Francis W. Maclean, K.C.I.E., C.J.
1. This is an application under Section 6 of Act XX of 1847 to have the name of the appellant expunged from the Catalogue of Books--kept in Bombay under the provisions of Act XXV of 1867--on the ground that he, the applicant, is the assignee from the proprietor, and consequently the proprietor of the copyright in the two hooks, which form the subject of dispute in the case. The learned Judge in the Court of First Instance has acceded to the application, and the respondent has appealed.
2. The first and most important question raised on the appeal is that this Court has no jurisdiction to deal with the matter, and that question subdivides itself into two portions. The material, portion of Section 6 of Act XX of 1847 is this: 'And it is enacted that, if any person shall deem himself aggrieved by any [entry made under colour of this Act in the said Book of Registry '--that is to say, a book wherein is registered the proprietorship in the copyright of books and assignments thereof and licenses affecting such copyright kept in the office of the Secretary to the Government of India for the Home Department,--' it shall be lawful for such person to apply by motion to the Supreme Court of Calcutta for an order that such entry may be expunged or varied.' Then I pass to Section 18 of Act XXV of 1867--an Act for the regulation of printing presses and newspapers, for the preservation of copies of books printed in British India and for the registration of such books. That section provides for the institution in the Presidency cities of India of 'a book to be called a Catalogue of Books printed in British India, wherein shall be registered a memorandum of every book, which shall have been delivered pursuant to Section 9 of this Act,' and then it proceeds to state what particulars that memorandum shall contain. The really material portion of that section is this: 'And the provisions contained in that Act as to the said Book of Registry shall apply mutatis mutandis to the said catalogue.' It is contended for the appellant that that provision has ousted the jurisdiction of the Supreme Court of Calcutta specially vested in it by Section 6 of Act XX of 1847.
3. It has not been contested that all the powers originally vested in the old Supreme Court in Calcutta are now vested in the High Court. I am unable to take the view contended for by the appellant.
4. It is urged that not only does that section take away the jurisdiction of the Supreme Court of Calcutta, specially and definitely given to it, but that such jurisdiction is now vested in the High Court of Bombay. The language does not support this contention.
5. I think it means that, for the expression 'Books of Registry' used in the previous Act is to be read the expression 'Catalogue of Books' instituted under Act XXV of 1867. If that is the true construction of the language, it comes to this, that, instead of the expression 'Book of Registry' to be found in Section 6 of Act XX of 1847,' we must read 'Catalogue of Books.' I think it would be going too far to hold, upon the language of the section, that the jurisdiction of this Court has been taken away.
6. Then it is said that, assuming the powers of the Supreme Court to be vested in the High Court, the learned Judge, who was sitting on the Original Side of the High Court, had no jurisdiction to try the case. That seems a somewhat startling proposition at the present date.
7. This point was not taken in the first Court. It is sufficient to say that the learned Judge, who tried the case, had been appointed by the Chief Justice of the Court under Section 14 of the Charter Act (24 and 25 Victoria) to take the work of the Original Side of the Court, and, having regard to Sections 19, 13 and 14 of that Act and to Section 36 of the Letters Patent, I entertain no doubt whatever that the learned Judge had jurisdiction to try the caes.
8. If this point had been taken at once, the learned Judge could hare been appointed to hear it.
9. Upon the question of jurisdiction, the contention of the appellant must fail.
10. Then it was suggested that the present applicant was not a person aggrieved within the meaning of Section 6. But if he is, as he says, the proprietor of the copyright, and the present appellant has got his name registered in the Catalogue of Books at Bombay in fraud of the applicants rights, ho may fairly say that he is a person aggrieved.
11. Then it has been suggested that the learned Judge ought not to have disposed of a case of this sort upon affidavit evidence.
12. But, if the case was clear, as it seems to be upon the merits, that the applicant was the proprietor of the copyright, and that the present appellant was trying to defraud him, the Court was justified in the course that it took.
13. On the merits, the appellant would appear to have no case.
14. Now I come to an objection which, although it was raised at the very last moment, seems to be one of a serious nature, It was not raised in the Court below, as it ought to have been at the very outset. It was not even raised in this Court, until the arguments had been practically concluded, yet the objection is of such a nature that we cannot refuse to deal with it. It is based upon the provisions of Section 14 of Act XX of 1847, which is in these terms: 'And it is enacted that no proprietor of copyright in any book first published after the passing of the said Act of Parliament, 8 and 4 Wm. IV, cap 85, shall maintain, under the provisions of this Act, any action or suit at law or in equity, or any summary proceedings in respect of any infringement of such copyright, unless he shall, before commencing such action, suit or proceeding, have caused an entry to be made in the Books of Registry at the office of the said Secretary of such books, pursuant to this Act: Provided, always, that the omission to make such entry shall not affect the copyright in any book, nor the right to sue or proceed in respect of the infringement thereof, except the right to sue or proceed in respect of the infringement thereof under the provisions of this Act'
15. When the applicant instituted the present summary proceedings, he was the proprietor of the copyright in the books, and it is admitted that his name had not been entered in the Book of Registry at the office of the Secretary of the Home Department of India before the commencement of the proceedings. It is contended for the appellant that, in the circumstances, he cannot maintain the present application. On the other hand, it has been urged that the section does not apply to proceedings under Section 6 of Act XX of 1847. I should have been glad if, in the circumstances, I could have taken the applicant's view, but the language of the section seems too clear for such a conclusion.
16. There is in the Act no reference to any summary proceeding, except the summary proceeding mentioned in Section 6, and I think it must be taken that the summary proceeding mentioned in Section 14 means the summary proceeding mentioned in Section 6. The proviso to that section, namely, 'that the omission to make such entry shall not affect the copyright in any book, except the right to sue or proceed in respect of the infringement thereof under the provisions of this Act,' gives support to that view.
17. It is said that this is not a proceeding in respect of an infringement. I think it is; the applicant says his copyright is being infringed, and in connection with and with the object of such infringement, the appellant has fraudulently got his name inserted in the Catalogue of Books at Bombay. This then seems to me to be a proceeding in respect of an infringement, and that it would be putting too narrow a construction upon the language to say that it was not such a proceeding. It is therefore, with great regret, that I am forced to the conclusion that, upon this ground, the appeal must succeed. But as we think this was an objection, which ought to have been taken at the very outset, we do net allow the appellant any costs in either Court.
18. I agree that the Court had jurisdiction to make the order. It has been suggested that, assuming that the High Court has succeeded to all the powers vested in the old Supreme Court by Section 6 of the Copyright Act, the learned Judge in the exercise of his original civil jurisdiction in this case had no power to make the order, inasmuch as he was not authorized by the Chief Justice to exercise the Special jurisdiction conferred by Section 6 of the Act. There is no foundation for this contention. I think it has always been recognized that the High Court in its original jurisdiction is the successor in the direct line of descent of the Supreme Court, and that all the powers and functions of the Supreme Court now fall to be exercised by the Judge or Judges of the High Court, who are appointed by the Chief Justice to 'exercise the original jurisdiction of the Court. I agree, however, that Section 14 of the Copyright Act constitutes a bar to the present application.
19. I agree.