Lok Nath Prasad Gupta v. Bijay Kumar Gupta

R.C. Lahoti, J.

1. Section 62 of the Copy Right Act, 1957 read in juxtaposition with Section 20 of the Code of Civil Procedure, 1908, which forum can a plaintiff invoke complaining of infringement of copyright or infringement of any other right conferred by the Copy Right Act, is the question arising for decision.

2. On the plaintiffs own showing, and admittedly, the plaintiff and the defendant are both residents of Calcutta. Plaintiff who is engaged in the manufacture and sale of chewing tobacco known as Khaini under the trade mark RAJA, claims copy right in the pouch which according to him coupled with distinctive colour combination get-up and lay-out constitutes an original artistic work within the meaning of Section 2(c) of the Copy Right Act (hereinafter Act, for short) and the plaintiff is the owner thereof. He complains of the defendant having reproduced the plaintiffs artistic work in his own pouch wherein he sells RATAN Khaini and is thereby committing infringement of the plaintiffs copy right. Vide Para 13 the plaintiff states, the Court has jurisdiction to entertain and try the present suit as the defendant is selling its products within the territorial jurisdiction of this Court. Moreover, this Court has jurisdiction under Section 62(2) of the Copy Right Act, 1957 as the plaintiffs carry on their business within the territorial jurisdiction of this Honble Court.

3. Apart from the above said statement in Para 13, which is the jurisdiction clause in the plaint, it is nowhere mentioned in the plaint as to how and in what manner, the plaintiff carries on his business within the jurisdiction of this Court. Nor is it stated as to how and in what manner, the defendant is selling its products within the territorial jurisdiction of this Court. The plaintiff has not alleged a single transaction of any sale of his product by the defendant himself or any one else on his behalf in the infringing pouch within the territorial jurisdiction of this Court.

4. The defendant has specifically pleaded in the written statement that this Court does not have jurisdiction to try the suit as both the parties are manufacturing chewing tobacco (Khaini) in Distt. 24-Pargana (North) West Bengal and the defendant has never sold his Khaini in the jurisdiction of this Court at any point of time. It is further alleged that the plaintiff has filed the present suit before this Court with a view to harass the defendant. The defendant lives jointly with his elder brother Shri Rakesh Kumar Gupta. Plaintiffs sister is married with the defendants brother. Their relations are strained.

5. It is well-settled that the question of jurisdiction has to be decided, prima facie, by looking into averments made in the plaint and not by the plea taken in the written statement.

6. Section 20 of the Code of Civil Procedure (hereinafter Code, for short) provides for a suit being instituted in a Court within the local limits of whose jurisdiction, the defendant or each of the defendants or one of the defendants actually and voluntarily resides or carries on business or personally works for gain (subject to leave of the Court where one of the defendants only resides within the jurisdiction of the Court) or where the cause of action wholly or in part arise.

7. Section 62 of the Act reads as under:

62. Jurisdiction of Court over matters arising under this Chapter. (1) Every suit or other civil proceedings 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, 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 other proceeding or, where there are more than one such person, any of them actually and voluntarily resides or carries on business or personally works for gain.

A bare reading of Section 62 of the Act makes it clear that Sub-section (1) of Section 62(2) overrides the provisions of CPC relating to jurisdiction of the Court to the limited extent that the suit has to be instituted only in a District Court. Subsection (2) of Section 62, as the use of the word includes therein suggests, gives an extended meaning to the phrase District Court having jurisdiction. The use of the word includes in a legislative expression by the draftsman assigns an extended meaning to the word or expression in relation to which it is used. Artificially it is made to include what would otherwise have been excluded. If there would not have been Sub-section (2) and only Sub-section (1) in Section 62 of the Act then the suits relating to infringement of copy right in any work or the infringement of any other right conferred by the Act shall have been required to be instituted in a District Court having jurisdiction determinable by reference to Sections 15 to 20 of the Code. The effect of Sub-section (2) is that a suit in respect of infringement of a right referred to in Sub-section (1) can be filed not only in a District Court having jurisdiction by reference to the Code but also in a District Court within the local limits of whose jurisdiction at the time of institution of the suit or the proceeding, the person instituting the suit or the proceeding or where there are more than one such person, any of them actually and voluntarily resides or carries on business or personally works for gain, though such a District Court would not have had jurisdiction but for the provisions of Section 62(2) of the Act.

8. Actually and voluntarily resides, carries on business and personally works for gain have the same meaning to be assigned in Section 20 of the Code or in Section 62(2) of the Act.

9. Order 7 Rule 1 of CPC enjoins a plaint to contain particulars as to the facts showing that the Court has jurisdiction. Order 6 Rules 2 and 4 require all material facts and particulars with dates and items, if necessary, to be stated in the pleadings. A Full Bench of Patna High Court has held in Smt. Fula Deviv. Mangtu Maharaj & Ors. ,AIR 1969 Patna 294:

Unless a plaintiff pleads in his plaint facts which would make the suit prima facie entertainable by the Courts it cannot be said that the plaintiff has discharged the duty put upon him by Order 7 Rule l(f) of the Code.

10. A bald assertion, as has been made in Para 13 of the plaint referred to hereinabove, without giving further facts or particulars is not enough to confer this Court with a territorial jurisdiction over the suit. The plaintiff does not allege having any shop, branch or office of his own in Delhi. The plaint also does not allege any instance of the defendant having sold the infringing goods in Delhi or having any office, branch or shop of his own in Delhi.

11. Learned Counsel for the plaintiff has cited number of judgments given below in defence of his plea of territorial jurisdiction vesting in this Court:

1. Bradyv. Chemical Process Equipment, FSR (1988) 457.

2. Amar Soap Factoryv. Public Gram, I.L.R. (1985) 1 Del. 960=28 (1985) DLT 17 (SN).

3. Glaxo v. Samrat Pharmaceuticals, AIR 1984 Del. 265 [LQ/DelHC/1983/311] .

4. Kissan Industriesv. Punjab Food, 1984 IPLR 131.

5. Nirex Industriesv. Manchand Footwears, 1984 IPLR 70.

6. Tobu Enterprisesv. Toho Cycles, 1983 IPLR 150.

7. TOMCO Ltd. v.Reward Soap, 1983 IPLR 91.

8. Deep Chand Aryav. Kiron Soap, 1981 PTC 108.

9. TOMCO Ltd.v. Hansa Chemical, ILR (1979) II Del. 236

I have gone through the decisions cited. I find nothing therein detrimental to the view taken by me hereinabove.

12. Learned Counsel for the defendant has placed reliance on the cases of Glaxo v. Samrat (supra), Tata Oil Mills Company Ltd., Delhiv.Reward Soap Works, AIR 1983 Delhi 236 and Everest Pictures Circuit, Salemv. S. Karuppannan,AIR 1982 Madras 244.

13. I am referring only to one case which is The Tata Oil Mills Co. Ltd. v. Dr. Gajras Monochem Industries, 1988 (1) TMC 1. The plaintiff-company had its registered office in Bombay and Branch Office in Delhi. The suit was filed in Delhi. Shri M.K. Chawla, J. has held vide Para 8 that Section 62(2) of the Act is an exception and to that extent altering the principles laid down in Section 20 of the Code.

14. The averments made in the plaint, as it stands, fail in conferring territorial jurisdiction on this Court. It is held that the suit does not lie within the territorial jurisdiction of this Court.

15. The plaint is directed to be returned to the plaintiff for presentation to proper Court. The suit and IA be treated as stand disposed of.