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Everest Pictures Circuit, Salem Vs. S. Karuppannan - Court Judgment

LegalCrystal Citation
SubjectMedia and Communication;Intellectual Property Rights
CourtChennai High Court
Decided On
Case NumberC.R.P. No. 1886 of 1981
Judge
Reported inAIR1982Mad244; (1982)1MLJ100
ActsCopyright Act, 1957 - Sections 62
AppellantEverest Pictures Circuit, Salem
RespondentS. Karuppannan
Appellant AdvocateM. Raghavan, Adv. for ;T.V. Ramanujam, ;K. Balasubramaniam and ;T. Muralidharan, Advs.
Respondent AdvocateS. Jagadeesan, Adv.
Cases ReferredS. Dharmalinga Nayakar v. D. Balasubramania Ayyar
Excerpt:
.....- jurisdiction - section 62 of copyrights act, 1957 - civil court have right to grant declaration as to who is entitled to copyright - further relief with reference to injunction, accounting etc. can only be obtained under section 62 from court having jurisdiction - under section 62 district court has jurisdiction to decide such matters. - - after all, the grant of a declaration is a matter of direction and i think the learned city civil judge exercised a wise discretion in nipping a suit for a declaration of this kind in the bud instead of wasting his own time and that of the defendants in trying a suit for a mere declaration like this. but a mere declaration will not carry the purpose any further and the further consequential reliefs flowing from such a declaration clearly........................'bearing these provisions in mind, we have to decide whether the abovesaid suit for declaration and injunction is maintainable in the court of the district munsif of salem. in any given case the question of jurisdiction will have to be decided with reference to the plaint allegations. the case of the plaintiff, the respondent herein, in the suit is that he is the only person who is entitled to release, exhibit and exploit the said film within the revenue districts of salem and dharmapuri, for a period of 99 years. by virtue of an agreement dated 26-10-1978 entered into by him with one saraswathi, who was entitled to the distribution rights of the picture in question. the case of the defendant, the civil revision petitioner herein, is that as per the letter of.....
Judgment:
ORDER

1. This civil revision petition is filed against the fair and final order of the learned District Judge of Salem passed in C. M. A. No. 17 of 1981, which itself is an order in the civil miscellaneous appeal arising from the judgment of the learned District Munsif of Salem in O. S. No. 2136 of 1979 directing the return of the plaint in O. S. 2136 of 1979 on the file of the court of the District Munsif of Salem for presentation to the proper court. The respondent herein who is the plaintiff in O. S. 2136 of 1979, is a film distributor. The negative right of the Tamil talkie film called 'Petralthan Pillaya' was sold to one Mrs. Saraswathi who was doing the business under the name and style of Mrs. Saraswathi Film Circuit. She had every right to deal with the distribution of the said film .On 12 26-10-1978, the said Saraswathi and the respondent herein (the plaintiff in the suit) entered into an agreement by which she leased the right to exhibit the said film in the Revenue districts of Salem and Dharmapuri, for a period of 99 years from .1-1-1979 for proper and valuable consideration. According to the said agreement the respondent herein was entitled to make his own arrangements for the required number of prints necessary for the exhibition and exploitation of the said picture. To enable the respondent herein to obtain necessary print the said Saraswathi had passed a letter addressed to Messrs Vijaya Productions (P.) Ltd., Madras 26, requesting them to print and supply the required number of prints to the respondent herein at his own cost and she had granted the leasehold right of the said picture. When the civil revision petitioner, who is the defendant in the suit, made an attempt to release the same picture and when the respondent herein approached the civil revision petitioner to know his rights, he did not say anything except saying that he is going to release the picture. Since the attempt on the part of the civil revision petitioner trying to release the picture is unlawful the respondent herein filed a suit in O.S. No. 2136 of 1979 for a declaration and permanent injunction in respect of the above said picture. The contention of the civil revision petitioner, who is the defendant in the suit, is that the suit is not maintainable and the District Munsif Court had no jurisdiction to try the suit. The existence of the very agreement between Saraswathi and the respondent herein is challenged by the civil revision petitioner. The learned District Munsif tried issue No. 1. viz., whether the District Munsif Court has no jurisdiction, as a preliminary issue and accepted the contention of the civil revision petitioner, the defendant in the suit, that as per Section 62 of the Copyright Act, 1957, hereinafter referred to as the Act, the suit ought to have been instituted only in the District Court and ordered the return of the plaint. As against the order of the learned District Munsif, returning the plaint the respondent h6rein, who is the plaintiff in the suit. filed an appeal in C.M.A. 17 of 1981, on the file of the court of the District Judge of Salem. The learned District Judge taking the view that the adjudication in the suit relates to the question as to whether the alleged agreement in favour of the plaintiff or the alleged agreement in favour of the defendant is to prevail, that the suit is only a civil action which does not call for adjudication under the provisions of the Act and in the suit neither the question of passing off nor limitation nor any other question relating to Copyright is involved, set aside the order of the learned District Munsif and directed the District Munsif to dispose of the suit in accordance with the law. As against the said decision of the learned District Judge, this civil revision petition is filed.

