 8,250/ with costs against defendants 1 to 3 and directing a permanent injunction restraining them from infringing the copyright of the plaintiff In respect of the Telugu book entitled 'Hyderabad Pai Police Charya' (Police Action Against Hyderabad). The plaintiff had alleged that he was the author of the said book which, he had written in July 1949 in respect of which he had a copyright, that he had arranged to have 1,000 copies of the same printed in Vani press and had obtained 100 copies; but the remaining 900 copies were obtained from the press by defendants 1 and 2 in collusion with the 3rd defendant who is the proprietor of Sreerama Book. Depot, Secunderabad. Subsequently, it is further alleged, the defendants had got printed 3000 copies of the said book in September 1949 infringing his copyright of the book. The damages claimed were calculated at Rs. 2-8-0 per book for the 900 copies amounting to Rs. 2,250/- and at Rs. 2/- per book for the 3000 copies amounting to Rs. 6000/.

2. The appellants denied that the first respondent was the author of the book and alleged that it was a translation of the English version of the 'Police Action Against Hyderabad', the pamphlet 'Real Face of Hyderabad' and other articles of which the appellants were the authors. The book also contained several other translations entrusted to the 1st respondent as an employee of the appellants. They further contended that the 1st respondent has not acquired any rights in the book and even if he is the author, no copyright was acquired by him; that the appellants had the book printed at their expense at the Vani Press and the amount of Rs. 221/- paid by the plaintiff to the Press was paid by him in his capacity as an agent of the appellants. The 1st respondent reiterated in his rejoinder that the book in question was not a mere translation of the English version, but contained much more matter than is contained in the book of which it is said to be a translation, which fact was admitted by the 1st appellant in the preface of the book written by him.

3. The issues raised the questions: (1) whether the book in question was an original composition of the 1st respondent wherein he had a copyright: (2) whether the appellants obtained 900 copies of the said book from the Vani Press appropriating the sale proceeds therelrom amounting to Rs. 2,250/; (3) whether the appellants in collusion with respondent No. 2 got printed 3000 copies of the same book and obtained a net profit of Rs. 6,000/; (4) whether the rights pertaining to the book were reserved in Ma-havir Publications and were transferred to the 3rd defendant for Rs. 1000/; (5) did the appellants bear the initial costs of printing; and (6) whether the name of the 1st respondent as the author of the book was merely fictitious.

4. The trial Court held that the book 'Hyderabad Pai Police Charya' was an original work and not a translation as alleged by the appellants. As there was no evidence on behalf of the appellants, the books were held to have been sold at the price Rs, 2-8-0 per copy the price printed on the book itself, which amounts were appropriated by the appellants. It was further held that the copyright in the book vested solely in the 1st respondent and consequently, the appellants had no right to transfer the same to the 2nd respondent, that the 1st respondent was entitled to claim damages from the appellants and consequently he is entitled to the price of the said 3000 copies of the book at the rate of Rs. 2-8-0. It was also held that Rs. 221/ alleged to have been paid by the 1st respondent as agent of the appellants was not paid by him in that capacity but was paid on his own behalf, nor is the allegation that the appellants paid for the remainder of 900 copies was proved.

5. After the appeal was filed in the High Court on 10-6-1952 and when the decree was sought to be executed against the 2nd respondent (3rd defendant), he filed a suit O. S No. 94/54 on the file of the First Judge. City Civil Court, to set aside the decree against him on the ground that no summonses were served on him in the suit and not having any notice thereof the decree was not binding on him. By a judgment dated 25-10-1955 the First Judge, City Civil Court declared the decree obtained by the plaintiff in O. S 12/1951-52 which is the subject matter of this appeal, to be void and unenforceable against the plaintiff. He was accordingly restrained from executing the decree against the 3rd defendant by the issue of a permanent injunction and was directed to pay costs of the suit.

6. When this appeal came up for hearing, a preliminary point was urged by the appellants, namely, that having regard to the decree in favour of the 2nd respondent in O. S. 94/54. the decree appealed against being held not to bind the 2nd respondent, it should also be set aside as against them and the case remanded to the trial Court for fresh disposal according to law. In a detailed order D/-17-4-1958 we rejected this plea and directed the case to be posted for arguments on merits.

