1 1 ao 825.10.doc srk IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION APPEAL FROM ORDER NO. 825 OF 2010 WITH CIVIL APPLICATION NO. 1034 OF 2010 Shri Chintamani ....Appellant Versus Mr. Kedar Shinde Productions & Ors. ...Respondents Mr. N.V.Walawalkar, Senior Advocate with Mr. A.L. Gore for Appellant. Mr. V.T.Tulzapurkar a/w Mr. S.B. Prabhavalkar a/w Mr. N.M.Sahhardande and Mr.M.P.Bhansali for Respondent nos.1 to 3. CORAM : R.C. CHAVAN, J. DATED : 2ND AUGUST, 2010. P.C.: 1 This Appeal is directed against the order passed by the learned Judge, City Civil Court on Notice of Motion in Short Cause Suit No.1419 of 2010 whereby the learned Judge rejected the Notice of Motion and refused to grant an injunction to restrain the Respondents from going ahead with performance of the play ‘Sahi Re Sahi’ in the new name ‘Punha Sahi Re Sahi’. 2 Facts which are material for deciding this Appeal are as under: Mr. Kedar Shinde is the author of play ‘Sahi Re Sahi’. On 15 th August, 2002 he is alleged to have written to the Appellant–Plaintiff that he 2 1 ao 825.10.doc was assigning rights to stage the play to her, including the rights to perform play in Gujarathi, Hindi and English languages. This assignment dated 15 th August, 2002 does not contain any particulars as to the geographical limits within which this assignment was co-operate, or the time for which it was to be current. But in view of the provisions of section 19 of the Copyright Act when such geographical limits or the period of assignment is not mentioned, the period is five years and the territorial extent of assignment is whole of India. According to the Appellant, the Appellant lastly performed the play in October, 2009. 3 The Respondent sought to perform the play again in the name “Punha Sahi Re Sahi”. It is not necessary to go into the script of the two plays since for the sake of argument the Respondent do not dispute that ‘Punha Sahi Re Sahi’ may be same as ‘Sahi Re Sahi’ may be substantially the same as ‘Sahi Re Sahi’. Therefore, this Appeal is being decided on the assumption that the scripts of both the plays are same. 4 The learned trial Judge held that he had no jurisdiction to entertain the suit and therefore refused to grant an injunction. He held that the suit pertains to infringement of Copyright and therefore, aught to have been filed before the Original side of the High Court which was the principal court of original civil jurisdiction for Greater Mumbai. Therefore, 3 1 ao 825.10.doc he refused to issue injunction which had been prayed for by the Appellant. Aggrieved thereby the Appellant is before this Court. 5 I heard the learned counsel for the Appellant. The learned counsel for the Appellant submitted that section 3 of the Bombay City Civil Court Act, 1948 whereby the City Civil Court was established would vest the jurisdiction to try the suit in the City Civil Court. He submitted that since he had not claimed any monetary compensation and had sought to reserve his rights under Order II, Rule 2 of the Civil Procedure Code, there was no question of the suit being the beyond the limits of pecuniary jurisdiction of the City Civil Court. He submitted that the City Civil Court replaced the High Court as the Principal Court of Original Civil Jurisdiction in respect of the matters within the pecuniary of limits of the jurisdiction of the City Civil Court except in respect of clauses (a) to (d) of section 3. There is no dispute that clauses (a), (b) and (d) are not relevant for the purpose of present Appeal. Clause (c ) of Section 3 of the Bombay City Civil Court Act, 1948 reads as under: (c ) by the High Court under any special law other than the Letters Parent, or 6 The learned counsel submitted that in view of the provisions of section 12 of the Bombay City Civil Court Act, 1948, the High Court does 4 1 ao 825.10.doc not have jurisdiction to try the suit and proceedings cognizable by the City Civil Court. Therefore, according to him, unless any special law provides that a matter has to be tried by the High Court alone, the jurisdiction of the City Civil Court would not be barred. He submitted that section 62 of the Copyright Act, 1957, does not refer to the High Court as the Court in which the proceedings ought to be instituted. Section 62 of the Copyright Act, 1957, may be usefully reproduced as under for ready reference: 62. Jurisdiction of Court over matters arising under this Chapter – (1) Every suit or other civil proceeding arising under this Chapter in respect of the infringement of copyright in any work or the infringement of any other