2. Before entering into a discussion regarding the matter in issue it will be useful to refer to the relevant provisions of the Copyright Act. S. 13 of the Act, which deals with the works in which copyright subsists, is as follows--

'13 (1) Subject to the provisions of this section and the other provisions of this Act, copyright shall subsist throughout India in the following classes of works, that is to say-

(a) ............... ; (b) Cinematograph films and (c) ............

(2) ............

(3) Copyright shall not subsist (a) in any Cinematograph film if a substantial part of the film is an infringement of the copyright in any other work;

(b) ............ (4) The copyright in a cinematograph film or a record shall not affect the separate copyright in any work in respect of which or a substantial part of which. the film, or as the case may be, the record is made.

(5) ............'

3. Section 14 of the Act deals with the meaning of copyright which reads as follows-

'14 (1) For the purposes of this Act, 'copyright' means the exclusive right, by virtue of, and subject to the provisions of, this Act-

(a) ............ (b) .........

(c) in the case of a cinematograph film, to do or authorise the doing of any of the following acts namely-

(i) to make a copy of the film,

(ii) to cause the film, in so far as it consists of visual images, to be seen in public and in so far as it consists of sounds to be heard in public,

(iii) to make any record embodying the recording in any part of the sound track associated with the film by utilising such sound track;

(iv) to communicate the film by radio diffusion.'

4. Section 51 of the Act dealing with the infringement of copyright, reads as follows--

'51. Copyright in a work shall be deemed to be infringed-

(a) when any person, without a licence granted by the owner of the copyright or the Registrar of Copyrights under this Act or in contravention of the conditions of a licence so granted or of any condition imposed by a competent authority under this Act-

(i) does anything, the exclusive right to do which is by this Act conferred upon the owner of the copyright or

(ii) permits for profit any place to be used for the performance of the work in public where such performance constitutes an infringement of the copyright in the work unless he was not aware and had no reasonable ground for believing that such performance would be an infringement of copyright .........

5. Section 55 of the Act dealing with the remedies for infringement of copyright reads as follows-

'55 (1) Where copyright in any work has been infringed, the owner of the copyright shall except as otherwise provided by this Act, be entitled to all such remedies by way of injunction, damages, accounts and otherwise as are or may be conferred by law for the infringement of a right:

Provided that if the defendant proves that at the date of the infringement he was not aware and had no reasonable ground for believing that copyright subsisted in the work, the plaintiff shall not be entitled to any remedy other than an injunction in respect of the infringement and a decree for the whole or part of the profits made by the defendant by the sale of the infringing copies as the court may 'in the circumstances deem reasonable.

(2) (3)

6. Section 62 of the Act dealing with the jurisdiction of courts, reads as follows-

'62. (1) Every suit or other civil proceedings arising under this Chapter in respect of the infringement of any other right conferred by this Act shall be instituted in the District Court having jurisdiction.

(2) ..............'