7. The 2nd respondent's advocate Sri Venkatachari had urged on 8-4-1958 before our brother Manobar Porsbad, J. that the 2nd respondent was neither a party, nor a necessary party to the appeal and consequently requested that his name be struck off from the array of respondents. Though the 1st respondent had no objection, the appellants contested this prayer and stated that if the appeal is dismissed against the 2nd respondent they will be responsible for bis costs which thev were prepared to pay. Having regard to this submission and On the appellants undertaking the liability to pay the costs in case the appeal was dismissed as against him, the prayer was rejected.

8. It is clear that this submission of the appellants was to enable them to take the position that the decree being not executable against the 3rd defendant, the entire decree should be set aside and the case sent back for retrial. This point, as already stated, having been rejected, it is proper and just that the name of the 2nd respondent be struck off from the array of parties as there is no decree against him which could be validly executed. The learned advocate for the appellants as well as the 2nd respondent have submitted that they had no objection to the 2nd respondent's name being struck off. We accordingly direct his name to be struck off and the appellants will pay his costs in this appeal.

9. The main contentions in this appeal are concerned with two matters: (i) regarding the 900 copies and selling the same and (ii) the publication of 3000 more copies. In so far as the first aspect is concerned, it is admitted and there can be no doubt about it that if it is proved that 900 copies were printed and paid for by the plaintiff-1st respondent, he will be entitled, whether he has a copyright in the book or not, to the amount for which ne would have sold the copies after deducting the expenses. In regard to the 3000 copies, the first respondent can only succeed if he can show that he had a copyright in respect of the book which has been infringed by the appellants, as it is admitted that these copies were got printed and published through Mahavir Publications by the appellants.

10. The question then is, did the 1st respondent merely translate the book, the pamphlet and certain articles written by the appellants, as already stated, and did he get them printed by the Vani Press and pay for the same and if so what amount. The determination of the question whether the book 'Hyderabad Pai Police Charya' is an original composition of the 1st respondent or a mere translation of the book, pamphlet and articles of the appellants, would also be necessary for a conclusion of the question of the copyright with respect to the 3000 copies printed by the appellants.

We have perused the evidence in detail and also gone through the Telugu book, as well as the English works of which it is said to be a translation and have no hesitation in concluding that the 1st respondent's telegu book is an original composition and not a mere translation of the appellant's works, Madapatt Hanumantharao, P. W. 1. wrote a preface to that book in which he significantly observed that he thought that the book was a word to word translation, but on a reading he found that it was not so, and said that although the author has drawn some materials from the English work of the appellants. he has added many things from history and other sources. Even the 2nd appellant in his introduction to this book states as follows:

'This is not merely a translation of our book 'India's Police Action Against Hyderabad'. It would be proper to say that facts have been taken from it as they are and an attempt is made to develop them to make the book more informative and interesting. Many matters which are of interest to public have been added. The efforts made by our friend Mr. B. N. Sarma to render it into a lucid style, devoid of tedium, are praiseworthy.'

Ex. 4 which is in English and in the handwriting of 2nd appellant is to the same effect. P. W. 1 in his evidence also stated that it is an original work and not a translation, but later in cross-examination admitted that he had written in the preface that the book had originally appeared in English and after that in Telegu and that he approved of the translation and that he had also stated in it that on the orders of Veerabhadrayya and Ramchandriah (Appellants) this book has been written, and that Veerabhadriah and Ramachandrayya had at his request got it written by Sarma, but was unable to say whether they had got it written by Sarma due to friendship with Sarma or under a contract with him.

There is no doubt from this evidence that this witness who is competent to speak regarding the nature and quality of the work o the first respondent, not only mentioned in his preface but also stated so categorically in his evidence that the work was an original contribution. The effect of that evidence is not any the whit lessened by certain state-ments made in cross-examination which merely admitted the truth of the observations divorced from the context and put to him. It would be unfair to treat this as an admission adverse to the 1st respondent without the whole of the preface being put to him. The 1st respondent as P. W. 2. of course, supported his case that it was an original composition and though he was cross-examined in detail he was able to sustain his assertion to show by various passages that the book was not a mere translation and that the several articles written, by him were also incorporated therein. This was also stated by P. W. 5, Dr. Chenna Reddy who stated that the articles written by the plaintiff while in Bezwada, about which he knew, were also included in the book. He also supported the case of the 1st respondent that the book is not a translation, nor an adaptation, but an original work.

