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Om Prakash Garg Vs. Hans Raj Sharma - Court Judgment

LegalCrystal Citation
SubjectIntellectual Property Rights
CourtDelhi High Court
Decided On
Case NumberCivil R. Appeal No. 346 of 1971
Judge
Reported in1972RLR15
ActsCode of Civil Procedure (CPC), 1908 - Order 39, Rule 2
AppellantOm Prakash Garg
RespondentHans Raj Sharma
Advocates: N.D. Bali,; K.N. Kataria and; P.R. Monga, Advs
Excerpt:
.....it would be passed on the basis of the accounts .that might be rendered. the trial court was bound to pass a final decree as soon as the requirements of the preliminary decree were to be found..........of accounts before him. the trial court was to consider the report, hear the parties and pass a final decree in accordance with the preliminary decree. (3) appeals were preferred against the preliminary decrees but the same were dismissed by the high court. (4) the application, which is the foundation of this litigation, was preferred by the plaintiff-decree-holder under the date 16th of august, 1963. it is significant that the application does not mention any provision under which it was sought to be urged. the plaintiff said in that application that the trial court had on the 24th of august, 1961, passed a preliminary decree for accounts and that shri roshan lal tandon, advocate, had been appointed as a commissioner to go through the accounts. it was alleged that the commissioner.....
Judgment:

Pritam Singh Safeer

(1) This order will dispose of Civil Revision Petitions Nos. 346 and 553 of 1971. Both of these petitions are directed against an identical order passed by the trial court on the 8th of December, 1970.

(2) The suits being Nos. 16 and 31 of 1958 were instituted by Shri Hans Raj Sharma impugning the publication by the defendants, which constituted the infringement of the copy-right acquired by him in respect of a book which he had later on published under the name of 'New Course Sharma Guide to Complete English', in the plaint the plaintiff detailed the circumstances disclosing the alleged infringement. Similar Preliminary decrees were passed in both the suits. The ultimate part of these preliminary decrees with which the impugned order became concerned is ;- 'Furthermore a decree for accounts relating to printing and publishing and sales of the 8th special abridged edition of the Sharma Guide to General English and its reprints and for recovery of the amount received by defendants 1 and 2 by the sale of the said work and also for accounts relating to the printing, publishing and selling of the unbridged edition of Sharma Guide, vig. New Course Sharma Guide to Complete English, and for recovery of the amount received by defendants Nos. 1 and 4 by the sale thereof is granted in favor of the plaintiff.' It may be noticed that suit No. 31 was concerned with a different book. The trial court appointed Shri Roshan Lal Tandon, Advocate, as the commissioner, who was to go into the accounts and submit a report showing the result of the rendition of accounts before him. The trial court was to consider the report, hear the parties and pass a final decree in accordance with the preliminary decree.

(3) Appeals were preferred against the preliminary decrees but the same were dismissed by the High Court.

(4) The application, which is the foundation of this litigation, was preferred by the plaintiff-decree-holder under the date 16th of August, 1963. It is significant that the application does not mention any provision under which it was sought to be urged. The plaintiff said in that application that the trial court had on the 24th of August, 1961, passed a preliminary decree for accounts and that Shri Roshan Lal Tandon, Advocate, had been appointed as a commissioner to go through the accounts. It was alleged that the commissioner had not gone through the accounts and on that basis it was prayed that he might be removed. The ultimate prayer contained in paragraph 5 of the application was:-

'IT is further submitted that as the matter has already taken about two years unnecessarily, a decree may be passed in favor of the petitioner on the basis of the accounts (a copy of which is enclosed herewith) which was submitted from time to time by the defendants.'

The reference in the aforequoted prayer-paragraph was to the accounts which the defendants to the two suits continued to file in court in compliance with an order by which an application made by the plaintiff under order 39, rules land 2 of the Civil Procedure Code was disposed of. Refusing to restrain the defendants from publishing and selling the books, the trial court had directed that while continuing the sales the defendants might file in court every three months a statement of account showing the sales made by them. Through the application, mentioned above, the plaintiff, while pleading the preliminary decree, urged that the final decree be granted to hin on the basis of the statement of account which the defendants had been filing after every quarter. The said application dated 16th of August, 1963, was clearly misconceived. The trial court should have refused to issue process on its institution. The trial court should have done that because it had no jurisdiction to pass any final decree except in accordance with the preliminary decree. The preliminary decree clearly provided that it would be passed on the basis of the accounts . that might be rendered. The accounts were to be rendered before the commissioner appointed for the purpose. Without receiving the rendition of accounts, without knowing the total security which the report of the commissioner was to furnish and without hearing the parties in respect of any contentious items in the accounts, the trial court could not have passed a final decree.

(5) Where a preliminary decree is passed, its obligations have to be carried out A final decree is to follow in due course. No application is needed in law for obtaining a final decree in terms of the preliminary decree.

(6) I have heard the counsel for the respondents and I am not shown any provision of law under which the court could have been approached to ignore the terms of the preliminary decree and to proceed to pass the final decree on any other basis. The very foundation of this litigation being untenable, 1 conclude that the impugned order was passed in respect of an application which itself was not maintainable. It is not that the application was premature. There was no occasion to make such an application. The trial court was bound to pass a final decree as soon as the requirements of the preliminary decree were to be found satisfied. I set aside the impugned order. The parties are relegated to the stage which prevailed between them before the application dated the 16th of August, 1963, was preferred. It is regetted that all those years have been wasted.

(7) The plaintiff will deposit another amount of Rs. 500.00 towards the the commissioner's fee. 1 am told that Shri Roshan Lal Tandon has already fixed 22nd of this month for continuing with the examination of the accounts which are being rendered before him. Mr. Ball at this stage submits that it is incorrect that Mr. Tandon has dealt with any accounts. Mr. Kataria submits that the accounts would pertain to the years 1958 to 1962. In case the local commissioner is unable to submit his report within a period of two months from today, any of the parties will be at liberty to move the trial court for the appointmunt of another local commissioner. The parties are directed to appear before Shri O.N. Vohra, Additional District Judge, Delhi, on the 27th of November, 1971. Both the petitions are hereby disposed of. There will be no order as to costs.


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