1. The defendants in O.S No. 9 of 1962 on the file of the District Judge, West Thanjavar,are the appellants. The plaintiff-respondent instituted the suit for an injunction restraining the defendants from reprinting a Tamil Drama called 'Kalangarai Deivam' in any form and for recovery of Rs. 14,000/- as damages and for certain other relief's. He claimed to have registered under the Copyrights Act, 1957 (Central Act 14 of 1957) his Tamil Novel 'Maruthiyin Kathal'. He contended that the first defendant adopting the theme, characterization, narration and development of the story as found in 'Maruthiyin Kathai' wrote under the caption ' Kalangarai deivam' in the form of a drama, which was published in series in Ananda Vikatan, a weekly Tamil magazine, of which the editor and Publisher was the second defendant. The substances of his complaint was that the defendants committed infringement of his copyright and prayed for the relief's indicated above. The defendants denied the plaintiff's claim contending inter alia that there were vital differences in matters the theme, characterization, etc, between the plaintiff's novel and the first defendant's drama and that the plaintiff was in no way damnified so as to entitle him to claim damages.
2. The trial Judge accepted the plaintiff's case holding that his copyright in his novel 'Maruthiyin Kathal' had been infringed by the publication of the first defendant's drama 'kalangarai Deivam' in the second defendant's weekly journal Ananda Vikatan. The trial Judge further found that the plaintiff was entitled to damages which he assessed at Rs. 6250. In the concluding portion of his judgment he held--
" In the result, there will be a decree in favor of the plaintiff as against defendants for Rs. 6250 (Rs. six thousand two hundred and fifty only) with interest at 6 per cent., per annum from the date of plaint towards damages and there will be an injunction restraining defendants from reprinting the drama 'Kalangarai Deivam' in any form whatever and proportionate costs of the suit. The other relief's claimed by the plaintiff are disallowed. But inasmuch as defendants denied the entire case of the plaintiff and their defense has been negatived, there will be no order as to costs in respect of the portion of the claim of plaintiff which has been disallowed."
In conformity with the judgment, the decree provided inter alia:
1. that the defendants 1 and 2 be and hereby are restrained by an injunction from reprinting the drama 'Kalangarai Deivam' in any form whatever;
2. that defendants 1 and 2 do pay plaintiff Rs. 6250 being the damages with interest thereon at 6 per cant. per annum from 23-8-1962, the date of plaint, till realization".
(The other portions of the decree omitted as not relevant). It is against this decree that this appeal has been preferred by both the defendants. During the pendency of the appeal, the second defendant died on 26th August 1969. But no steps have been taken by his legal representatives to come on record within time, with the result, the appeal abated. To set aside the abatement and to excuse the delay in taking steps to have the abatement set aside and to come on record, the legal representatives of second defendant took out C.M.P 7161 to 7163 of 1972 which we dismissed by order dated 29-11-1972 (Mad). In the result, the abatement of the appeal so far as the second appellant is concerned stands.
3. In view of the said abatement, the counsel for the respondent plaintiff contended that the entire appeal had abated and that the first defendant was not entitled to prosecute appeal. This, he raised as a preliminary point by giving notice to the counsel for the first defendant-appellant, and we heard arguments on that point. The question for consideration is whether the appeal, even as regards the first appellant cannot be proceeded with.
4. As seen from the operative portion of the judgment and the relevant clauses of the decree, the decree is a joint decree against both the defendants with regard to the two main relief's, one relating to injunction and the other relating to damages. The liability of the defendants inter se with regard to these relief's is not apportioned. As a result of the abatement of the appeal so far as the second defendant is concerned, the decree has become final so far as he is concerned. If the first defendant were to succeed in this appeal, the success can only be on the basis that there has been no infringement of the plaintiff 's copyright in his novel ' Maruthiyin Kathal' and that the plaintiff has not sustained any damages. If a decree were to follow in favor of the first defendant on that basis, that decree would be inconsistent with the decree as between the second defendant and the plaintiff. It is for this reason it was contended on behalf of the plaintiff that the appeal,as a whole, cannot be proceeded with by the first appellant.
