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Khemraj Shrikrishandas Vs. Garg and Co. and anr. - Court Judgment

LegalCrystal Citation
SubjectMedia and Communication;Intellectual Property Rights
CourtDelhi High Court
Decided On
Case NumberFirst Appeal No. 88 of 1974
Reported inAIR1975Delhi130; ILR1975Delhi251
ActsTrade and Merchandise Marks Act, 1958 - Sections 27(2)
AppellantKhemraj Shrikrishandas
RespondentGarg and Co. and anr.
Advocates: Anoop Singh,; N.K. Anand and; I.D. Garg, Advs
Cases ReferredKaviraj Pandit Durga Dutt Sharma v. Navaratna Pharmaceutical Laboratories
the case discussed the infringement of the copy right of the plaintiff by the defendant under sections 13, 14 & 51 of the copy right act, 1957 - it was held that the defendant could not contend that it had sufficiently indicated on the infringing work that it was not of the plaintiff - a proof was required from the plaintiff to sue infringement. - - 1 as well as by defendant no. 2, who is author as well as the owner of the copyright and that he had already compiled, published and sold in the market all copies of the firs edition of the panchang for the samvat 2031 and that an injuction would cause irreparable injury. the learned additional bistrict judge by the impugned order has held that the plaintiffs did not have a prima jacie case, as they had claimed exclusive copy-right which.....b.c. misra, j. (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.....

B.C. Misra, J.

(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 & 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 then Panchang is known as 'Mani Ram Panchang, Ma,nav Panchang and Shri Vallabh Mani Ram Panchang'. The get up, layout, shape and design of the Panchang have, according to the plaintiffs, acquired a wide reputation and goodwill by long user and their sales have been to the tune of Rs. 50.000.00 per year. They have contended that the defendants by publishing the Panchang in dispute are passing off their goods, as the goods of the plaintiffs and that the title printed by them is deceptively similar to the plaintiffs and that the defendants be restrained from publishing or selling the same The suit has been contested by defendant No. 1 as well as by defendant No. 2.

(4) During the trial of the suit, an application under Order 39 Rules I and 2 read with Section 151 of the Code of Civil Procedure was filed by the plaintiffs for the grant of an ad interim injunction which was supported by an affidavit. The same had been opposed by the defendants. Defendant No. 1 has contended that the plain tiffs did not have any copyright in the Panchang and that he had himself acquired the copyright from defendant No. 2, who is author as well as the owner of the copyright and that he had already compiled, published and sold in the market all copies of the firs edition of the Panchang for the Samvat 2031 and that an injuction would cause irreparable injury. He has also contendcd that the plaintiffs had come to the court very late. The reply of defendant No. 1 is supported by an affidavit. The application has also been contested by defendant No. 2 and he has taken up the plea that the author of the Panchang was Shri Mani Ram Shanna who was his grand father and that his copyright in the Panchang had not been assigned to the plaintiffs, but the same has been inherited by the defendant No. 2. It is significant that defendant No. 2 claims the inheritance of copy-right from his grand father Mapi Ram Shanna, while his own father Ram Lal Sharma who would be the natural next heir of Pandit Mani Ram Sharma is still alive. The parties have filed copies of various Panchangs and the plaintiffs have filed a number of documents relating to the orders and supplies of the Panchang and the correspondence they have had with the defendants. The defendants have filed a photostate copy of a title of the Panchang of 1892 A.D. and a copy of the receipt given by the second defendant in respect of remuneration received by him. He has also filed a receipt for Rs. 2.00 , which is said to have been sent to some Registrar. The learned Additional Bistrict Judge by the impugned order has held that the plaintiffs did not have a prima jacie case, as they had claimed exclusive copy-right which they have failed to establish and that the balance of convenience lay in favor of the defendants, who had already published and sold some copies and, thereforee, the learned Judge refused the injunction, but directed the defendants to keep accounts of the sales of the Panchang, Feeling .aggrieved by this order, the plaintiffs have filed this appeal.

