Kamlapati Khatri vs Sharda Prakashan And Ors.
1987 Latest Caselaw 449 Del

JUDGMENT

B.N. Kirpal, J.

(1) This is an application under Order 39, Rules 1 and Civil Procedure Code . praying for an injunction restraining the defendants from publishing literary work "BHUTNATH."

(2) The case of the plaintiff is that volumes 3 to 7 of this work were written by his father, Shri Durga Prasad Khatri, and volumes 1 and 2 were written by the plaintiff's grand-father, Shri Devki Nandan Khatri. The plaintiff contends that the defendants have no copyright in their favor and, therefore, are not entitled to publish volumes 3 to 7 of the said literary work.

(3) The defendants have filed reply and have also moved application under Order 39, Rule 4 Civil Procedure Code . The case of the defendants is that the literary work Bhutnath is written by Shri Devki Nandan Khatri and not Shri Durga Prasad Khatri. It is further the case of the defendants that Shri Devki Nandan Khatri admittedly died in the year-1913 and, according to the provisions of section 22 of the Copyright Act, 1957, all the seven volumes of the work Bhutnath except the apologue at the expiry of 50 years from the date of the death of Shri Devki Nandan Khatri became public domain.

(4) The short question, therefore, which is to be examined is whether volumes 3 to 7 were written by Shri Devki Nandan Khatri or Shri Durga Prasad Khatri ?

(5) The plaintiff in support of his case has relied upon literary historic works in order to satisfy the court that Shri Devki Nandan Khatri wrote only first two volumes and the rest of the volumes were written by Shri Durga Prasad Khatri. My attention, in this connection, has been drawn by Mr. Anand to a publication of Bhartiya Sahitya Academy as well as other publications of this score. Unfortunately, the answer to the question is not so simple. The answer has been made complicated by the plaintiff himself. It is not denied, and it is admitted, that till recently the book has been published by the Lahri Book Depot of which the plaintiff is the sole proprietor, showing Bhutnath as having been written by Shri Devki Nandan Khatri. The defendants have placed reliance on the publications of the plaintiff himself as well as the advertisements inserted by the plaintiff which tend to show that the work Bhutnath including volumes 3 to 7 were written by Shri Devki Nandan Khatri. Furthermore, the defendants have also railed on the reference books and the other literary books of Hindi Scholars, which is referred to in great detail in the application under Order 39 Rule 4 Civil Procedure Code ., in which it is stated that Shri Devki Nandan Khatri wrote the literary work BHUTNATH.

(6) Shri Anand contends that it is only for the purposes effecting sale that it was held but to the public by the plaintiff that the work Bhutnath, including volumes 3 to 7, were written by Shri Devki Nandan Khatri. The contention of the learned counsel is that in fact these volumes were written by Shri Durga Prasad Khatri.

(7) In view of the aforesaid averment, it in not possible at this stage and without more evidence on record to come to the conclusion that volumes 3 to 7 were written by Shri Devki Nandan Khatri or Durga Prasad Khatri. It is not as if here is no evidence on which the defendants can rely have not put forth their claim that the books are authored by Shri Devki Nandan Khatri. It may be that when the trial of the suit takes place that ultimately the evidence, which is led by the parties may show that the book volumes 3 to 7 were in fact written by Shri Durga Prasad Khatri and not by Shri .Devki Nandan Khatri as contended by the plaintiff. At the present moment it is not possible for me to come to a categorical conclusion in view of the divorgete of opinion, which have been expressed in the literary works of different scholars. The balance of convenience is also in favor of the defendants. The plaintiff has for over 30 years held out to the world that Bhutnath had been written by Shri Devki Nandan Khatri. It is only when the defendants have started publishing that said literary work that the disputed contention has been reside by the plaintiff in the present suit for the first time and it has been contended that volumes 3 to 7 were written by Shri Durga Prasad Khatri. If an injunction is granted and ultimately the suit is dismissed the defendants will suffer irreparable loss. On the other hand, the defendants can be put to terms so that if the plaintiff ultimately succeeds, the plaintiff will be entitled to recover such damages as may be assessed by the Court.

(8) Taking all the facts and circumstances into consideration, I direct the defendants to maintain proper accounts with regard to the said publication of the work Bhutnath and shall render the said accounts in court every quarter. At the present moment admittedly the defendants have published 2200 copies of BHUTNATH. Prior to any other copies being published, the defendants will take permission from this court. If ultimately the suit is decreed the plaintiff will be entitled to recover from the defendants the sale proceedings of the book Bhutnath volumes 3 to 7, which were published and sold by the defendants.

(9) The books, which are in superdari of the plaintiff, are directed to be returned to the defendants within one week. The defendants shall, however, give security to the satisfaction of the Registrar of this court for a sum of Rs. 2,00.000.00 . P.A. stands disposed of.

(10) Suit No. 1947/87 The counsel for the defendants states that the written-statement will be filed within two weeks. Replication will be filed within one week thereof. Documents be filed six weeks from today. The case be listed for admission and denial of documents before the Deputy Registrar on 30th November, 1987, and before the Court for framing of issues on 9th December, 1987.

(11) The counsel for the parties are agreed that the evidence be recorded on commission. Directions with regard to this will be given on the next date of hearing in court.