right conferred by this Act shall be instituted in the district Court having jurisdiction. (2) For the purpose of sub-section (1), a “district Court having jurisdiction” shall, notwithstanding anything contained in the Code of Civil Procedure, 1908 (5 of 1908), or any other law for the time being in force, include a district Court within the local limits of whose jurisdiction, at the time of the institution of the suit or other proceeding, the person instituting the suit or 5 1 ao 825.10.doc other proceeding or, where there are more than one such persons, any of them actually and voluntarily resides or carries on business or personally works for gain. Explanation. - For the purpose of sub- section (2), “person” includes the registered proprietor and the registered user. 7 It thus provides that the suit shall be instituted in the District Court having jurisdiction. The term District Court itself has not been defined and it is not in dispute that under sub section 4 of Section 2 of the Code of Civil Procedure ‘district’ has been defined as ‘the local limits of the jurisdiction of a principal Civil Court of original jurisdiction’. Therefore, by implication ‘District Court’ means ‘the principal court having ordinary original civil jurisdiction’. Therefore, suits or other proceedings in view of the provisions of section 62 of the Copyright Act, 1957 would have been filed in the Principal Court having ordinary civil jurisdiction. 8 The question therefore is whether the City Civil Court at Mumbai is such a Court or a District Court. The learned counsel for the Appellant submitted that a similar question had arisen before the High 6 1 ao 825.10.doc Court at Calcutta in Maheshwar Swain vs. M/s Vidyut Probha Art Press and another reported at AIR 1971 Calcutta 455. He submitted that the provisions of the Act whereby the City Civil Court was established in Calcutta are similar to the provisions of the Bombay City Civil Court Act and after considering those provisions the Calcutta High Court held that for the purpose of section 62 of the Copyright Act, the City Civil Court has original civil jurisdiction, and therefore held that the City Civil Court had the jurisdiction to try a proceeding for infringement of Copyright in the light of the provisions of section 62 of the Copyright Act. The learned counsel submitted that this decision had been followed by this Court in Pravin R. Geglani vs. M/s. Beharilal Beniprasad Pvt. Ltd. reported in AIR 1978 Bombay 255. The dispute in that case was not related to the Copyright Act, 1957 but pertained to execution of a decree by a court at Aden. In that context this court examined the question as to which was the district court for Mumbai and held that the City Civil Court had the necessary jurisdiction. While doing so the learned single Judge had placed reliance on the aforesaid judgment of the Division Bench of Calcutta High Court. 9 The learned counsel for the Respondents relied on the judgment of Division Bench of this court Mohan Meakin Ltd. vs. The Pravara Sahakari Sakhar Karkhana Ltd. reported at LXXXIX Bombay Law 7 1 ao 825.10.doc Reporter 356. In that case, the Court while considering an Appeal as well as a Reference, the question referred for the decision of the Division Bench was “Whether a suit of the nature referred to in Section 105 of the Trade and Merchandise Marks Act, 1958, the valuation of the suit being Rs.50,000/- or less, is triable by the High Court or City Civil Court, having regard to the definition of District Court in section 2 (4) of the Code of Civil Procedure.” 10 On this question the Court held that the suit was one covered by clause (c ) of section 3 of the Bombay City Civil Act and therefore, was cognizable only by the High Court. It had also considered the provisions of clause 12 of the Letters Patent and held that when the High Court exercises its original jurisdiction, it is deemed to be a district court and that for the purposes of the suit which had given the rise to the Appeal, the High Court was the Principal Court of original jurisdiction as defined in sub section 4 of section 2 of the Code of Civil Procedure. 