(5) I have heard the counsel for the parties at considerable length. In my opinion, the learned Additional District Judge has fallen into an error in not applying the correct principles of law to the case. The learned Judge has failed to appreciate that the case of the plaintiffs was not of infringement of a copy-right. The action that they had instituted was for passing off the goods. 'Mark' is defined by section 2(l)(j) of the Trade and Merchandise Marks Act, 1958 (hereinafter referred to as the Act), as a device, brand, heading, label, ticket, name, signature, word, letter or numeral or any combination thereof while 'trade mark' is defined by clause (v) of the said section 2(1). Section 27 of the Act prescribes that no person shall be entitled to institute any proceeding to prevent, or to recover damages for, the infringement of. an unregistered trade mark. Sub-section (2) of the said section provides that nothing in the Act shall be deemed to affect rights of action against any person for passing off goods as the goods of another person or the remedies in respect thereof. Section 105 confers Jurisdiction on the District Court to try suits for passing off. Clause (c) of the said section provides for suits for passing off arising out of the use by the defendant of any trade mark which is identical with or deceptively similar to the plaintiff's trade mark, whether registered or unregistered. Section 106 provides that the relief which a court may grant in any suit for infringement or for passing off referred to in section 105 includes an injunction and at the option of the plaintiff, either damages or an account of profits, together with or without any order for the delivery-up of the infringeing labels and marks for destruction or erasure.

(6) Kerly in Law of Trade Marks and Trade Names, 10th edition, in paragraph 16-02, on page 362, has stated that it is an actionable wrong for the defendant to represent, for trading purposes, that his goods arc those or that his business is that of the plaintiff and it makes no difference whether the representation is effected by direct statements, or by using some of the badges by which the goods of the plaintiffs arc known to be his, or any badges colourably resembling these, in connection with goods of the same kind, not being the goods of the plaintiff, in such a manner as to be calculated to cause the goods to be taken by ordinary purchasers for the goods of the plaintiff. Kerly has relied upon an observation in Frank Reddaway v. George. Barham (1896) A.C. 1990, where Lord Halsbury L.C. observed at page 204 that the principles of law may be very plainly slated, that no body has any right to represent his goods as the goods of somebody else and how far the use of particular words, signs, or pictures, docs or does not come up to the proposition enunciated in each particular case must always be a question of evidence. In the same decision Lord Hersehell observed on page 209 that if the defendants were entitled to lead purchasers to believe that they were getting the plaintiffs' manufacture when they were not and thus to cheat the plaintiffs of some of their legitimate rights, it would be regretable to find that the law was powerless to enforce the most elementary principles of commercial morality and that the principle which was applicable to that class of cases had been laid down .by Lord Kingsdown in Leather Clolh v. American Leather Cloth Co. I I H.L.C. 538 (^) thus 'the fundamental rule is, that one man has no right to put off his goods for sale as the goods of a rival trader and he cannot, thereforee, be allowed to use names, marks, Ictlcrs, or other indicia, by which he is selling the manufacture of another person.

(7) Copingcr on Copyright, 1llh Edition, in paragraph 230, on page 108., stated that the titles to books, newspapers, and periodicals, lhough often coming before the courts on the question of copyright therein, are not generally in themselves the proper subjects of this right, that it is difficult to say that there is any original literary work in the formation of one or two words into a title and that the words into a little and that the words or phrase chosen may be original in their application to the subject-matter of the work to which they arc applied. Further (in paras 233, 235 on pages 110 and III) the learned author proceeds to say that, titles of books arc, in certain circumstances, protected from imitation by means of a 'passing off' action. The action for 'passing off' lies where the defendant has represented to the public that his goods or business are the goods or business of the plaintiff. A defendant may make himself liable to this action by publishing a work under the same title as the plaintiffs, or by publishing a work where title and 'get up' so resemble that of the plaintiffs to deceive the public into the belief that it is the plaintiff's work. In all these cases the plaintiff has to prove that his publication has been in the market long enough to acquire public reputation and secondly title used by the defendant is calculated to deceive the public. A reputation or goodwill can be built up by substantial sales within a short period of time. Mere intention to deceive is not sufficient, there must be grounds for apprehending actual deception. But it is not necessary to establish that any one, as a result of the passing off, is induced to deal with the defendant in the mistaken view that he was dealing with the plaintiff. Copinger has on page 133 given a large number of instances, where injunctions in respect of title were granted or refused, e.q. they were granted in 'The Wonderful Magazine', 'The wonderful Magazine, New Scries Improved', 'Minne', 'Minie Dale', 'London Journal', 'Daily London Journal', etc. They were refused in the cases of 'Magazine of Fiction'. 'Monthly M.agazine of Fiction', 'Post Office Directory of the West Riding of Yorkshire', 'The Post Office Bradford Directory', etc.