The style of the author was similar to that which he adopted in his other Telugu works and the matter in the disputed book is twice as much as that contained in the English books of which it is said to be a translation. Even the 2nd appellant Ramachan-dra Rao, examined as D. W. 1, admitted that the author of the Book 'Hyderabad Pai Police Charya' had taken help from his two books, though he later says that it was a translation of his two books. He was, however, forced to state in cross-examination that the Telugu book had 38 chapters, while the English book had only 10 chapters and that in the Telugu book there were 8 or 10 chapters which were not in either of the English books. He also admitted that the article 'Police Charya' written in newspapers dated 18th June 1948 was printed at p. 133 of the book and even there the expressions were different. When the preface of P. W. 1, M. Hanumantharao, who was then Mayor of Hyderabad, and the introduction by this witness were put to him, he admitted it to be correct.

In our view, the theory put forward by D. W.1 that the whole of the work was done by an edito-rial board and that Mr. Sarma merely translated according to their directions or under their supervision,is neither supported by evidence, nor by the con-tents of Ex. P-4. We have no hesitation in findingthat this book is an original composition of Mr.Sarma written in Telugu, no doubt from the materials gathered partly from the appellants' books, andpartly from his own writings and historical facts. Byan original composition we do not mean to conveythat it is confined to a field which has never beentraversed hitherto by any other person or persons,either in respect of ideas or material comprisedtherein. Indeed such contributions are few, as mostworks must depend upon the contribution of others,using them as steps in aid of reaching a particularobject which may be original In its design and conception.

The originality which is required relates to the expression of thought, and that the work should not be copies from another work, but should be original from the author. Much depends on the skill, labour, knowledge and the capacity to digest and utilise the raw materials contributed by others in imparting to the product the quality and character which those materials did not possess and which differentiates the product from the materials used. Story in a cele-brated judgment in Frederick Emerson v. Chas Davies (Story's United States Rep. Vol. 3 p. 768) set Out the distinction between the original composition and a piracy of a copyright. Some of the points decided are stated in the head note to be 'first, that any new and original plan, arrangement or compilation of material will entitle the author to copyright therein whether the materials themselves be old or new. Second, that whosoever by his own skill, labour and judgment writes a new work may have a copyright therein unless it be directly copied or evasively imitated from another's work. Third, that to constitute piracy of a copyright it must be shown that the original has been either substantially copied or to be so imitated as to be a mere evasion of the copyright.'

Judging the book 'Hyderabad Pai Police Charya' from the aforesaid aspect it is an original composition wherein the author has exercised his skill, la-bour, knowledge and judgment in producing the book, which cannot be identified with any of the materials utilised by him therein.

11. Though the work is an original one, the question of copyright therein would depend upon the protection given by the statute. Copyright is the exclusive right of multiplying for sale copies of works of literature or art allowed to the author thereof or his assignees and in so far as British India was concerned, the statute governing these matters was by virtue of Section 3 of the Indian Copyright Act III of 1914, the Copyright Act of 191L enacted by the British Parliament, subject to such modifications as stated in the Indian Act. Under the English enactment. (Sections 1 and 2) copyright may subsist subject to the provisions of that Act in every original literary, dramatic, musical and artistic work. The book 'Hyderabad Pai Police Charya' will certainly be, as we have already held, an original work within the meaning of the English Copyright Act as applied to British India. We may, however, observe that under the English Act as applied to India, as soon as the contribution of an author satisfies the requirements of Section 2. his copyright therein Is protected without any registration. While this is so, that Act is not applicable to this case as the former State of Hyderabad had its own Copyright Act II of 1334F which would govern this case. In the circumstances, it will have to be determined whether under the Hyderabad Act the 1st respondent acquired a copyright in his book at the time when the appellants are alleged to have infringed it.

