I.D. Dua, C.J.

1. The Plaintiff has appealed to this Court from the judgment and decree of the learned District Judge. Delhi, dated 5th September, 1960 dismissing the plaintiff-appellants suit for permanent injunction against the defendants, their agents and servants, restraining them from exhibiting the film New Delhi at any place whatsoever and for accounts of the profits made by the defendants upto the dale of the suit.

2 The plaintiff who is an architect by profession and carries on the said business in the partnership under the name and style of M/s Anand Apte and Jhabvala at Delhi, also claims to be a Playwright Dramatist and producer of Stage plays. He claims to have written and produced at Delhi and other places plays entitled Desh Hamara Azadi Elections and Ham Hindustani, having produced several other plays as well. The present litigation is concerned with the play Hum Hindustani which, according to the plaintiff s case, was written by him in Hindi in or about 1953. It was produced by the plaintiff for the first time from 6th to 9th February, 1954 at Wavell Theatre, New Delhi under the auspices of the Indian National Theatre. This play received great approbation from the press and the public and as a result of its popularity, was staged again from 11th to 14th February, 1954, Wawell Theatre, New Delhi and from 22nd to 29th September 1954 at the site of the Indian National Theatre, New Delhi. It was staged on the Prize Distribution Day of the National Drama Festival arranged by the Government of India explored the possibility of its exhibition on the screen. In November, 1954, he received a letter dated 19th November, 1954 from Mohan Sehgal, defendant No. 2, informing the plaintiff that one Mr. Balwant Gargi, a common friend of the parties, had supplied the said defendant with a synopsis of the play Hum Hindustani A request was made to the plaintiff to supply a copy of the said play with the object of producing it on the stage and also of exhibiting it on the screen. The plaintiff on 30th November, 1954 informed the said defendant that since this play had been selected for being staged during the National Drama Festival on 11th December, 1954, the said defendant should come and see it for himself where after the potentialities that it possessed for its being screened could be discussed., Round about January, 1955, Mohan Sehgal, defendant No. 2, and Inder Raj Anand defendant No. 3, came to Delhi and the plaintiff in his office read out to them and explained the entire play, the parties also discussing the potentialities for making a film. Mohan Sehgal, defendant No. 2, promised to let the plaintiff know his reaction in due course, but the plaintiff did not hear from him in this connection thereafter. In or about May, 1955, Mohan Sehgal announced the production of a motion picture entitled NEW DELHI. One Mr. Thapa, one of the artists in the play produced by the plaintiff, who was in Bombay at the relevant time informed the plaintiff that the proposed motion picture NEW DELHI announced by defendant No. 2 was based on the plaintiffs play Hum Hindustani On 30th May, 1955, the plaintiffs accordingly wrote to defendant No. 2 expressing his concern over the adoption of his play for the proposed motion picture NEW DELHI. On 9th June 1955 defendant No 2 * * * * * treatment, dramatic construction, characters, plot twists and dialogues of the motion picture had not the remotest association with the plaintiff s play. On this assurance, the plaintiff did not pursue the matter further. The picture NEW DELHI was announced to be released in Delhi and 15 stations of U. P. and Punjab on 7th September, 1955 at various picture houses, including the picture-houses run by defendant Nos. 16 to 18 at Delhi and New Delhi. It was also announced to be released in Bombay in the cinema houses run by defendant Nos. 19 to 21 from 14th September, 1966 Indeed, the picture was actually released on those dates. In the announcement, it was stated that defendant Nos. 1 and 2 were the producers of the said picture and defendant Nos. 2 to 8 had written the story and screen-play and defendant Nos. 5 to 15 were the distributors of the picture in the various territories in India and abroad. It is in these circumstances that the suit out of which the present appeal arises was instituted by R. G. Anand plaintiff-appellant in September, 1956. In the plaint, 18 points were stated to bring out the act of piracy committed by the defendants by infringing the plaintiffs copyright in the play Hum Hindustani. The defendants had in fact adopted the plaintiffs play as the subject-matter of their film without the plaintiffs knowledge or consent.

