Khemraj Case

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1975 SCC OnLine Del 37 : ILR (1975) 2 Del 251 : AIR 1975 Del 130
In the High Court of Delhi

Appellate Civil
(BEFORE B.C. MISRA, J.)
Khemraj Shrikrishandas … Appellant;

Versus
M/S. Garg & Co. And Another … Respondents.
F.A.O. 88/1974
Decided on March 7, 1975
Trade and Merchandise Marks Act (43 of 1958), S. 27(2) — No proceedings can be
instituted for the infringement of an unregistered trade mark — infringement of a trade
mark or copyright and action in passing off explained.
Held :
That action for infringement of a trade mark (or copyright) is a statutory remedy and in pursuing
it, the plaintiff must prove his title and exclusive right to use a trade mark (or work) in question and
further establish that the defendant has infringed the same by using an identical or deceptively similar
mark or a colourable imitation of it. In this case, if otherwise established, it is not a valid defence on
the part of the defendant that it has been sufficiently indicated on the infringing goods that they are
not of the plaintiff but are those of the defendant. On the other hand, an action for passing off is a
common law remedy and its gist is deceit and not infringement of a right to an exclusive user. In
such an action, a plaintiff may, if so advised prove his title to the exclusive use of the trade mark (or
copyright) but he need not do so. What is however, essential for the plaintiff to establish are: (i)
distinctive features, (ii) substantial user and (iii) wide reputation. The law casts an obligation on the
defendant not to pass off his own goods (or work) as if they had been produced by the plaintiff and
the court will enforce the obligation. In such a case, the defendant may escape the liability by
showing that his goods (or work), though similar, distinctly indicate that they do not originate from
the plaintiff, but have been produced by the defendant. Element of deceipt may exist in both kinds of
action, but it is the essence of the passing of action. Actually deception is not required to be proved,
but reasonable ground for apprehending deception must exist.
(Para 11)
For the Appellant: Mr. Anoop Singh with Mr. N.K. Anand, Advocates.
For the Respondent: Mr. I.D. Garg, Advocate.
Cases Referred:
(1) Frant Reddaway v. George Banham, (1896) A.C. 199
(2) Leather Cloth v. American Leather Cloth Co. (11 R.L.C. 538)
(3) Metzler v. Wood, (1878) 8 Chancery Division 606.
(4) John Haig & Company Limited v. Forth Blending Company Limited and W.R.
Paterson Ltd., 1970 Reports of Patent, Design and Trade Mark cases 269.
(5) Rustom and Hornby Ltd. v. Zamindara Engineering Co., (1969) 2 SCC 727 : AIR
1970 Supreme Court 1649.
(6) Keviraj Pandit Purga Dutt Sharma v. Navaratna Pharmaceutical Laboratories, AIR
1965 S.C. 980.
Page: 252
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The Judgment of the Court was delivered by