Bearing these provisions in mind, we have to decide whether the abovesaid suit for declaration and injunction is maintainable in the court of the District Munsif of Salem. In any given case the question of jurisdiction will have to be decided with reference to the plaint allegations. The case of the plaintiff, the respondent herein, in the suit is that he is the only person who is entitled to release, exhibit and exploit the said film within the Revenue districts of Salem and Dharmapuri, for a period of 99 years. by virtue of an agreement dated 26-10-1978 entered into by him with one Saraswathi, who was entitled to the distribution rights of the picture in question. The case of the defendant, the civil revision petitioner herein, is that as per the letter of arrangement, dated 21-8-1978. executed by one Raghunathan, the husband and power agent of Saraswathi, the defendant was given the exclusive lease hold rights of distribution, exhibition and exploitation of the picture in question and 37 other pictures, for the areas of Salem and Dharmapuri districts. Hence the defendant is entitled to the exclusive right of exploiting the said picture in the abovesaid areas. The right of the Plaintiff under the agreement dated 26-10-1978 itself is disputed by the defendant in the suit. As per S. 14 of the Act, copyright in respect of a cinematograph film confers the right (1) to make a copy of the film, (2) to cause the film, in so far as it consists of visual images to be seen in public and in so far as it consists of sounds, to be heard in public. Hence, the plaintiff can be said to have a copyright only if he Droves that by means of agreement dt, 26-10-1978 he became entitled to such a right. If the agreement dt 26-10-1978 entered into between the plaintiff and the abovesaid Saraswathi is admitted then the plaintiff can be deemed to possess the copyright in respect of the said film But when the agreement itself is not admitted unless the plaintiff proves his right by acceptable evidence it cannot be said that he is entitled to the copyright of the abovesaid films. Whether the plaintiff is entitled to the copyright under the agreement dt. 26-10-1978 or not in a civil dispute and the civil court has jurisdiction to decide the, case. But if the civil court comes to the conclusion that the plaintiff is entitled to have the right to exhibit the abovesaid film, then the plaintiff can only be said to be entitled to a copyright in respect of the film and the civil remedies for the infringement of such copyright as provided u/s. 55 of the Act are available to the plaintiff. Under S. 55 of the Act where copyright in any work has been infringed, the owner of the copyright shall, except as otherwise provided in the Act, be entitled to all such remedies by way of injunction, damages, accounts and otherwise as are or may be conferred by the abovesaid Act. The only exception being that if the defendant proves that at the date of the infringement he was not aware and had no reasonable ground for believing that copyright subsisted in the work, the plaintiff shall not be entitled to any remedy 'other than an injunction in respect of the infringement and a decree for the whole or part of the profits made by the defendant by the sale of the infringing copies as the court may in the circumstances deem reasonable. As already stated the remedy for an infringement can be had only from the District Court having jurisdiction as per S. 62 of the Act. S. 62 says that every suit or proceedings arising in respect of the infringement of copyright shall be instituted in the District Court having jurisdiction.

7. In the ultimate analysis the civil court may grant the relief of declaration as to who is entitled to the copyright. But further reliefs with reference to injunction. accounting etc. can only be obtained u/s. 62 of the Act from the Court having jurisdiction, viz., the District Court. In the case reported in S. Dharmalinga Nayakar v. D. Balasubramania Ayyar, AIR 1937 Mad 94, a single Judge of this Court while considering whether the civil court can be allowed to grant the relief of mere declaration in respect of a similar question observed as follows:-

'The only relief left is a declaration that the plaintiff is the author of the book in question. As regards this relief the learned City Civil Judge says that the plaintiff even on his own showing is entitled to other consequential reliefs besides a bare declaration, and that no useful purpose would be served by granting a relief of this kind to the plaintiff. I entirely agree. After all, the grant of a declaration is a matter of direction and I think the learned City Civil Judge exercised a wise discretion in nipping a suit for a declaration of this kind in the bud instead of wasting his own time and that of the defendants in trying a suit for a mere declaration like this. The appeal is really hopeless and I would even say frivolous. The plaintiff-appellant was definitely told to present his plaint to the proper court. Instead of doing that, he has preferred a baseless and hopeless appeal. The appeal is dismissed with costs,'

Adopting the same reasoning since the present suit is one for declaration and injunction and no useful purpose will be served by granting the mere relief of declaration, the only course available to the learned District Munsif is to return the plaint for presentation to the proper court. In so far as the adjudication as to who is entitled to a declaration in respect of rights over the picture is a matter coming within the jurisdiction of the civil court having jurisdiction. But a mere declaration will not carry the purpose any further and the further consequential reliefs flowing from such a declaration clearly fall within the reliefs that can be g& u/s. 55 of the Act. which can only be granted by the District Court u/s. 62 of the Act. Adopting the reasoning in the decision cited above, I have no hesitation in holding that instead of permitting the civil court to grant a declaration which is of no use, the interest of justice will be better served and multiplicity of proceedings can be avoided by directing the return of the plaint to be presented to the proper court having Jurisdiction. Further the court-fee was paid u/s. 25(c) of the Court-fees Act, which relates to the courtfee payable for reliefs under the Copyright Act. If the suit is not one contemplated under the Copyright Act then the relief of declaration and injunction will have to be valued according to the other provisions of the Act and the minimum valuation of Rs. 500 will not be available to the plaintiff. Inasmuch as the suit itself is valued u/s. 25(c) of the Courtfees Act, the above suit can only be said to be a suit for the relief provided u/s. 55 of the Act

8. In the light of the above reasoning I have no hesitation in setting aside the order of the learned District Judge and restore the order of the learned District Munsif by directing the plaint in O.S. No. 2136 of 1979 on the file of the court of the District Munsif of Salem to be returned to the plaintiff for the representation to the proper court.

9. In the result the civil revision petition is allowed and the order of the learned District Judge is set aside and the order of the learned District Munsif is restored. The plaint will be represented within eight weeks from this date. There will be no order as to costs.

10. Revision allowed.


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