3. In a joint written statement by defendant Nos. 1 and 2, the plaintiffs contentions were controverted and it was pleaded that defendant No. 2, who was the sole proprietor of M/s. Delux Films, defendant No. 1, was also a film director with two previous box-office successes to his credit viz , the films Aulad and Adhikar. In or about November, 1964, defendant No. 2 discussed with one Mr. Balwant Gargi, a playwright of repute, some new ideas for the stage and the screen and during the discussion, defendant No. 2 told Mr. Gargi that the former was interested in introducing a motion picture with provincialism as its theme. In the context of this discussion, Mr. Gargi enquired from defendant No. 2 if the latter was interested in hearing a play called Hum Hindustani produced by Mr. Anand of New Delhi, which play had also provincialism as its theme. On this occasion, Mr. Gargi narrated the list of the said play to defendant No 2. Both the defendants denied that Mr. Gargi had supplied to defendant No. 2 a synopsis of the play. According to the averments of these defendants, the plaintiff had read out to defendant No. 2 his play sometime in November, 1954 in the presence of Mr. Rajinder Bhatia and Mr. Mohan Kumar, who were working as Assistant Directors under the second defendant. After the plaintiff had read out his play to the second defendant, the potentialities for making it into a film were immediately discussed and the second defendant clearly indicated his mind to the plaintiff by telling him that the play was all right for the amateur stage, but it was far too inadequate for the purpose of making a full-length commercial motion picture. In paragraph No. 6 by these two defendants, it was pleaded that the defendants would crave leave to refer to the whole of the appreciation of the play when produced, it being added that mere similarity in theme, even if there be any, was not sufficient for founding a cause of action for a suit for infringement of copyright. The defendants also pleaded in paragraph No. 9 of the written statement that they would refer to the script of the play Hum Hindustani filed by the plaintiff in the Court and to the script of the picture NEW DELHI to be filed in the Court by them and further to the duly censored print of the said picture for the purpose of determining whether there was any infringement of the plaintiffs copyright, as alleged in the plaint. The comparison drawn by the plaintiff between the play and the picture was, according to their plea, misconceived and ill founded. All the 18 points referred to in the plaint were commented upon and the plaintiff s pleas controverted. It is unnecessary to refer to the written statements filed by the other defendants.

4. In the plaintiffs replication to the written statement by defendant Nos. 1 and 2, it was pleaded that each similarity between the play and the film is not to be taken in its isolation but the similarities are to be considered collectively to arrive at a finding as to whether or not the film is an infringement of the copy right of the plaintiffs play.

5. The pleadings of the parties gave rise to the following issues:

1. Is the plaintiff owner of the copyright in the play Hum Hindustani

2. Is the film NEW DELHI an infringement of the plaintiffs copyright in the play Hum Hindustani

3. Have defendants or any of them infringed plaintiffs copyright by producing, or distributing or exhibiting the film NEW DELHI

4. Is the suit bad for misjoinder of defendants and causes of action

5. To what relief is the plaintiff entitled and against whom

6 The learned District Judge in an elaborate judgment dealt with all the 18 points of similarity urged at the Bar and came to the conclusion that the incidents and dramatic situations were essentially different from those in the play and it could not, therefore, be said that there was any fraud or artful disguise on the part of the Defendants. It was added that though it could be stated that the play Hum Hindustani and the film NEW DELHI dealt with the same idea and subject, the episodes and incidents which have been depicted in the play and the film to portray the idea and the subject are essentially different. On this view, the suit was dismissed, the parties being left to bear their own costs.

7. On appeal, the learned Counsel for the plaintiff-appellant has in a very clear cut and concise argument challenged the conclusions of the Court below and the learned Counsel for the respondents has in an equally able and logical manner addressed arguments supporting the lower Courts judgment. The submissions at the Bar in this Court are really confined within very narrow limits, as the only point convassed relates to the amounts to an infringement of the plaintiffs play Hum Hindustani, no other point having been raised at the Bar of this Court in the present appeal. Insofar as the legal position is concerned, the parties before us are not at issue, though both sides have drawn our attention to the decided cases and to certain sources of law. We consider it appropriate at this stage to refer to the cases cited at the Bar and then to state what we consider to be the well cognised principles of law applicable to cases like the present The first decision to which our attention has been drawn by the learned Counsel at the Bar is the well-known decision in Corelli v. Gray, (1913) 2 AIR 116, a judgment by the English Court of Appeal on appeal from the decision of Sargant, J. in the same case reported as Corelli v. Gray, (1912-13) 29 TLR 570. The Court of Appeal, it may be pointed out, agreed with the decision of Sargant, J. who had granted an injunction to the plaintiff and had also ordered an account of profits to be taken and further directing the deliverying the infringing documents. The following passage from the decision of Sargant, J. was reproduced with approval by the Court of Appeal:

But the combination of these ordinary materials may nevertheless be original, and when such a combination has arrived at a certain decree of complexity it becomes practically impossible that it should have been arrived at independently by a second individual... ......In my judgment the similarities arid coincidences to be entirely inexplicable as the result of mere chance concidence

In the reported case, defendant Gray was a composer of a sketch or play called The Peoples King and the plaintiff complained that this work infringed her copy right in the book Temporal Power. In the background of the passage quoted above, the Master of the Rolls thought that the Court must approach the case on the footing that defendant Gray had the book Temporal Power either under his eyes or in his memory when he wrote his sketch. It was still considered open to the defendant to say that he had not infringed to copy right because he had only taken from the book something which was not the subject of the copyright, but, according to the Court of Appeal, when it appealed that not merely one, two or three stock incidents had been used, but a combination of stock incidents, every one of which had been taken from the plaintiffs book it would be narrowing the law beyond what was reasonable to say that the plaintiff was not entitled to be protected. Without going into the question as to whether all the situations, taken by the defendant were stock situations, in the Courts view, the mere fact that in a sketch of six scenes, there were not found in any other book, was quite enough to bring the case within Section 1 of the Copyright Act of 1911. Hanfstaengl v. W. H. Smith and Sons, (1905) 1 Ch.D 519, was a case in which the plaintiff, the owner of the copyrights in several works of art, including photographic illustration, which appeared in the advertisement portion of a well known magazine was an infringement of his copyright in the said picture. Kekewich, J. in the course of his judgment made the following instructive observations:

It is, I think, obvious that for the purpose of the Act under consideration the word copy cannot be limited t) a reproduction of this character, but it is not equally easy to say to what reproductions it ought to be extended. The authorities are by no means without induction on the point, but much is left open for consideration and determination. It would be impossible fully to state the law as expressed in these authorities, most of which were cited in argument, without going through them at greater length than is convenient to do here and comparing the language of different judges. Each case deals with peculiar circumstances, and the endeavour of the Court in each was rather to apply the statutory provisions to the case in hand than to lay down principles or rules by which another Court might be guided in another case disclosing circumstances entirely different.

The case of painting, in our view involves slightly different considerations from those which apply to the case of a copyright in a play which is said to have been infringed by a film to be screened. Haoker and Son (London), Limited v. Paramount Film Service, Limited, 1934 Ch.D 593, deals with the copyright in a musical composition. Consideration in the case of a copy-right in a musical composition is also not likely to serve as a direct precedent for the case in hand, Kingh Features Syndicate, Incorporated v. O Ana. M Klesman Limised, LR 1941 AC 417 was an actual fit alleged infringement of the appellants copyright in sketches portraying a fictitious character known as Popeye, the sailor, by the importation and sale of certain dolls and brooches, This case too cannot give us any direct assistance in the present case. Mecmillan and Company Limited v. K. And J. Cooper, LR 51 IA 109 is a decision of the Judicial Committee of the Privy Council in an appeal from Bombay, in which it is laid down that a reprint of selected passage from a non copyright work may been original literary work within the meaning of the Copyright Act, 1911 and the subject of copyright thereunder. The head-note which gives us a clear clue to the decision is in the following terms:

The appellants published in India a book of which the text consisted of passages selected from Norths Translation of Plutarchs Lite of Alexander, words being introduced in some instances in order that the text should form an unbroken narrative ; introductions and notes suitable for educational purposes were added. Norths Translation consisted of 40,000 words ; the text of the appellants book of 20,000. The appellants alleged that a similar book published by the respondents, also withheld, that there had not been expended upon the text of the appellants book sufficient knowledge, labour, judgment or literary skill to entitle them to copyright in it; but that they were entitled to copyright in the notes, and that as to them there had been an infringement by the respondents.