B.C. MISRA, J.:— This first appeal from order has been filed by the plaintiffs against
the order of Mr. P.L. Singla, Additional District Judge, dated 18th December, 1973 by
which the learned Judge has refused the application of the plaintiffs for grant of ad
interim injunction restraining the defendants from printing, publishing or selling, etc.
deceptively similar or colourable imitation of the plaintiffs Panchang (Almanac) in
dispute.
2. The facts of the case leading to the dispute are that the plaintiffs have been
printing and publishing the Panchang (Almanac) since 1894 A.D. year after year,
according to the Vikram Samvat up to now. The “Panchang bears the name of “Pt.
Shrivallabh Maniram Panchang” and has a distinctive colour style and title. It is
common case of the parties that this Panchang was being compiled by a reputed
astrologer by name Pandit Mani Ram Sharma, (who is the grandfather of Nand
Kishore, second defendant). The preface of the Panchang also supports the version
that Pandit Mani Ram Sharma was compiling the calculations and it was being printed
and published by the plaintiffs. This position lasted till 1905 A.D. when Pandit Mani
Ram Sharma is alleged to have died. (According to the defendants, although it is not
so stated by them on affidavits Pandit Mani Ram Sharma died in 1909). The case of
the plaintiffs is that the publishers and proprietors of the Panchang were the plaintiffs,
while the compilation work was being done by competent persons engaged by the
plaintiffs from time to time and after the death of Pandit Mani Ram Sharma this work
was being done by Pandit Hardev Joshi from 1906 to 1933, by Pandit Hari Parshad
Sharma, from 1934 to 1944 and by Pandit Ishwari Datt Sharma from 1945 to 1954.
Thereafter from 1955 to 1974, that is to say for the Samvats 2011 to 2030, the
plaintiffs claim that the work of compilation had been done by Nand Kishore, second
defendant herein. On the record, a photostat copy of the agreement dated 28th April,
1961 has been produced. It purports to have been executed by Nand Kishore,
defendant and is to the effect that calculations of the Panchang for the Samvats 2021
to 2030 had been absolutely assigned to the plaintiffs. The trouble has arisen
subsequently and it appears that the plaintiffs and the second defendant could not
finally agree on the terms for the subsequent years, as is apparent from the
correspondence on the file. Consequently, the second and the first defendants entered
into some agreement. It is significant that the said agreement on which the
defendants 1 and 2 rely, has neither been filed nor relied upon in the court, although it
is, if genuine, an extremely material document from which the defendants derive
support. As is apparent
Page: 253
from the photostat copy of a receipt, (alleged to have been signed by defendant No. 2
on 1st June, 1973) the second defendant has purported to assign his copy-right in the
Panchang for the Samvats 2031 and 2032 for a sum of Rs. 2,000/- per annum, out of
which he had received Rs. 2,000/- for the earlier Samvat and Rs. 500/- as advance for
the following Samvat. Thereafter, defendant No. 1 has published a, Panchang for the
Samvat 2031 (i.e. 1974-75 A.D.) prior to the institution of the suit and also the
Panchang for the Samvat 2032 (i.e. for 1975-76) during the pendency of the suit. On
the other hand, the plaintiffs have also brought out their Panchangs and found that
the Panchangs in dispute of the defendants are deceptively similar to their own.
Feeling aggrieved, the plaintiffs have instituted the suit on 22nd October, 1973 in the
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court below, which has given rise to this appeal.
3. The allegations made in the plaint are that the plaintiffs are the leading most
printers and publishers of the Almanc and on the title cover of the Panchang they print
religious signs and symbols of a particular pictorial device and on the back side of the
cover also they print and publish device of the planets and that their Panchang is
known as “Mani Ram Panchang, Manav Panchang and Shri Vallabh Mani Ram
Panchang”. The get up, layout, shape and design of the Panchang have, according to
the plaintiffs, acquired a wide reputation and goodwill by long user and their sales
have been to the tune of Rs. 50,000/- per year. They have contended that the
defendants by publishing the Panchang in dispute are passing off their goods, as the
goods of the plaintiffs and that the title printed by them is deceptively similar to the
plaintiffs and that the defendants be restrained from publishing or selling the same.
The suit has been contested by defendant No. 1 as well as by defendant No. 2.
4. During the trial of the suit, an application under Order 39 Rules 1 and 2 read
with Section 151 of the Code of Civil Procedure was filed by the plaintiffs for the grant
of an ad interim injunction, which was supported by an affidavit. The same had been
opposed by the defendants. Defendant No. 1 has contended that the plaintiffs did not
have any copyright in the Panchang and that he had himself acquired the copyright
from defendant No. 2, who is author as well as the owner of the copyright and that he
had already compiled, published and sold in the market all copies of the first edition of
the Panchang for the Samvat 2031 and that an injunction would cause irreparable
injury. He has also contended that the plaintiffs had come to the court very late. The
reply of defendant
Page: 254
No. 1 is supported by an affidavit. The application has also been contested by