5. The law on this point is well settled, by a series of decisions of the Supreme Court. In State of Punjab v. Nathuram, , certain land belonging to two brothers Labhuram and Nathuram, jointly was acquired for military purposes and as arbitrator passed an award granting certain amount as compensation. The state of Punjab appealed against the award to the High Court of Punjab. During the pendency of the appeal Labhuram died. But his legal representatives were not brought on record within time, with the result the appeal abated as against him. The High court dismissed in appeal as even as against Nathuram, holding that the appeal could not be proceeded against him. The State appealed to the Supreme Court. The question arose whether the appeal had abated even as against Nathuram. At page 90. Raghubar Dayal, J., Speaking for the court, observed--
" It is not disputed that in view of Order 22, Rule 4, Civil Procedure Code hereinafter called the Code the appeal abated against Labhuram deceased, when no application for bringing on record his legal representatives had been made within the time limited by law. The code does not provide for the abatement of the appeal against the other respondents. Courts have held that in certain circumstances, the appeals against the co-respondents would also abate as a result of the abatement of the appeal against the deceased respondent. They have not been always agreed with respect to the result of the particular circumstances of a case and there has been consequently divergence, of opinion on the application of the principle. It will serve no useful purpose to consider the cases. Suffice it to say that when Order 22, Rule 4 does not provide for the abatement of the appeal against the co-respondents of the deceased respondent there can be no question of abatement of the appeals against them. To say that the appeals against them abated in certain circumstances, is not a correct statement. Of course, the appeals against them cannot proceed in certain circumstances, and have therefore to be dismissed. such a result depends on the nature of the relief sought in the appeal."
The learned Judge further observed in the same page:
" The question whether a court can deal with such matters or not, will depend on the facts of each case and therefore no exhaustive statement can be made about the circumstances when this is possible or is not possible. It may, however, be stated that ordinarily the considerations which weigh with court in deciding upon this question are whether the appeal between the appellants and the respondents other than the deceased can be said to be properly constituted or can be said to have all the necessary parties for the decision of the controversy before the court. The test to determine this has been described in diverse forms. Courts will not proceed with an appeal(a) when the success of the appeal may lead to the court's passing a decree which will be contradictory to decree which had become final with respect to the same subject-matter between the appellant and the deceased respondent;(b) when the appellant could not have brought the action for the necessary relief against those respondent alone who are still before the court ; and (c) when the decree against the surviving respondents, if the appeal succeeds, be ineffective, that is to say, it could not be successfully executed".
Having enunciated the above principles, the Supreme Court held that since the amount of compensation was awarded jointly in favor of the both Labhuram and Nathuram and as the subject-matter of the appeal was the quantum of the compensation and not the apportionment thereof, the abatement of the appeal as against Labhuram rendered the appeal incapable of being proceeded with against Nathuram alone and consequently the appeal was dismissed.
6. In Ramsarup v. Munshi, there were five appellants and the appeal was against a pre-emption decree. The five appellants fell into two groups, namely, appellants 1 and 2, who were brothers, and appellants, 3, 4 and 5 forming another group. When the appeal was pending in the Supreme Court, the first appellant died. But no application was made to bring on record his legal representatives. The sale was not a sale of any separated item of property in favor of the deceased appellant but of one entire set of vendees in equal shares. The question arose whether the appeal of the other four appellants was liable to be dismissed. At page 556, it was observed--
"The consideration for the sale is a sum of Rs. 22,750/- and the conveyance recites that Mehar Singh and the second appellant had paid one half amounting to Rs. 11,375/- while the other three appellants had paid the other half. It is, therefore, not a case of a sale of any separated item of property in favor of the deceased appellant but one entire set of properties to be enjoyed by two sets of vendees in equal shares. It is clear law that there can be no partial pre-emption because pre-emption is the substitution of the pre-emptor in place of the vendee and if the decree in favor of the pre-emptors in respect of the share of the deceased. Mehar Singh has become final it is manifest that there would be two conflicting decrees if the appeal should be allowed and a decree for pre-emption in so far as appellants 2 to 5 are concerned is interfered with. Where a decree is a joint one and a part of the decree has become final, by reason of abatement, the entire appeal must be held to be abated."
(The decision in does not appear to have been cited in this case).