8. A Division Bench of the Calcutta High Court has in Mohni Mohan Singh and Others v. Sita Nath Basak, AIR 1931 cal. 233 [LQ/CalHC/1930/21] considered the law and made some instructive observations. It is observed there that whether a work is a colourable imitation of another, must necessarily be a question of fact, and that similarity is a great point to be considered in this connection, but mere similarity is not enough as it may be due to mere hypothesis than one. Four hypothesis have been stated in that decision, viz., to (1) mere chance, (2) both works being taken from a common source, (3) the plaintiffs work being taken from the defendants, and (4) the defendants work being taken from the plaintiffs. Each case must, therefore, depend on its own circumstances. Head-notes (b) and (d) of the reported decision deserve to be reproduced. They are:

(d) Though similarity is to a large extent inevitable in certain kinds of books, such as books on certain course of study prescribed and books on alphabets etc., and each one of the points of similarity may not be worth anything, a conglomeration of so many points of similarity which, in the opinion of the defendants own expert, constitutes a strange to copyright while dissimilarity may be part of the defendants-authors fraud and artful disguise of what they had done..

(d) There were strange coincidences, series of coincident reproductions, and although it could not be said for certain that the defendants work was a mere imitation of the plaintiffs work, as there were differences and improvements in the later publication, the impression left was that the defendant in his work had largely copied the plaintiffs book. Although there has some exercise of individual choice and some judgment also in adding some new features which might be considered improvements on the plaintiffs books,

9. At the Bar reference has also been made to some passages from Copinger and Skone James on the Law of Copyright and from the Law of Copyright by Rustom R. Dadachanji. Article 317 of Coprus Juris, Volume 13, and paras 685 and 686 of Volume 8 of Halsburys Laws of England have also been cited in argument,

10. The legal position seems to us to be no longer in dispute and indeed there has been no difference of opinion in regard to the law as canvassed before us by the learned Counsel for the parties. Broadly speaking, copyright is claimable only in original literary, dramatic, musical and artistic works. Ideas and opinions are not the subject-matter of copyright. It is only the form, in which the ideas or opinions are expressed, that is protected by the law and that also to the extent that a substantial part of the form must not be appropriation of the labours of one author by another person. The work to be protected must be original expression of thought, but the owner of the copyright cannot claim a monopoly in the subject-matter. In other words, what is protected is not original thought or information but the original expression of thought or information in some concrete form. Accordingly, it would be an infringement only if the defendant makes an unlawful use of the form in which the thought or information is expressed. As the word copyright itself indicates, the right, of which the owner can claim property, is confined to copying in some form the work to which the protection by the Copyright Law is afforded and the property right does not extend to an independent production of the original. It is no defence to an action of infringement of copyright that no damage has been caused to the plaintiff, because the right of the owner of copyright is not determined or measured by the amount of actual damage to him by reason of the infringement. The law being clear, it is only in its application to a given case that the real difficulty always arises, this difficulty is posed by the question of the extent of copying and the degree of resemblance necessary establish infringement in a given case. Very frequently, the alleged infringement does not consist of an exact or verbatim copy of the whole or any part of the earlier work, but of mere resemblance in a greater or lesser degree. It is in such cases that the Court has to solve the difficult problem whether there has been copying at all, and, if so, does it amount to infringement of the plaintiffs copyright. In such a case, the question must essentially and basically be one of circuit stands of each case.

