P L D 2000 Lahore 186 (PLP)

This appeal has been directed against the order dated 20‑7‑1998 through which application under Order 39, Rules 1 and 2 read with section 151, C.P.C. for grant of temporary injunction, was dismissed.

2. The appellant instituted a suit for declaration and permanent injunction under the Copyright Ordinance and Act. The brief facts relevant for disposal of the present appeal as averred by the appellant are that the appellant/plaintiff is author of book published as titled "Dekho Yeh Meray Zakham Hain" and the said book has been published by Al‑Hamad Publications on 5‑5‑1998 and is available in the market for sale since then. It is further averred that in the end of May, 1998 the appellant/plaintiff came to know that the respondent/defendant No‑1 trying to publish a book titled "Udas Honaiy Ke Din Nahen Hain" wherein she also included 47 poems and lyrics which is the poetry of the appellant/plaintiff and which has already been published in his above titled book "Dekho Yeh Meray Zakham Hain". Whereupon the appellant/plaintiff served a legal notice to respondent No.l and Abbas Tabish and Ahmad Jamalud‑Din owner of Al‑Razzaq Publications/Distributors on 25‑5‑1998 through which they were requested not to publish the poetry of the appellant in the name of respondent No.

1. It is further averred that respondent No. l also served a legal notice to the appellant on 27‑5‑1998 and alleged that the appellant alongwith Safdar Hussain, Proprietor of Al‑Hamad Publications on the alleged piracy regarding the book of respondent No. l and infringing the copy rights which she attained under the law. It is further alleged that after receiving of the notice respondent No. l got printed her book in the last week of May, 1998 but the printing date shown on the book was March, 1998 which was back dated and in her abovesaid book respondent No. l copied about 47 poems and lyrics of the appellant which has already been published in his book titled "Dekho Yeh Meray Zakham Hain". Respondent No.l filed the written statement and also reply to the application filed by the appellant under Order 39, Rules 1 and 2 read with section 151, C.P.C. wherein she denied the contents of the plaint and also the application for interim injunction. The learned trial Court vide its detailed order dated 20‑7‑1998 dismissed the application of the appellant for grant of temporary injunction. Hence this appeal.

3. In response to pre‑admission notice, Mr. Muhammad Hanif Chaudhry, Advocate has entered appearance on behalf of the respondent. The case has been heard at some length and the same is being decided as notice case. Learned counsel for the appellant has contended that the Additional District Judge under section 65 of the Copyright Ordinance, 1962, is not competent to adjudicate upon the matter and only the District Judge has got jurisdiction under Copyright Act to adjudicate upon the matter. He further contended that the respondent No. l did not deposit the book in the Office of the Director‑General Public Relations, Press Branch, Lahore, Department of Government of Punjab whereas the appellant has deposited his book to the said department on 9‑5‑1998 and in this way the respondent has violated the mandatory provisions contained in Registration of Printing Press and Publication Ordinance, 1990. The prayer made by the appellant is to the effect that the respondents may be restrained from printing, publishing and selling the next/further edition of the book "Udas Honaiy Ke Din Nahen Hain" in any manner in future till the final decision of present appeal and suit. Learned counsel for the appellant, during arguments, has also referred to page 175 of the Moon Digest of June, 1998, wherein it is mentioned that in both the books "Dekho Yeh Meray Zakham Hain" and "Udas Honaiy Ke Din Nahen Hain" near about 40 similar had been published.

4. Conversely, learned counsel for the respondent has contended that due to some dispute between the Writer and Printer Publisher of Al‑Hamad Publications, Mr. Safdar Hussian who was interested for publishing her book and negotiation to publish the same failed, the appellant in collusion with the abovesaid publisher and in order to blackmail respondent No. l instituted the present suit. He further contended that the appellant has got no case and the order passed by the learned trial Court is perfectly just and correct.

5. I have heard the learned counsel for the parties and have also perused the record. The contention of learned counsel for the appellant that under section 65 of the Copyright Ordinance, 1962, only District Judge is competent to adjudicate upon the matter and not the Additional District A Judge, has got no force. Section 6(2) of the West Pakistan Civil Courts Ordinance indicates that the District Judge could assign his functions to an Additional District Judge, who in the discharge of those functions shall exercise the same powers as the District Judge. Similarly under section 15 the District Judge can by a written order direct that any civil business cognizable by his Court and the Courts under his control shall be distributed among such Courts in such manner as he thinks fit. Section 17(1) of the said Ordinance II of 1962 contemplates that the District Judge and the Additional District Judge both can hear cases in original jurisdiction. If the District Judge is assigned his functions which are vesting in him as Judge of a District Court i.e. Principal Civil Court of original jurisdiction then the Additional District Judge shall also have the same powers in the exercise of B functions so assigned to him. Reference may be made to Abdul Samad v. Muhammad Ali and another PLD 1977 Lahore 687 wherein the Division Bench of this Court has held as under:‑‑ "It is to be remembered that the Code of Civil Procedure by itself does not create the Civil Courts. See Dost Muhainmad and another v. Rais Satik and another. These Courts, so far as relevant for our case, are created by the West Pakistan Civil Courts Ordinance (II of 1962). The statute which creates Civil Courts also makes certain provisions quite new and different from those of the Code of Civil Procedure if the matter of assignment of functions by the District Judge or the distribution of his business to Additional District Judge (on which the Code of Civil Procedure is rather quite silent or not comprehensive). "

6. The points raised by learned counsel for the appellant, therefore, in the light of the above discussion has no force. In para. 7 of his plaint the appellant has mentioned as under:‑‑ . "That the defendant No.l wrote many letters to plaintiff from time to time to write the poems and lyrics on specific subjects for her, which she claimed as her poetry. These letters show that the defendant No. l is not a poetess actually behind her poetry plaintiff is actual poet of said poetry which was published in the name of defendant No. l." This averment in the plaint clearly shows that so‑called infringement of the appellant's rights was in his knowledge and rather he acquiesced to the said infringement. In PLD 1967 Lahore 967, Begum Zainab Tiwans's case, a Division Bench of this Court has held that a party which has acquiesced in an erroneous order or irregular proceedings or even defective jurisdiction is not entitled to question it subsequently by invoking a high prerogative jurisdiction. The Book of Mst. Noshi Gillani, respondent No.1, "Udas Honaiy Ke Din Nahen Hain" was published in March, 1998, whereas the book of Munawar Jamil appellant came in market in May, 1998 and it appears that the dispute relates to the publication of second edition whereas from the pleadings of the parties it appears that the appellant is aggrieved of the publication of the book "Udas Honaiy Ke Din Nahen Hain" written by respondent No.l. The provisions contained under section 60(2) of the Copyright Ordinance, 1962, read as under:‑‑ "Where, in the case of a literary, dramatic, musical or artistic work, a name purporting to be that of the author or the publisher, as the case may be, appears on copies of the work as published, or in the case of an artistic work, appeared on the work when it was made, the person whose name so appears or appeared shall, in any proceedings in respect of infringement of copyright in such work, be presumed, unless the contrary is proved to be the author or the publisher of the work, as the case may be."

6. The bare reading of the above section shows that in the present case three essential ingredients which are necessary for grant of interlocutory relief i.e. prima facie case, balance of convenience and irreparable loss are C missing so the order dated 20‑7‑1998 passed by the learned Additional District Judge does not suffer. from any illegality or infirmity. This appeal is devoid of any force and the same is dismissed. Q.M.H./M.A.K./M‑1147/L Appeal dismissed.