Gopal Krishna Premi vs Tarun Gupta and Others

Abhay M. Naik, J.—This first appeal u/s 96 of the CPC has been preferred by the plaintiff against the judgment and decree dated 08.09.2003 passed by the Court of 1st Additional District Judge, Guna, dismissing thereby the plaintiff''s suit. Briefly stated relevant facts are that the plaintiff/ appellant instituted a suit for declaration of title and perpetual injunction with allegations that he, being a social worker, submitted an application before defendant / respondent no. 5 through defendant / respondent No. 4 for seeking permission for publication of newspaper in the name of "Alap", which was granted vide letter dated 22.06.1999. Copy of the same was also forwarded to respondent No. 4. Plaintiff, therefore, appointed defendant No. 2 as Printer and submitted a declaration in accordance with provisions of the Press & Registration of Books Act, 1867. Plaintiff had directed defendant No. 2 to submit a declaration, which was manipulated by defendant no. 1 in collusion with defendant No. 4, which was accepted. In the declaration form, defendant No. 2 was wrongly shown as owner of the newspaper "Alap" and despite plaintiff''s opposition, the said newspaper is being published, Plaintiff sought a declaration that he be declared as sole owner and occupant of the newspaper "Dainik Alap". He prayed for declaration of perpetual injunction, restraining defendants No. 1 to 3 from publishing newspaper Dainik Alap. Further direction was sought against defendants No. 4 and 5 to take appropriate action against the illegal publication of Dainik Alap through defendants No. 1 to 3.

Defendant/respondents No. 1 and 2 submitted a joint written statement, denying thereby the claim of the plaintiff. All the allegations levelled by the plaintiff were denied. Instead, it was stated that defendant no. 2 established a press for defendant No. 1''s proposed newspaper. Accordingly, declaration form was rightly submitted, after obtaining due permission for it, Dainik Alap is being published by defendants No. 1 and 2.

Defendant No. 3 stated in her written statement that she was appointed as Editor by the plaintiff himself. However, she having been relieved by the plaintiff is not engaged in any way with the publication of Dainik Alap.

Defendant No. 4 also opposed the suit of the plaintiff.

Learned trial judge framed various issues and thereafter treated the issue pertaining to maintainability of plaintiff''s suit as preliminary one. After hearing the arguments, learned trial Judge dismissed the suit of the plaintiff vide the impugned judgment and decree. Hence, the present appeal. (It is pertinent to note that defendant had also submitted a counter claim, which too, has been rejected by the impugned judgment and decree).

Learned counsel for the parties made their respective submissions, which have been examined in the succeeding paragraphs on the basis of material on record as well as the law governing the situation.

Before adverting to the factual aspect of the case, this Court feels it necessary to examine the relevant provisions of the Press & Registration of Books Act, 1867. Section 3 lays down that every book or paper printed within India shall have printed legibly on it the name of the printer and the place of printing, and if the book or paper be published, the name of the publisher, and the place of publication. Section 4 prohibits a person from keeping in his possession any press for the printing of books or papers, who shall not have made and subscribed the declaration (to the effect mentioned therein) before the District Presidency or Sub Divisional Magistrate within whose local jurisdiction such press may be. Section 5 contains rules as to publication of newspapers. Rule (2) contained therein makes it mandatory for the printer and the publisher of every newspaper published in India to make and subscribe in duplicate the declaration (to the effect mentioned therein) before the District Presidency or Sub Divisional Magistrate within whose local jurisdiction such newspaper shall be printed or published. Rule 2B further lays down that where the printer or publisher of a newspaper making a declaration under rule (2) is not the owner thereof, the declaration shall specify the name of the owner and shall also be accompanied by an authority in writing from the owner authorizing such person to make and subscribe such declaration. In case of change in ownership of a newspaper, a new declaration has been made necessary by virtue of Rule 21.

Section 8B and 8C have been reproduced below for convenience:-

8B. Cancellation of Declaration :- If, on an application made to him by the Press Registrar or any other person or otherwise the Magistrate empowered to authenticate a declaration under this Act, is of opinion that any declaration made in respect of a newspaper should be cancelled, he may, after giving the person concerned an opp rtunity of showing cause against the action proposed to be taken hold an inquiry into the matter and if, after considering the cause, if any, shown by such person and after giving him an opportunity of being heard, he is satisfied that -

(i) the newspaper, in respect of which the declaration has been made is being published in contravention of the provisions of this Act or rules made thereunder; or

(ii) the newspaper mentioned in the declaration bears a title which is the same as, or similar to, that of any other newspaper published either in the same language or in the same State; or

(iii) the printer or publisher has ceased to be the printer or publisher of the newspaper mentioned in such declaration; or

(iv) the declaration was made on false representation or on the concealment of any material fact or in respect of a periodical work which is not a newspaper;

the Magistrate may, by order, cancel the declaration and shall forward as soon as possible a copy of the order to the person making or subscribing the declaration and also to the Press - Registrar.

8C. Appeal - (1) Any person aggrieved by an order of a Magistrate refusing to authenticate a declaration u/s 6 or cancelling a declaration u/s 8B may, within sixty days from the date on which such order is communicated to him, prefer an appeal to the Appellate Board to be called the Press and Registration Appellate Board [consisting of a Chairman and another member to be nominated by the Press Council of India, established u/s 4 of the Press Council Act, 1978 (37 of 1978), from among its members]:

Provided that the Appellate Board may entertain an appeal after the expiry of the said period, if it is satisfied that the appellant was prevented by sufficient cause from preferring the appeal in time.

