1990CLC714 (PLP)

Date of hearing: 15th November, 1989. MUKHTAR AHMED JUNEJO, J.‑‑Appellant Shakeel Adilzadah, Editor and Publisher of a magazine namely `SABRANG' has filed this appeal against an order dated 28‑9‑1989 passed by learned Single Judge dismissing his application for interim injunction moved in Suit No.947 of 1989.

2. Admittedly respondent No.2 Shoukat Siddiqui is author of a novel entitled "JANGLOOS", the instalments of which were being contributed by him to the appellant for being published in SABRANG and for each installment the respondent No.2 was being paid Rs.3,

000. In the aforesaid manner, the petitioner has by now paid to the respondent No. 2 the cost of 42 instalments at the rate of Rs.3,000 per installment, the first installment having been paid for on 1‑8‑1977 and the last installment having been paid for on 30‑12‑1980. Out of 42 instalments supplied to the appellant, 28/1‑2 have been published in the monthly publications of SABRANG while 13/1‑2 instalments are yet to be published in the said magazine.

3. Subsequently in November, 1986, the respondent No.2 got published the first volume of his novel "Jangloos" through the respondent No.3, as alleged by the appellant in his Suit No.947/89 which he filed in this Court for issue of injunction restraining the respondents from publishing, telecasting, producing, filming, marketing, exhibiting, selling, exploiting, assigning and dealing with novel `JANGLOOS' in any form whatsoever and also for recovery of damages from the respondent. Appellant further stated in his plaint that he protested over this with the respondent No.2, who assured that till all the series of Jangloos were not published in SABRANG he would not publish any part of the novel nor would give any unpublished part of the novel for film making or telecasting, Appellant alleged that on 1‑9‑1989 he came across a copy of second volume of Jangloos again published by the respondent No.3 in violation of alleged rights of the appellant. Subsequently, Pakistan Television started telecasting story of Jangloos and this gave fresh annoyance to the appellant who tried to convince the respondent No.2 that it would be wrong for him to permit telecasting of the novel without permission of the former. It was alleged that the respondent No.2 failed to settle the matter and consequently there was exchange of notices and ultimately said suit was filed.

4. In said suit the appellant moved an application for interim injunction seeking issue of interim injunction against the respondents in the terms identical with the prayer in the suit. Said application was dismissed under the impugned order. Hence this appeal.

5. Mr. Iqbal Kazi, learned counsel for the appellant referred to section 15 of the Copyright Ordinance and argued that the appellant had acquired exclusive right in respect of 42 instalments of JANGLOOS for which he had made the payment and consequently neither the respondent No.2 nor any body else had right to publish or telecast any of those instalments. In respect of the term "Assignment", learned counsel for the appellant referred to para.754 of Halsbury's Laws of England Volumn VIII. In support of his case learned Counsel for the appellant cited the cases reported as (i) PLD 1968 Dacca. 455, (ii) AIR 1973 Mad. 49, (iii) AIR 1975 Delhi 130 and (iv) AIR 1935 Cal. 508.

6. Mr. Izhar Haider Rizvi, learned Counsel for the respondent No.2 argued that respondent No.2 was a renowned author inasmuch as some of his works were translated in different languages of the world and Rs.3,000 for each installment were paid to him as a "NAZRANA" and not as price. It was further argued that there was no agreement between the appellant and the respondent No.2 putting any restriction on the respondent No.2. in respect of his noval "Jangloos" which was in the process of being written and that the appellant had no copyright as defined by section 3 of the Copyright Ordinance.

7. Mr. AA. Shareef, learned Counsel for the respondent No.l argued that first volume of Jangloos was published as far ago as in 1986 without any protest from the appellant in the shape of a notice or a suit. Learned Counsel for the respondent No.l referred to various publications, the copies of which have been filed in the case showing that proposal to televise the drama Jangloos came in the papers long ago without inviting any protest from the appellant. It was further argued that the respondent No.l. Pakistan Television Corporation had spent a huge amount on filming of 17 episodes of Jangloos out of which nine episodes were telecast and that on each episode respondent No.l was spending Rs.1,25,

000. It was further stated that respondent No.l had also committed itself with 8 commercial firms who had sponsored exhibition of T.V. drama Jangloos and who had paid lacs of rupees to the respondent No.l, particulars of which were filed in the case.