7. In Rameshwar Prasad v. Shambeharilal, the position was again considered. In that case, nine persons instituted a suit for possession of a land against two defendants, the allegations being that the first defendant was the tenant in chief and that the second defendant was a sub-tenant. The suit was decreed by the Trial court. But the appellate court reversed the decree. The plaintiffs preferred a second appeal. During the pendency of the second appeal, one of the plaintiffs (Kedarnath) died and his legal representatives were not brought on record, with the result, the appeal by him had abated. The question arose whether, by reason of such abatement, the appeal could be proceeded with by the other appellants. It was contended that under Order XLI, Rule 4, Civil Procedure Code, the appeal of the other appellants could be proceeded with. Referring to the scope of Order XLI, Rule 4, the Supreme Court observed:
"These provisions enable one of the plaintiffs or one of the defendants to file an appeal against the entire decree. The second appeal filed in the High Court was not filed by any one or by even some of the plaintiffs as an appeal against the whole decree, but was filed by all the plaintiffs jointly, and, therefore, was not an appeal to which the provisions of Order XLI, Rule 4 could apply".
Proceeding further, the Court observed at page 1904:
" Kedarnath's appeal has abated and the decree in favor of the respondents has become final against legal representatives. His legal representatives cannot eject the defendants from the premises in suit. It will be against the scheme of the code to hold that Rule 4 of Order XLI empowered the Court to pass a decree in favor of the legal representatives of the deceased Kedarnath on hearing on appeal by the surviving appellants even though the decree against him has become final."
Then the supreme Court referred to the decision in and observed--
"No question of the provision of Rule 4 of Order XLI overriding the provisions of Rule 9 of Order XXII arises. The two deal with different stages of the appeal and provide for different contingencies. Rule 4 of Order XLI applies to the stage when an appeal is filed and empowers one of the plaintiffs or defendants to file an appeal against the entire decree in certain circumstances. He can take advantage of this provision, but he may not. Once an appeal has been filed by all the plaintiffs the provisions of Order XLI, Rule 4 became unavailable. Order XXII operates during the pendency of an appeal and not at its institution. If some party dies during the pendency of the appeal, his legal representatives have to be brought on record within the period of limitation. If that is not done, the appeal by the deceased appellant abates and does not proceed any further. There is thus no inconsistency between the provisions of Rule 9 of Order XXII and those of Rule 4 of O. XLI, C.P.C. They operate at different stages and provide for different contingencies. There is nothing common in their provisions which make the provisions of one interfere in any way with those of the others."
8. In Sri Chand v. Jagdish Prasad, AIR 1966 SC 1427, five persons stood as sureties for the satisfaction of a decree to be passed in a suit instituted on the foot of a hypothecation document. After that suit was decreed, the decree-holder sought to execute the decree against the sureties by enforcing the surety bond. The sureties raised various objections, which were rejected by the executing court and that order was upheld by the High Court in appeal. The sureties appealed to the Supreme Court by special leave. But before the record was transmitted to the Supreme Court, one of the sureties died. His legal representatives were not brought on record within time. An application for condonation was rejected by the High Court and that order was confirmed by the Supreme Court, with the result the appeal abated so far as the deceased appellant-surety was concerned. The question considered by the Supreme Court was whether the appeal had abated in its entirety or whether the appeal the Supreme Court could proceed with the hearing of the appeal so far as the remaining sureties were concerned. The Supreme Court held that the appeal was liable to be dismissed holding that the other sureties could not continue the appeal. Shah, J., as he then was, speaking for the court, observed at page 1429--
"The order of the High Court holding that the sureties are liable to satisfy the claim notwithstanding the objections raised by Basantlal has become final. In the appeal filed by the appellants 1 and 3 if this court holds that the High Court was in error in deciding that the surety bond was not enforceable because it was not registered, or that the first respondent has done some act which has discharged the sureties from liability under the bond, there would unquestionably be two inconsistent orders-one passed by the High Court holding that the surety bond was enforceable, and the other, the view of this court that it is not enforceable."
The learned Judge referred to certain observations in , in which Raghubar Dayal, J., had indicated three tests. Dealing with this aspect, it was observed at page 1430:--
"It may be pointed out that the three tests suggested by Raghubar Dayal, J., in Nathuram's case, are not cumulative tests. Even if one of them is satisfied the court may, having regard to all the circumstances, hold that the appeal has abated in its entirety."