Copyright has been defined by el. (b) of Section 3 to mean the special right which any person is entitled to enjoy, of printing, publishing or otherwise utilising or turning to account, every original composition, compilation or drawing. Section 3 provides that every author shall enjoy the copyright in regard to every book registered and its subsequent editions, which no other person shall infringe. The cases in which no infringement is deemed to take place have also been set out, but these are not pertinent for our discussion. It is clear from the definition and Section 3 that an original composition or compilation is only protected if the book is registered and will enure under Section 5 during the lifetime of the author and after his death for a further period of 50 vears.

Section 8 prescribes the method of registering end preserving a copyright by providing that every author residing or carrying on business in His Exalted Highness's Dominions, may with a view to reserve the copyright of any book, apply for its registration to the office of the Judicial and General Secretary, by tendering with the application a copy of the book and a fee of Rs. 2 and stating in the application the name or title of the book, the authors name, his age, occupation and residence, the date of the first edition of the book, the name and place of the press where it was printed, and, if its copyright has been sold or. otherwise alienated to any person, the name ot sudi person, and On these particulars being furnished the Judicial Secretary who is required to maintain a register in form No. 1 annexed to the Act will cause the entry of the necessary particulars therein and to inform the author by a Fahmaishnama (memo of information) that the book has been registered and cause the publication of the fact of registration in the Jarida (Gazette). The publication in the Gazette is deemed to be conclusive proof of registration. Section 9 relates to the procedure of registering the transfer of a copyright. These registers are open to public inspection under Section 10. Section 11 provides for criminal prosecution and punishment of any person who by fraud or misrepresentation causes an entry under Section 8 or Section 9 to be incorrectly made in the register. Section 12 provides for penalties for infringement of the copyright.

A plain reading of the several provisions of the Act, to which we have already referred, leaves no doubt in our minds that a copyright in a book or drawing is only secured if it is an original compilation and has been duly registered according to the provisions of the Act. Learned advocate for the respondent, Sri Madhava Reddy, attempted to persuade us that a person has an inherent copyright in an original composition or compilation without the necessity of its registration and that registration is only meant as a conclusive proof of that right. Whatever may be the position in what was British India this argument is not warranted by the clear and specific provisions of the Hyderabad Act which makes registration a condition of acquiring a copyright in any work. The definition section cannot by itself give any protection unless that is read with Section 3 which gives protection only to a book which is registered.

Apart from the registration of the book, no tight is conferred on an author, but once it is registered, the author is deemed to acquire property rights in the book as set out in Section, to which we shall presently refer. The right arising on the registration of the book can be the subject matter of civil or criminal remedy, so that, without it the author can have no rights, nor remedies in spite ot the fact that his work is an original one, The infringement of the copyright so registered, which in Urdu is expressed as a theft, can most appropriately be said to be based on the moral principle, as observed by Lord Atkinson in Macmillan and Co. v. Cooper, AIR 1924 PC 75 dealing with Section 2 or the Copyright Act of 1911 as resting on the eighth commandment 'Thou shalt not steal.'

A person whose copyright is protected cannot only have recourse to criminal Courts but also sue in a civil Court under Section 20 to obtain possession of such copies infringing his right which is deemed to be a right of property or cause them to be destroyed or obtain an injunction or call for an account thereof. This remedy as is evident from the explanation to Section 20, is not an alternative remedy, but is an addition to the remedy which he may have in cr-minal Courts, for, the compensation if any awarded to him by any criminal Court is to be taken into consideration in the civil Court.

12. In this case the suit for infringement of the copyright was filed on the 16th March 1950 and the application for registration of the copyright was made on 7-11-1950 and was registered on 17-11-1950. vide Ex. 8, letter dated 17-11-1950 of the Government in the Home Department.

It would appear from Ex. 4 dated 23-1-1950. a letter from the Home Department to the respondent that he was asked to make an application on the prescribed form and to attach two copies of the book, on receipt of which he will be informed of the registration. It is probably in pursuance of this letter that he made a formal application on 7-11-1950 and the book was registered on 17-11-1950 as stated in Ex. 8. There is, therefore, no doubt from the above fact that the book in which copyright is claimed was registered long after the suit was filed, and consequently he had no copyright in the book, nor can there be any infringe- ment thereof by the appellant with repect to the 3000 copies.