(2) On receipt of an appeal under this section, the Appellate Board may, after calling for the records from the Magistrate and after making such further inquiries as it thinks fit, confirm, modify or set aside the order appealed against.

(3) Subject to the provisions contained in sub - section (2) the Appellate Board may, by order, regulate its practice and procedure.

(4) The decision of the Appellate Board shall be final.

On perusal of the plaint, it is revealed that the plaintiff has nowhere pleaded that he is the owner of any printing press or he keeps in his possession any printer. There is no averment in the plaint that the plaintiff possesses any tangible or intangible property in relation to the newspaper Dainik Alap. Learned trial Judge has rightly observed that the suit of the plaintiff/ appellant is in respect of title Dainik Alap (newspaper in question). Learned counsel appearing for the plaintiff / appellant contended that declaration of title is always in the jurisdiction of civil Court and learned trial Judge has committed an illegality in holding that the Court has no jurisdiction. It is true that normally civil Court has jurisdiction to make a declaration of status or right, but the same is not independent of Section 34 of the Specific Relief Act, 1963, which reads as under:

Discretion of court as to declaration of status or right- Any person entitled to any legal character or to any right as to any property, may institute a suit against any person denying, or interested to deny, his title to such character or right and the court may in its discretion make therein a declaration that he is so entitled, and the plaintiff need not in such suit ask for any further relief. Provided that no court shall make any such declaration where the plaintiff, being able to seek further relief than a mere declaration of title, omits to do so.

Explanation: - A trustee of property is a "person interested to deny" a title adverse to the title of some one who is not in existence, and whom, if in existence, he would be a trustee.

Section 34 confers upon the Court a discretion to make a declaration about status or right, which is judicial discretion and is to be exercised on well settled principles. Court has to see the nature of obligation in respect of which performance is sought, circumstances under which the decision came to be made, conduct of the parties and the effect of the Court granting the decree. I may successfully quote here the Apex Court''s decision in the case of American Express Bank Ltd. Vs. Calcutta Steel Co. and Others, It has been observed: -

Undoubtedly declaration of the rights or status is one of the discretion of the court u/s 34 of the Specific Relief Act, 1963. Equally the grant or refusal of the relief of declaration and injunction under the provision of that Act is discretionary. The plaintiff cannot claim the relief as of right. It has to be granted according to sound principles of law and ex debito justitiae. The court cannot convert itself into an instrument of injustice or vehicle of oppression. While exercising its discretionary power, the court must keep in its mind the well - settled principles of justice and fair play and the discretion would be exercised keeping in view the ends of justice since justice is the hallmark and it cannot be administered in vacuum. Grant of declaration and injunction relating to the commercial transactions tend to aid dishonesty and perfidy. Conversely, refusal to grant relief generally encourages candour in business behaviour, facilitates free flow of capital, prompt compliance with convenants, sustained growth of commerce and above all inculcates respect for the efficacy of judicial adjudication. Before granting or refusing to grant relief of declaration or injunction or both the court must weigh pros and cons in each case, consider the facts and circumstances in their proper perspective and exercise discretion with circumspection to further the ends of justice.

It is revealed in the relief clause of the plaint that the plaintiff has prayed for a declaration that he is the sole owner and occupant of the newspaper Dainik Alap. He has further sought injunction restraining defendants no. 1 and 3 from publication of newspaper Dainik Alap. Obviously, relief of injunction is dependent of the declaration with regard to ownerships of titl of the newspaper Dainik Alap. Rule 2B and 2E contained in Section 5 deal with declaration specifying the name of the owner and new declaration in case of change in ownership respectively. Section 8B (supra) empowers the Magistrate to cancel any declaration made in respect of a newspaper, if he is satisfied about grounds mentioned therein. Accordingly, he is empowered to cancel the declaration, if he, on due consideration, is of the opinion that the declaration has been made in contravention of the provisions of the said Act or Rules made thereunder or that the declaration was made on false representation or on the concealment of any material fact. Plaintiff in paragraph 4 of the plaint has clearly pleaded that defendant no. 1, in connivance with other defendants, has made a false representation and has concealed the facts. Such allegations, on being established in accordance with law, would definitely empower the Magistrate to cancel the declaration containing a clause of ownership of the newspaper Dainik Alap. Thus, a proper machinery having been provided for the plaintiff''s alleged grievance, it is held that the trial Judge has rightly held that the suit is not maintainable in view of the provisions of Press & Registration of Books Act, 1867. It is not out of place to mention here that the Sub Divisional Magistrate, Guna was approached by the plaintiff, who vide order dated 18.10.1999 rejected the application. Aggrieved by it, Appeal No. 27/8/99-00-PRAB was preferred before the Press & Registration Appellate Board, New Delhi. The Board disposed of the appeal vide its order dated 09.06.2000 with the following concluding paragraphs: -

After hearing the parties and scrutinizing the records, the Board is of the considered view that the appellant having already approached the Court of First Additional District Judge, Guna, it was expedient that the result of the civil suit filed by the appellant be awaited. In case an interim order is passed in his favour by the Court the appellant may approach this Board for revival of this appeal. The appeal stands disposed of accordingly.

Appellant in the light of this order is now at liberty to approach the Board for revival of his appeal. Resultantly, the appeal, being bereft of merits, is hereby dismissed, however, with no order as to costs.

However, it is made clear that if the plaintiff/appellant institutes a fresh suit in respect of any property like Press or printer belonging to him, the same shall have to be decided in accordance with law uninfluenced by this judgment.

C.C. as per rules.