Kapil Sharma & Ors vs Piyush Sharma

Manmohan, J

CM APPL. 31380/2020

Exemption allowed, subject to all just exceptions.

FAO (COMM) 27/2021 & CM APPL. 31381/2020

The appeal has been heard by way of video conferencing.

Present appeal has been filed challenging the order dated 04th July, 2020 passed by the District Judge, North West, Delhi restraining the appellants

herein from publishing and selling the books Pallav Series, Upvan Series, Bhasha Sanjeevani and Baal Sansar till the disposal of the suit being CS

(Comm) No. 453/2019.

Learned counsel for the appellants submits that the District Judge has erred in his order because the respondent had not proved his rights as sole

author in the books published by the appellants and that the District Judge has ignored the fact that the publication house has the copyright in every

book published.

A perusal of the paper book reveals that that the learned District Judge has granted limited injunctions and given cogent reasons for the same. The

relevant portion of the said order is reproduced herein below:-

“17. Ld. Counsel for plaintiff has shown me the books in which name of Dr. Piyush Kumar Sharma has been mentioned as author and

editor (Lekhak Avem Sampaadak). All these books were published by Mascot Press Pvt. Ltd. There is no written contract or document

regarding the relations between the plaintiff and defendants. In such situation, the Court has to decide as to who is the owner of copy right

in respect of the books in question.

As per Section 17 of The Copy Right Act, 1957, the author of a work shall be the first owner of copy right. It is not the case of

defendants that plaintiff was in employment of defendant no.1 so as to bring his case within the four corners of Sec. 17 Proviso (c). Plaintiff

has filed colored photocopy of starting page of 28 books. All the books mention the writer's name as Dr. Piyush Kumar Sharma i.e. plaintiff.

This is not disputed by defendants.

Defendants have not placed on record any contract to show that their case falls under the provisos (a) to (e) to Section 17 of The Copy

Right Act 1957. Section 57 of the Act grants special right to author of a work to claim authorship of the work even after assignment of his

copy right.

It is not the case of the defendants that they are ""public undertaking"" and therefore, they are the first owner of the copy right as per

Section 17 Proviso (d). Accordingly, a prima-facie case is disclosed in favour of the plaintiff that he has copy right of all the books of

Pallav Series, Upvan Series, Bhasha Sanjeevni and Baal Sansaar. I am not inclined to pass any order in respect of book namely ""Geet

Tarang"", ""Moti Mere Akshar"" and ""Nanhi Duniya"" because original books under these titles have not been placed on record.

Ld. Counsel for plaintiff had argued that Hema Sharma (defendant no.3) has not claimed having written any of these books in WS.

Therefore, it was submitted that she cannot claim any copy right over these books. I have considered this submission also in some books, the

name of Smt. Hema Sharma has been written as ""sub-editor"" and in some of the books, she has been designated as assistant writer.

Therefore, it is clear that at the most she assisted the plaintiff in writing the book and she cannot claim any copy right over these books. I

would further like to mention here that two books of ""Bhasha Sanjeevini"" of series 5 have been filed by the plaintiff. On first book, the

name of plaintiff has been mentioned and name of Hema Sharma has been written as ""Sahayak Lekhika"". On the second book of ""Bhasha

Sanjeevini"" series 5 simply the names of ""Seema Ahuja"" and ""Hema Sharma"" have been written in Hindi but nothing is mentioned as to

whether they are writers of the books or not. Perusal of both the books would show that contents of both the books are same. Therefore, it

is clear that the second book of Bhasha Sanjeevini, series 5 in which name of plaintiff has not been written as an author is direct

infringement of copy right of the plaintiff.

Accordingly, defendants no. 1 to 4 and 6 are restrained from publishing and selling the aforesaid all the series of books namely Pallav

Series, Upvan Series, Bhasha Sanjeevni and Baal Sansaar being authored by the plaintiff till disposal of the present case. Further,

defendants are also restrained from publishing and selling any book with same or similar contents of the above mentioned books till

disposal of the suit.â€​

In Wander Ltd. and another v. Antox India P. Ltd., 1990 (Supp) SCC 727 the Supreme Court has delineated the principles on which a Division

Bench may interfere with discretion exercised by the Trial Court.

The relevant portion of the said judgment is reproduced herein below:-

“14. The appeals before the Division Bench were against the exercise of discretion by the Single Judge. In such appeals, the Appellate

Court will not interfere with the exercise of discretion of the court of first instance and substitute its own discretion except where the

discretion has been shown to have been exercised arbitrarily, or capriciously or perversely or where the court had ignored the settled

principles of law regulating grant or refusal of interlocutory injunctions. An appeal against exercise of discretion is said to be an appeal on

principle. Appellate Court will not reassess the material and seek to reach a conclusion different from the one reached by the court below if

the one reached by the court was reasonably possible on the material. The appellate court would normally not be justified in interfering

with the exercise of discretion under appeal solely on the ground that if it had considered the matter at the trial stage it would have come to

a contrary conclusion. If the discretion has been exercised by the Trial Court reasonably and in a judicial manner the fact that the

appellate court would have taken a different view may not justify interference with the trial court's exercise of discretion.â€​

Keeping in view the aforesaid, the present appeal is dismissed. However, the appellants are given liberty to move the District Judge for an

expeditious disposal of the present suit. With the aforesaid liberty, present appeal and application stand disposed of.

The order be uploaded on the website forthwith. Copy of the order be also forwarded to the learned counsel through e-mail.