11 The learned counsel for the Respondents pointed out that provisions of section 105 of the Trade and Merchandise Marks Act, 1958 and section 62 of the Copyright Act, 1957, are in pari materia and provisions of section 134 of the Trade Marks Act, 1999, corresponds to section 105 of the Trade and Merchandise Marks Act, 1958. Section 134 8 1 ao 825.10.doc of the Trade Marks Act, 1999, may usefully be reproduced for ready reference as under: 134. Suit for infringement etc., to be instituted before District Court – (1) No suit - (a) for the infringement of a registered trade mark; or (b) relating to any right in a registered trade mark; or (c) for passing off arising out of the use by the defendant of any trade mark which is identical with or deceptively similar to the plaintiff’s trade mark, whether registered or unregistered; shall be instituted in any court inferior to a District Court having jurisdiction to try the suit. (2) For the purpose of clauses (a) and (b) of sub-section (1), a “District Court having jurisdiction” shall, notwithstanding anything contained in the Code of Civil Procedure, 1908 (5 of 1908) or any other law for the time being in force, include a District Court within the local limits of whose jurisdiction, at the time of the Institution of the suit or other proceeding, the person instituting the suit or proceeding, or, where 9 1 ao 825.10.doc there are more than one such persons any of them, actually and voluntarily resides or carries on business or personally works for gain. Explanation. - For the purposes of sub- section (2), “person” includes the registered proprietor and the registered user. 12 It may be seen that sub sections 2 of the two sections in both the Acts are identically worded. The object in enacting sub section 2 of section 62 of the Copyright Act, 1957 and section 134 (2) of the Trade Marks Act, 1999, was the same, namely, to enable the holder of the Copyright or the holder of trade marks to be able to file a suit at the place where he resides or carries on business. Though the expression used is “notwithstanding anything contained in the Code of Civil Procedure”, this non obstante clause was only for the purpose of excluding the provisions of the Code of Civil Procedure about territorial jurisdiction of a Court, since those provisions require filing of the suit at the place where the cause of action arises or where the defendant resides or works for gain. Instead of making the situs of action as the place where the defendant resides, sub sections 2 of this two sections shift the situs to the place where the plaintiff resides. This is the only change which was sought to be brought about, and these sub sections did not provide for any different definition or interpretation of 10 1 ao 825.10.doc the term district court. Therefore, in view of the judgment of the Division Bench of this Court, interpreting a provision in pari materia, in an enactment of the some genus, i.e. protection of intellectual property, it would be impermissible to hold that the City Civil Court would have jurisdiction to try an action for infringement of the copyright under the Copyright Act, 1957. The Division Bench had duly considered the judgment of learned single judge in Pravin R. Geglani (supra), which in turn had considered the judgment of Calcutta High Court, and observed that the decision in Pravin R. Geglani has no application. Therefore, in view of this pronouncement by the Division Bench, there will be no option but to uphold the judgment of the City Civil Court rejecting the Appellant’s Notice of Motion for want of jurisdiction. 13 The judgment of full bench of this Court in Romila Jaidev Shroff vs. Jaidev Rajnikant Shroff reported at AIR 2000 BOMBAY 356 holding that in relation to matters within the jurisdiction of Family Court, the High Court would cease to be the court of ordinary original jurisdiction, on which the Appellant’s learned counsel relied, may not be decisive of the matter. The question is no longer whether City Civil Court replaces the High Court as Principal Court of ordinary original civil jurisdiction within its pecuniary limits, but whether jurisdiction of City Civil Court is excluded by the exception carved out by clause (c ) of 11 1 ao 825.10.doc section 3 of the Bombay City Civil Court Act, 1948. And, in the face of judgment of Division Bench so holding in respect of an enactment in pari materia, it would be impermissible to hold that clause (c) has no application though Copyright Act does not provide for trial by the High Court; and that it provides for trial only by the District Court, because even section 105 of the Trade and Merchandise Marks Act provides for trial by District Courts, and yet the Division Bench has held that actions thereunder attract clause (c) of the Section 3 of the Bombay City Civil Court Act. 14 The Appeal from Order is therefore dismissed. 15 In view of the dismissal of the Appeal from Order, the Civil Application does not survive, therefore, same stands disposed of. (R.C. CHAVAN, J.)