8. Admittedly there was no agreement between the appellant and the respondent No.2 on the basis of which the appellant was paying Rs.3,000 for each installment of Jangloos to the respondent No.2, although such payments are admitted by the respondent No.2 and photo copies of such receipts have been produced in the case and in the receipts it has been mentioned that the amount was paid for purchase of "Jangloos" series. Case of the respondent No.2 in respect of these receipts was that his signatures were obtained on the blank receipts. However, that is a matter to be determined during trial of the case. Presently there is nothing on the record to show as to what were the terms and conditions on the basis of which the appellant was paying Rs.3,000 for each installment of Jangloos to the respondent No.2. At the same time it cannot be said that no responsibility lay on the respondent No.2 in respect of the instalments of Jangloos which he passed on to the appellant for money. In our view prima facie the appellant was entitled to have those instalments published in his magazine before the same were published elsewhere or telecast. In this respect, learned counsel for the respondent No.l made statement at the bar that whatever episodes of Jangloos had been telecast or recorded the same were out of volumes 1 and 2 of the novel which do not include 13/1‑2 installments not published by the appellant. It was stated at the bar that SABRANG is monthly magazine but it was not being published regularly and sometimes it was published with interval of one year or 1/1‑2 years. On our suggestion respondent No.2 was agreeable not to allow publication of 13/1‑2 instalments to any other person for a period of six months in order to enable the appellant to publish the same within the above period, but the learned counsel for the appellant requested for 18 months to which the respondent No.2 was not agreeable. In our view, there was corresponding duty on the appellant to regularly publish the instalments of Jangloos after receiving the same from the respondent No.2, the last installment of which was received by him about 9 years back on 30‑12‑1980. Obviously the appellant cannot make the respondent No.2 wait for years together till all the instalments of Jangloos supplied to the appellant were published in SABRANG Digest because that would not be equitable. Furthermore, the appellant in his suit has claimed damages and this shows that no irreparable loss would be occasioned to the appellant by non‑issue of the interim injunction.

9. Para.754 of Halsbury's Laws of England Volume VIII says that an assignment to pass the legal title to the right assigned, must be in writing signed by the owner of the right in respect of which the assignment is made or by his duly authorised agent and must be in respect of a work which is in existence at A the time when the assignment is made and that such an assignment does not require to be expressed in any particular form of words and it may be contained in letters. Viewed from any angle, in the present set of circumstances, it cannot be said that the respondent No.l assigned to the appellant the legal title in respect of the instalments of Jangloos in terms of para.754. The authorities cited on behalf of the appellant do not help him. The case of East Pakistan School Text Book Board v. Debabrata Chaki and others PLD 1968 Dacca 455 was in respect of recovery of damage for infringement of copyright and it was not a case for issue of injunction. In the case of Khemraj Shrikrishnodass v. Garg & Company AIR 1975 Delhi 130 the facts were materially different and the grievance of the plaintiff was that the defendants were printing, publishing and selling deceptively similar or colourable imitation of the plaintiffs Pan Changs (Almanac). In the case of Srimagal & Co. v. Books (India) Pvt. Ltd. AIR 1973 Mad. 49 the plaintiffs had claimed damages from the defendants for infringement of plaintiff's copyright in the Tamil translation of the auto‑biography of Pandit Jawahar Lal Nehru. It was not on the point of injunction. In the case of Kamala Book Depot Limited v. Sourendranath Mukherji and another AIR 1935 Cal. 508 the defendant sold first edition of a novel and then published the novel in another form and the view taken was that sale of the first edition amounted to an assignment of an interest in the copyright until the last copy of that edition was sold and that the defendant's action amounted to an infringement of plaintiff's right. In said case too the damages were ordered to be paid to the plaintiff. In the present case there was no sale of the 42 instalments of Jangloos by the respondent No.2 to the appellant.

10. In view of above, although we dismiss the appeal in limine but would record that respondent No.2 would not allow publication of remaining aforesaid 13/1‑2 instalments of the Novel Jangloos to other respondents or to any other person for a period of six months in order to enable the appellant to publish the same first in his magazine either in piecemeal or in one publication. This portion of the order would be conveyed to the parties. These are the reasons for our short order dated 15‑11‑1989 by which we dismissed this appeal in limine. M.BA./S‑525/K Appeal dismissed.