The learned City Civil Judge did not consider this aspect of the case and the decree of Rs. 6000 awarded by him for the infringement of the copyright of 3000 books at Rs. 2 per book after de- ducting 0-8-0 as printing charges per book, cannot be sustained. The appellants will, therefore, succeed with respect to this amount, Though this is so, the learned advocate for the respondent coo-tends that we are entitled to take the subsequent Facts into consideration for issuing a permanent injunction. In our view, though the copyright of the 1st respondent is reserved from the date or its registration, which is after the suit is filed, there being no allegation that the appellants are likely to infringe that right on and from that date, the question of issuing an injunction does not arise and would not be warranted.

13. The only other question that remains is whether the order for the printing of 1000 copies was placed by the respondent and paid lor by him as alleged. The respondent P. W. 2, admitted in his evidence that he and Ramachandra Rao together have gone to the Vani press to place an order for the publication of this book, because the proprietor was a friend of the 2nd appellant and he did not know him. That is the reason why he took the 2nd appellant with him. He was regularly going there to read the proofs. The witness says that the Vani Press gave him 100 copies and that he paid for them. He also had the tide page printed at the Modern Printers for which also ne paid. He produced Ex. 3 which Is a bill in his name for Rs. 118-8-0 out of which a sum of Rs. 90 was paid leaving a balance of Rs. 28-8-0. That bill was given by the Modem Printing House on 11-12-1949 and shows that Rs. 24 were charged for printing of 1000 titles in double colour and creasing and Rs. 94-8-0 for art cards. The witness also produced Ex. 2 a receipt given by the Vani Press on 21-6-1949 to the respondent as having received Rs. 221 from him as a running payment towards the printing of a book 'Police Action against Hyderabad' in, Telugu.

These two receipts Exs. 2 and 3 show that a sum of Rs. 311 was received from Mr. Sharma. The appellants have produced Exs. A-1 and A-2 and A-3. A-1 is dated 20-5-1949 and shows that 19 reams of demy paper were purchased from Govind Venkatesh, a paper merchant for Rs. 323. Ex. A-3 dated 3-10-1950 is a receipt given by the Modern Printing House towards bill No. 25 for Rs. 118-8-0. Ex. A-3 is dated 4-10-1950 given by the Proprietor, Vani Printing Press which is as follows:

'as per order placed by Mr, V. Ramachandra Rao for printing Telugu version of his book 'Police Action against Hyderabad' ..... payments towards. printing and binding of the above book have been received as below:

Advance 100.0-0 by Mr. V. Ramachandra RaoO.S.No. in person.

' 221-0-0 Through Mr. B. N. Sharma.121-0-0 by Mr. V. Ramachandra Rao in person.336-0-0 do.

Total Rs. 178-0.0

The last payment clearing the balance was received on 11-8-1949.'

14. Ex. A-3 is obviously obtained after the lull payment was made and probably for purposes of the suit. Ex. A-2 which is for Rs. 118-8-0 must have also been obtained after, the payment of the balance of Rs. 28-8-0 which was shown as outstanding in bill No. 373, Ex. 3 which is in the name of the respondent. It is the case of the respondent that he published this book by obtaining loans and said that he got Rs. 600 from Venkata Krishnayya and had the book published, but that Venkata Krishnayya was not produced in support of this case. He admitted that in his pauper application he did not say that he had an income of Rs. 50 to Rs. 60 from Mahavir Publications of which he claimed to be the owner. D. W. 1, Ramachandra Rao, says that the balance of, the printing expenses was paid by one Narayana Singh, and that he purchased the paper from Govind Venkatesh a paper merchant. He further says that he had placed the order with the Modern Printing House for which he paid the money, and obtained Ex. A-2 the receipt and that he had paid the Vani Printing Press as per Ex. A-3.