(8) A reference may also be made to a decision of the Chancery Division in Melder v. Wood, (1878) 8 CD 606 In this case, the plaintiffs were the publishers of a work instituted 'Hemy's Royal Modern Tutor for the Pianoforte', a revised edition of which had been brought out in 1867, and which was well known and hsd an extensive sale, but was not so registered as, to secure copyright. In 1874 the defendant employed Hemy to re,vise an old work, intitled 'Jousse's Royal Standard Pianoforte Tutor'', which had formerly been in high repute, but had entirely fallen into disuse. This revised work the defendant brought out under the. title 'Hemy's New and Revised Edition of Jousse' Royal Standard Pia noforte Tutor', the word 'Hemy's', both on the outside of the book and on the title-page, being printed in much larger and more conspicuous type than any other of the words. The court of Appeal held that the plaintiff was entitled to an injunction restraining the defendant from offering his work for sale with its present form, title-page, and cover, or any other form, title-page, or cover, calculated to deceive persons into the belief that it was the plaintiff's work. In John Haig & Company Limited v. Forth Blending Company Lid. and W. R. Paterson Ltd., 1.970 Reports of Patent, Design and Trade Mark cases 269, the court found that for many years prior to 1952 the petitioners had sold a brand of whisky in distinctively shaped bottles, technically called 'Three pinch decanters', but which had come to be known popularly as 'Dimple' bottles. This brand was commonly asked for in public houses as 'Dimple' whisky- In 1952 the respondent commenced selling whisky nut distilled by the petitioners in bottles of the same shape though the labels were wholly different from those used by the petitioner. The court held that in adopting these bottles the respondents hoped to obtain some advantage from the connection of 'Dimple' bottles with the petitioner's whisky. In these circumstances, the court granted an injunction restraining the respondent from selling the whisky not blended by the petitioners in 'Dimple' bottles for consumption in the United Kingdom.

(9) The Supreme Court of India in Rustom and Hornby Ltd. v. Zamindara Engineering Co., : [1970]2SCR222 . elucidated the difference between an action for infringement of trade mark and for pausing off. It observed that action for infringement is a statutory right and it is dependent upon the validity of registration and other statutory conditions. On the other hand, the gist of passing off action is that A is not: entitled to represent his goods as the goods of B. It is enough that the get up of B's goods has beconic distinctive of them and there is a probability of confusion between them and she goods of A. It is not necessary to prove actual deception, or actual damage, nor to prove the knowledge or intention to deceive. The court laid down that issue in an action for passing off is 'whether the defendant is selling the goods so marked as to be designed or calculated to lead the purchaser to believe that they are the plaintiffs goods'. On tlic other hand, the issue in, infringement action is 'whether the defendant is using a mark which is the same or which is a colourable imitation of the plaintiffs registered mark.'

(10) The distinction between the two actions was vividly brought out by the Supreme Court in an earlier decision Kaviraj Pandit Durga Dutt Sharma v. Navaratna Pharmaceutical Laboratories, : [1965]1SCR737 thus:

'If the essential features of the trade mark of the plaintiff have been adopted by the defendant, the fact that the get'

(11) In my opinion, the correct legal position is this: Action for infringement. of a trade mark or copyright is a statutory remedy and in. pursuing it, the plaintiff must prove his title and exclusive right to use the trade mark (or work) in question and further establish that the defendant has infringed the same by identical or deceptively similar or colourable imitation of it. In such a case. if otherwise cstablished, it is no valid defense on the part of the defendant that it has been sufficiently indicated on the infringing goods that they arc not of the plaintiff, but of the defendant. On the other hand. aclion for. passing off is a common law remedy and its gist is deceit and not infringeinent of a right to cxclusive user. In such an action, the plaintiff may, if so advised prove his title to the exclusive use of the trado mark (or copyright) but he need not do so. What is. however. essential for the plaintiff to cstablish are (a) distinctive features : (2)substential user wide reputation. The law casts as obligation on the defendant not i0 pass off his own goods (or work) as if they had been produced by the plaintiff and the court will enforce this obligation. In such a case, the defendant can escape the liability by showing that his goods (or work), though similar, distinctly indicate that they do not originate from the plaintiff, but have been produced by the defendant. Element of deceit: may cxist in. both kinds of action, but it is of the essence of the passing off action. Actual deception is not required to be proved, but reasonable ground for apprehending deception must exist.

