Delhi High Court
Kapil Sharma & Ors. vs Piyush Sharma on 9 February, 2021
$~Suppl-15
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ FAO (COMM) 27/2021
KAPIL SHARMA & ORS. .....Appellants
Through: Ms. Namrata Malik, Advocate.
Versus
PIYUSH SHARMA .....Respondent
Through: None
% Date of Decision: 09th February, 2021
CORAM:
HON'BLE MR. JUSTICE MANMOHAN
HON'BLE MS. JUSTICE ASHA MENON
JUDGMENT
MANMOHAN, J: (Oral)
CM APPL. 31380/2020
Exemption allowed, subject to all just exceptions.
FAO (COMM) 27/2021 & CM APPL. 31381/2020
1. The appeal has been heard by way of video conferencing.
2. 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.
3. 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.
4. 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.
18. 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.
19. 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.
20. 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.
21. 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.
22. 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."
5. 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."
6. 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.
7. The order be uploaded on the website forthwith. Copy of the order be
also forwarded to the learned counsel through e-mail.
MANMOHAN, J
ASHA MENON, J
FEBRUARY 09, 2021
AS