He further says that he was in charge of the editorial board, that he had at one time sent Rs. 200 through Mr. Sharma towards the printing charges, out of which 100 books were obtained by him, that the remaining 900 copies received by the witness were sold and he made a profit of Rs. 300 by their sale and that this amount was distributed among the people who took part in the fight for freedom in fulfilment of the object with which the book was published. In cross-examination he admitted having taken Mr. Sharma along with him at the time when he placed the order for printing of the book with the Vani Printing Press. D W. 3 Shanker Rao, who is the manager of the Modern Printing House says that the title page was printed at his press, the expenses for which were paid by Ramachandra Rao (Rs. 118-8-0) for which Ex. 2 is the receipt. He also proved Ex. 3.

15. From this evidence one thing is clear namely that the tota-1 amount paid for the printing of the book as per Ex. A-3 is Rs. 778 cost of the paper was Rs. 323 (Ex. A-1] and the printing of the title page as per Exs. 2 and 3 is Rs. 118-8-0. The total of these items for the printing of the book is Rs. 1219-8-0. of which a sum of Rs. 221 and Rs. 90 were paid by the respondent as is evident from Exs. 2 and 3 which are in his name. Though D. W. 1 says that he paid these amounts either directly or through Mr. Sharma, he has not summoned the proprietor of the Vani Printing Press to prove the arrangement which he had with him for the publication of this book and hence it is fair to assume that they were paid by the respondent. With respect to the Rs. 90 paid to the Modern Printing House, the proprietor of that press states that Rs. 118-0-0 was paid by Ramachandra Rao. while the receipt is in the name of Veerabhadra Rao, and the bill in Sharma's name.

Obviously the proprietor does not know who paid the Rs. 90 as he himself admits that the bill in Sharma's name was given by his foreman. No doubt the bills for these amounts being in the name of Sharma is not conclusive of the fact that the money belonged to him. But as there is not sufficient evidence to establish that this money was advanced by Ramachandra Rao, except for his mere statement, we have to presume that it is the respondent who advanced money for payment of Rs. 311. He has not produced any receipts for the balance thereof, nor has he led any evidence to show as alleged by him that he had borrowed this amount from Venkata Krishnayya.

16. The defendants-appellants' case is that the plaintiff was their agent and that he was not in a good financial condition and that in view of the fact that he had taken part in the freedom movement, he requested that he be allowed to publish the book in his name, so that he can derive the benefit of future publications. The appellants accepted this suggestion as they wanted to benefit him. They further contended that the respondent took 100 copies without their knowledge and as soon as they got to know of this, they took charge of the 900 copies on behalf of the Mahavir Publications.

In support of the fact that the book was Published by the Mahavir Publications, D. W. 2 Raja-gopalachari was produced. He speaks to an association being formed under the name and style of Mahavir Publications consisting of nine or ten persons, of whom Ramachandrarao, Veerabliadrarao, Narasimharao himself, Sharma and others were members. The name given to this association is in memory of one of the martyrs who had given his life in the freedom struggle. He produced a Minutes Book which also contained rules and says that this was the first and the only book that they had published, after which the association became defunct sometime in May 1949. He says that the money required for the publications was furnished by one S. N. Singh who, however, has not been produced in evidence.

It appears to us from a perusal of the evidence that the intention of the appellants as well as the respondent was to publish this book as a record of the history of Police Action and to utilise the amount to help all those who had suffered. The respondent has not proved that he advanced the entire amount for the publication of the book, nor could it be said that he was in a position to do so. In the circumstances, whether the amount was advanced by S. N. Singh or not, it is established that the balance of the amount was paid by the appellants.

17. In the result, the respondent not having a copyright in the book on the date of its first publication and having regard to the object with which the book was published, he will only be entitled to the return of the money paid by him.

From this amount, the profits that could have been made by him by the sale of the 100 copies will have to be deducted. On the evidence of D. W. 1 a profit of Rs. 300 was made by the sale of 900 copies and at this rate the profit on the sale of 100 copies would be Rs. 33-5-3. Deducting this amount from Rs. 311 the respondent would be entitled to a decree for Rs. 277-10-9.

18. The appeal is partly allowed and the respondent's suit is decreed for Rs. 277-10-9 with costs in the lower Court and in this appeal. The appellants will be entitled to proportionate costs in this appeal to the extent of the decree set aside as also in the trial Court. The appellants will also pay the costs of the 2nd respondent, as already stated. The court-fee may be recovered from the plaintiff.


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