(12) In the instant: case, the plaintiff's user of the name and title spread over a period of 80 years past is fully established. They have stated that their sales of the Panchang have. been to the tune Rs. 50,000 a year, which shows that a considerably large number of copies have been sold. With regard to the distinctiveness of the title, it would be clear that plaintiff's almanac contains pictorial devices in a particular style of the Sun god, followed by Saraswati'. Ganesh, Vishnu, Shankar, Garud, Billav to whom. salutations have been made at the top, besides nine other pictures have been depieled in a particular style. while, the name of Shri Mani. Ram Sharma is mentioned m a block it is also interesting to note that reference in a block in. the centre is made to the Raja of Sikar under whose benediction the Panchang has been published. Below it is printed the name oi' plaintiff's press as the printer and publisher possessing the entire rights of reproduction. At the outside of the second page of the title are given the twelve rashis or planets in a device producing particular pictorial cffects and inside of ;hc cover contains a photograph, of late Pandit Mani Ram Sharma. in the middle of the same page, there is a reference to Raja of Sikar and the name of the press.

(13) In the Panchang produced by the defendants, which is marked 'B' before me, the first page of the title is exactly similar excepting the necessary change in the Samvat and the year. In the place of the name of the printer and publisher (Venkateshwara Press), it may be noticed that the name of the defendants has not been mentioned, but what lias been mentioned is that all rights of publication have been reserved and the genuine Panchang must be purchased after verifying the photo of Shri. Vallabh Mani Ram. At the outside of the second title page in a block, after referring to Kalyan Singhji Bahadur Raja Sikar and mcntioning the the name of Vallabh Mani Ram Sharma, the name of Nand Kishore Shastri has been added with the expression that solo agent is Garg & Co., Knari Baoll, Delhi. In the inside of the second title page, while the photograph of Mani Ram and the calculations of the day a.nd night have been maintained, the matter at the bottom has been changed. The colour scheme and the arrangement of the title remain the same.

(14) If is, thereforee, obvious that. the Panchang published by the defendants is almost identical and certainly deceptiveiy similar to the plaintiff's Panchang and is clearly intended to convey the impression that it is the same Panchang which had been published by the plaintiffs. To further clarify the matter, there is an advertisement under the heading 'Good News' in a hand bill printed by Garg & Co., Khari Baoli, defendant No. 1, which freely translated reads 'All book-sellers, brethren, were being informed with pleasure that Vallabh Mani Ram Panchang (which had previously been published from Bombay) would thereafter be published by us and that Vallabh Mani Ram Panchang for Samvat 2031 has been printed and please send us valuable orders for the same. Its price is given as Rs. 60 per 100 or Rs. 600 per thousand'. This. shows that the defendants were dearly intending to lead the buyers and the customers into a belief that the Panchang published by the defendants was. the same that had been published by the pla.intiffs.

(15) It is further interesting to notice that in the inside pages or the Panchang containing the subject matter, it is written in the Panchang of the plaintiffs that the material had been provided by Shri Hardcv Sharma. Similarly, in another page, it had been written that calculations had been prepared by Jyotishi Hardev Sharma. In the intervening page the local time of Bombay is given under the toot-note that 'in Bombay when auspicious hour is to be calculated. the timings given of Ramgarh are not helpful and so the timings old Bombay have been given.' All these have exactly been repeated in the defendants' Panchang. it is not the case of the defendants that they have acquired by inhcritcncc or otherwise any rights from Pandit Hardev Sharma. They have laid their claim, only through Nand Kishorc. But in the Panchang, they have unauthorisedly also copied the results of labour of Hardev Sharma and the timings of Bombay have been utilised while they would be expected to give the timings of the place where their Panchang had been printed and was likely to be sold. Under the circumstances, the counsel for the plaintiff-appellants rightly submits that there is not the slightest doubt that he defendants have published their Panchangs to deceive the public into belief that they are purchasing the Panchang which had been published by the plaintiffs. These would prima fade salish the ingredients of action for passing off and would show that the plaintiffs have a prima fade case and the learned Additional District Judge lias erred, in holding to the contrary.