9. One of us had to deal with a similar question in Innasi Udayar v. Chinnasami Raju, . In that case, the suit for
possession of certain lands was laid against 24 defendants, of whom the name of one was struck off during the pendency of the suit. The relief was claimed jointly against all the defendants without specifying which defendant was to surrender possession of which portion. The Trial Court decreed the suit directing the defendants on record to put the plaintiff in possession of the suit properties. The appeal preferred against that decree was dismissed and the decree of the trial court was confirmed by the first appellate court. Some of the defendants came up in second appeal to this court. During the pendency of the second appeal two of the appellants died, and their legal representatives were not brought on record within time, with the result, the appeal as against them had abated. The plaintiff-appellant took out an application praying for an order directing that the second appeal had abated and should, therefore, be dismissed. Having regard to the fact that the decree was joint and indivisible against all the defendants and as the decree did not provide that each of the defendants should put the plaintiff in possession of any particular portion of the suit land, it was held that the appeal by the other appellants could not be proceeded with as the appeal had abated against two of the appellants.
10. The question whether, consequent on the abatement of the appeal so far as one appellant is concerned the entire appeal should be held to have abated, has to be decided with reference to the nature of the relief claimed and the terms of the decree. If the decree is joint against several defendants and if the decree has become final so far as one defendant is concerned on account of abatement on his death, the appeal by the other defendants should necessarily be held to be not maintainable because the success of the appeal would lead to the court coming to a decision which would be inconsistent with the decision between the deceased appellant and the respondent and that would lead to the court passing a decree which would be contrary to a decree which has already become final in respect of the same subject-matter between the deceased appellant and respondent. We have already pointed out that in the instant case the decree is joint both with regard to damages and injunction. It may be that the decree can be satisfied by executing it against the surviving first defendant so far as the money portion of the decree is concerned. That aspect, on which reliance was placed by the counsel for the first defendant, does not conclude the question, for, the other relief of injunction cannot be satisfied unless it is executed against both the defendants. As we have already pointed out, if the first defendant were to succeed in the appeal, such success can only be on the basis that there was no infringement of the plaintiff's copy right. Such a position would be contrary to the decision that has become final so far as the second defendant and the plaintiff are concerned. Such a conflict of decisions should not be permitted. This case satisfies the test No.(a) laid down by Raghubar Dayal J. in , the relevant portion of which we have extracted in paragraph 5 supra.
11. The counsel for the first appellant sought to contend before us that there is no common defense in this case and the second appellant can be held liable only if it is established that he had knowledge of the infringement of the copyright in relation to the publication of the drama in the journal. As we have pointed out already, the common defense of defendants 1 and 2 was that there had been no infringement of the copyright at all. Nowhere in the written statement of the second defendant it was contended that he had no knowledge of the infringement of the copyright, when the drama was published in his journal in series and there had been no issue to that effect. From what we have extracted from a portion of the decree passed in this case, it will be clear that the entire trial proceeded on the common defense between defendants 1 and 2.
12. Counsel for the first appellant brought to our notice a decision of a Single Judge of the Mysore High Court in Karnam Madhava Rao v. Karnam Swami Rao, 1966-1 Mys LJ 508. That was a case where the plaintiffs sued for recovery of damages for alleged slander of title. One of the defendants died during the pendency of the second appeal. It was held that the decree was for damages for a tortuous act and that the liability of the defendants was joint and several and every one of the defendants had independent right of appeal against the decree. It was further held that the appeal did not abate on the death of the first defendant, even though his legal representatives had not been brought on record. In this decision, there is no discussion either of any principle or of authority and therefore we are unable to derive any assistance therefrom. On the other hand, the decisions of the Supreme Court referred to by us already as well as the decision of one of us which had gone into the entire question of law in this behalf will clearly establish that on the abatement of the appeal by the death of the second appellant, the appeal by the first appellant can not be proceeded with and the appeal as a whole has to be dismissed.
13. In the result, the appeal even by the first defendant cannot be proceeded with and is, therefore, dismissed. There will be no order as to costs.
14. Cross-objections: Mr. Swaminathan, counsel for the plaintiff-respondent and the cross-objector, concedes that inasmuch as the legal representatives of the deceased second defendant have not been impleaded and as the appeal as against the second defendant has abated and as the appeal by the first defendant cannot be proceeded with, the cross-objections also cannot be proceeded with. Hence it is also dismissed. No costs.
15. Appeal and cross-objections dismissed.