11. Applying to the present case the rule of law just enunciated, we find that the analysis and conclusion of the learned District Judge are both fair and reasonable. Both the parties have produced in this Court in the course of the arguments a comparative analysis of the play and the film in question and whereas the appellant has tried to bring out prominently the features of similarity justifying, according to the plaintiffs case, a conclusion of infringement, the respondents Counsel has pointed out various dissimilarities in the expression of the idea of evils of provincialism and various material differences in the settings in the plot. In the light of the synopsis produced before us, we have consideredthe 18 points of similarity alleged in the plaint which may appopriately be read at this stage:

(i) Before the actual stage play, the producer gives a narrative. He states that although we describe ourselves as Hindustanis we are not really Hindustani. He questions the audience as to what they are and various voices are heard. To say in other own provincial languages that they are Punjabis, Banaglis, Gujaratis, Marathas, Madrasis, Sindhi, etc. In the said Film the same ideas is conveyed and the here of the picture shown searching for a house in New Delhi and wherever he goes he is confronted by a landlord who described himself not as a Hindustani but as a Punjabi, Bengali, Gujarati, Maratha, Madrasi or Sinidhi.

(ii) Both the said play and the said Film deal with the subject of provincialism.

(iii) Both the said play and the said Film evolve a drama, around the lives of two families, one a Punjabi family and the other a Madrasi family.

(iv) in both the said play and the said Film, the name of the Madrasi father is Subramanyam.

(v) Both the said play and the said Film have their local in New Delhi

(vi) Both the said play and the said Film show cordiality of relations between the two families.

(vii) Both the said play and the said Film show the disruption of the cordial relations as soon as the heads of the families discover the existence of a love affair between their children.

(viii) In both the said play and the said film, both the parents warn their respective children not to have any thing to do with each other on pain of corporal punishment.

(ix) The entire dialogue in both the said play and the said film before and after the disruption is based upon the superiority of the inhabitants of one province over the inhabitants of the other.

(x) In both the said play and the said Film, the girl is shown to be fond of music and dancing.

(xi) In both the said Play and the said Film the hero is shown as a coward to the extent that he has not the courage to go to his parents and persuade them to permit him to marry a girl hailing from another province.

(xii) Both in the said play and in the said film, when the parents of the girl are discussing marrying her of to somebody, the girl is listening to the dialogue from behind a curtain. Thereafter the girl runs to the boy and explains the situation to him.

(xiii) In both the said play and the said film, the girl writes a letter of suicide.

(xiv) In the said play reconciliation takes place when the children of the two families, who were in love, go out to commit suicide by drowning etc. whereas in the said film it is only the daughter who goes but to commit suicide by drowning herself in the Jamna.

(xv) In the said play the children are stopped from committing suicide by an Astrologer whereas in the said Film the girl is stopped from committing suicide by a friend of the family.

(xvi) In the Paid play reconciliation between the two families takes place only after they have experienced the shock of their children committing suicide on account of their provincial feelings whereas in the -film the father of the girl realised his mistake after experiencing the shock of his daughter committing suicide.

(xvii) In both the said Play and the said Film, stress is laid on the fact that although India is our country, yet there is acute feeling of provincialism between persons hailing from its various States even though they work together and live as neighbours.

(xviii) Both in the said play and in the said film, even the dialogue centres around the same subject of provincialism.

Having directed our most careful attention to the material on the record and the arguments addressed at the Bar, we are unable to hold that the defendants film can on any reasonable hypothesis be considered an infringement of the plaintiffs play. The idea of bringing into prominonce the evils of narrow provincialism and impressing upon the public that intrinsically a young Indian is averse to the narrow artificial barriers of provincialism, and similar is the case with the older generation when they apply their rational mind to this question, is of course common to both the play and the film. The main actors in both are also children of a Punjabi and a Madrasi family, but that by itself cannot, according to the proposition of law settled above, constitute on infringement of the copyright. At best it can only amount to similarity of idea and no more. Even if the broad base of the play and the film may have some common elements, we are extremely doubtful if this degree of similarity of the idea and the broad base or even a broad outline of that were so can bring the defendants film within the mischief of the law of copyright. It is true that the defendants had taken some assistance or may have developed their idea of exposing the irrational basis of petty provincialism from the version of the plaintiffs play as conveyed to them but this is not enough to entitle the plaintiff to relief on the plea of infringement of his copyright. All the 18 points, on which emphasis has been laid by the plaintiff, do not establish more than this.

13. In the final result, therefore, the judgment and the decree of the Court below seems to us to be unexceptionable, with the result that we affirm the same and dismiss the present appeal. In the peculiar circumstances of the case, however, we make no order as to costs.