(16) 'THE defendants have strongly relied upon the tact that the Punchang was being prepared for the plaintiffs by the grandfather of defendant No. 2 and so on the expiry of any arrangement with the grandfather, the right would devolve on defendant No. 2. There is a fallacy in the submission. Sections 17 and 18 of the Copyright Act, 1957 show where the copyright vests. If a work is done by an author for a consideration for a publisher, the copyright in it would normally vest in the publisher subject to any contract to the contrary, as is provided by section 17 of the said Act. It can be legitimately said that this section 18 has been inserted in the Act oi 1957, but the rule of law has been the same even prior to this statutory provision. Secondly, as provided by section 18. the copy- right could be assigned, and if it is so done, it would be vested in the purchaser. This would show that if Pandit Mani Ram had any copyright, it must have been vesting in the publishers. But. it is not at all necessary to express any opinion on this question for thc time being. The reason is that the copyright, if any. which vested in Pandit Mani Ram would really relate to the calculations compiled in the Panchang made from year to year, which were likely to be different every year. Pandit Mani Ram has never claimed any copyright in the get up, style, design and title, which would obviously be vesting in the publisher and nothing has been brought on record to show that Pandit Mani Rani claimed any copyright in the design or get up or retained the same with him which could pass by inheritance. Moreover, what clinches the issue finally is the provision of section 22 of the Copyright Act, which reads as follows:

'22.Term of copyright in published literary, dramatic, musical and artistic works.-Except as otherwise hereinafter provided, copyright shall subsist in any literary, dramatic, musical or artistic work (other than a photograph) published within the lifetime of the author until fifty years from the beginning of the calendar year next following the year in which the author dies.' Pandit Mani Ram died in 1905 as contended by the plaintiffs (or in 1909 as contended by the defendants), at all events, he died more than 50 years ago. Considered from any point of view, after 1960 copyright in the work or Panchang of Mani Ram, if any, could not subsist in the hands of his legal heirs or in the hands of defendant No. 2. On this proposition of law, the counsel for both the parties are in agreement. Furthermore, Pandit Mani Ram had a son, who is the father of defendant No. 2 and if any copyright, were still subsisting and had to pass by inheritance, it would be inherited by the second defendant's father and not by him. At all events, considered from any point of view, defendant No. 2 did not possess any copyright in the work of Pandit Mani Ram in the year 1973 or 1974, when he is purported to have assigned it to defendant No. 1, which assignment must be held to be void and ineffective.

(17) Lastly, the counsel for the defendant submits that the plaintiffs have themselves accepted defendant No. 2 as the author of the copyright vide his agreement of 1961 copy of which has been placed on record. The submission of the counsel does not have any force. The said assignment of copyright is clearly confined to Ganit (or calculations) made for a period of 10 years from Sanivat 2021 to 2030. There is no doubt that if any calculations had been made by Nand Kishorc, second defendant, he had a right to assign them to the plaintiff or to the defendants after the expiry of the said contract. But this is not the question arising before me. The question in the appeal relates to copyright purporting to have remained in Pandit Mani Ram, and neither the plaintiffs nor the defendants can legally claim any copyright in Pandit Mani. Ram's work fifty years aftcr his death.

(18) It is significant to notice and I wish to emphasise that the parties before me are not feeling aggrieved with regard to publication of the calculations that defendant No. 2 has which. which he had made for the benefit of defendant No. 1 and which constitute the subject matter of the Panchang. The defendants are free to publish them if otherwise legally entitled. The plaintiffs have not raised a dispute about them. The grievance of the plaintiffs is confined to the title, get up and the arrangement and style, and their action is for passing off. I am, thereforee, of the opinion that the plaintiffs have succeeded in establishing a prima facie case.

(19) The considerations which must weigh with the court, in granting or refusing the injunction arc well established. I find that the injury to the plaintiffs would be almost irreparable as their sales arc alleged to be over Rs. 50,000 a year and they have been in the trade for a period of more than 80 years and have obviously acquired a wide reputation in the title and get up and once it is injured or destroyed, no amount of damages can compensate them. On the other hand, the defendants have recently started the publication only since 1973, for the Sainvat 2031 and thereafter during the pendency of the suit for the year 1975-76. They would, thereforee, be not liable to suffer any great injury. Moreover, the defendant No.1 has been publishing other Panchangs and his business may not suffer. Again apart from the get up, the most valuable material of the Almanac, consists of calculations and predictions published in the body of the Panchang and the defendants are not being restrained from printing, publishing or using the said material. It establishes that the balance of convenience lies in favor of the granting of injunction against the defendants. The order of the court below must, thereforee, be reversed.

(20) Defendant No. 1 has stated that he has paid a substantial sum of money to defendant No. 2 in order to acquire the rights in the Panchang. Mr. Garg explains that although he has not filed any agreement, he has filed copies of the receipts, which show that defendant No. 1 has paid to defendant No. 2 a sum. of Rs. 2500 out of which Rs. 2000 arc consideration for the Sainvat 2031 and Rs. 500 as considcration for the Samvat 2032. This shows that defendant No. I has only paid a sum oF Rs. 2000 to defendant: No. 2, which includes the labour and skill of making the calculations and the predictions in the Panchang as a whole and only a part of the consideration was paid (if the contention of the defendants be true) for the title of Panchang. This further shows that the injury by injunction if caused to the defendant is not likely to be of any appreciable value. Defendant No. 1 claims to have been printing, publishing and selling other Panchangs as well. On the other hand, the plaintiffs arc not publishing any other Panchangs and so failure lo grant the injunction will cause such a great injury to the plaintiffs as cannot be compensated by damages and if their reputation is once spoilt or allowed to be destroyed, it will be difficult to resurrect the same. The plaintiffs have come to court, at the earliest.

(21) It is, thereforee, a lit case where ad interim injunction must be granted, but assurance may be made for payment of compensation to the defendants in the event the suit of the plaintiffs fails. The loss that the defendants may suffer is only the amount alleged to have been paid by defendant No. 1 to defendant No. 2 for acquisition of the rights m the title and compilation, which comes to Rs. 2000 per annum for both. The substantial portion of the Panchang is really the compilation. In these circumstances, I am of the opinion, that it would just and equitable if the plaintiffs arc directed to deposit a siim of Rs. 150 per month of P..S. 1800 per annum on account to compensation for the period from the date of this order till the decision of the suit, which may be paid to defendant No. 1 in case the suit of the plaintiffs fails. Mr. Anand, counsel for the plaintiffs undertakes to deposit the said amount in the court below within one month. The amount will be deposited by 17th April, 1975. Should the trial last longer, the plaintiffs would further deposit the amount at the same rate till the conclusion of the trial. This would be for the period from today. But with regard to the intervening period, i.e. between today and the date of the institution of the suit, no order is made herein.

(22) Under the circumstances, the appeal is allowed, the order of the court below is reversed and the application of the plaintiffs under Order 39 Rules I and 2 read with section 151 of the Code of Civil Procedure, is allowed and the defendants I and 2 and their servants, agents and representatives are restrained from printing, publishing, selling or offering for sale directly or indirectly dealing with Panchang (Almanac) deceptively similar or colourable imitation of the plaintiffs' Panchang by adoption of identical get up, lay-out, design and colour scheme, etc. or from using the name or expression Manav Panchang, MANf Ram (PANCHANG) or Shri Vallabh Mant Ram (PANCHANG). Respondents Nos. I and 2 will pay costs of this appeal to the appellants. The appeal stands disposed of. accordingly.

(23) It may be mentioned that the observations made in this order are tentative and will not prejudice the trial of the suit on its merits according to law.

(24) The parties appearing before me through their counsel are directed to appear betore the court below on 3rd April, 1975 for further proceedings.

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