defendant No. 2 and he has taken up the plea that the author of the Panchang was
Shri Mani Ram Sharma who was his grand father and that his copyright in the
Panchang had not been assigned to the plaintiffs, but the same has been inherited by
the defendant No. 2. It is significant that defendant No. 2 claims the inheritance of
copy-right from his grand father Mani Ram Sharma, while his own father Ram Lal
Sharma who would be the natural next heir of Pandit Mani Ram Sharma is still alive.
The parties have filed copies of various Panchangs and the plaintiffs have filed a
number of documents relating to the orders and supplies of the Panchang and the
correspondence they have had with the defendants. The defendants have filed a
photostate copy of a title of the Panchang of 1892 A.D. and a copy of the receipt given
by the second defendant in respect of remuneration received by him. He has also filed
a receipt for Rs. 2/-, which is said to have been sent to some Registrar. The learned
Additional District Judge by the impugned order has held that the plaintiffs did not
have a prima facie case, as they had claimed exclusive copy-right which they have
failed to establish and that the balance of convenience lay in favour of the defendants,
who had already published and sold some copies and, therefore, the learned Judge
refused the injunction, but directed the defendants to keep accounts of the sales of
the Panchang. Feeling aggrieved by this order, the plaintiffs have filed this appeal.
5. I have heard the counsel for the parties at considerable length. In my opinion,
the learned Additional District Judge has fallen into an error in not applying the correct
principles of law to the case. The learned Judge has failed to appreciate that the case
of the plaintiffs was not of infringement of a copy-right. The action that they had
instituted was for passing off the goods. “Mark” is defined by section 2(1)(j) of the
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Trade and Merchandise Marks Act, 1958 (hereinafter referred to as the Act), as a
device, brand, heading, label, ticket, name, signature, word, letter or numeral or any
combination thereof while “trade mark” is defined by clause (v) of the said section 2
(1). Section 27 of the Act prescribes that no person shall be entitled to institute any
proceeding to prevent or to recover damages for, the infringement of an unregistered
trade mark. Sub-section (2) of the said section provides that nothing in the Act shall
be deemed to affect rights of action against any person for passing off goods as the
goods of another person or the remedies in respect thereof. Section 105 confers
jurisdiction on the District Court to try suits for passing off. Clause (c) of the said
section provides for suits for passing off arising out of the use by the defendant of any
trade mark
Page: 255
which is identical with or deceptively similar to the plaintiff's trade mark, whether
registered or unregistered. Section 106 provides that the relief which a court may
grant in any suit for infringement or for passing off referred to in section 105 includes
an injunction and at the option of the plaintiff, either damages or an account of profits,
together with or without any order for the delivery-up of the infringing labels and
marks for destruction or erasure.
6. Kerly in Law of Trade Marks and Trade Names, 10th edition, in paragraph 16-02,
on page 362, has stated that it is an actionable wrong for the defendant to represent,
for trading purposes, that his goods are those or that his business is that of the
plaintiff and it makes no difference whether the representation is effected by direct
statements, or by using some of the badges by which the goods of the plaintiffs are
known to be his, or any badges colourably resembling these, in connection with goods
of the same kind, not being the goods of the plaintiff, in such a manner as to be
calculated to cause the goods to be taken by ordinary purchasers for the goods of the
plaintiff. Kerly has relied upon an observation in Frank Reddaway v. George Banham,
(1896) A.C. 199 (1), where Lord Halsbury L.C. observed at page 204 that the
principles of law may be very plainly stated, that no body has any right to represent
his goods as the goods of somebody else and how far the use of particular words,
signs, or pictures, does or does not come up to the proposition enunciated in each
particular case must always be a question of evidence. In the same decision Lord
Hersehell observed on page 209 that if the defendants were entitled to lead
purchasers to believe that they were getting the plaintiffs' manufacture when they
were not and thus to cheat the plaintiffs of some of their legitimate rights, it would be
regrettable to find that the law was powerless to enforce the most elementary
principles of commercial morality and that the principle which was applicable to that
class of cases had been laid down by Lord Kingsdown in Leather Cloth v. American
Leather Cloth Co. (11 H.L.C. 538) (2) thus “the fundamental rule is, that one man has
no right to put off his goods for sale as the goods of a rival trader and he cannot,
therefore, be allowed to use names, marks, letters, or other indicia, by which he is
selling the manufacture of another person”.
7. Copinger on Copyright, 11th Edition, in paragraph 230, on page 108, stated that
the titles to books, newspapers, and periodicals, though often coming before the
courts on the question of copyright therein, are not generally in themselves the proper
subjects of this
Page: 256
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right, that it is difficult to say that there is any original literacy work in the formation
of one or two words into a title and that the words into a little and that the words or
phrase chosen may be original in their application to the subject-matter of the work to
which they are applied. Further (in paras 233, 235 on pages 110 and 111) the learned
author proceeds to say that, titles of books are, in certain circumstances, protected
from imitation by means of a ‘passing off’ action. The action for ‘passing off’ lies where
the defendent has represented to the public that his goods or business are the goods
or business of the plaintiff. A defendant may make himself liable to this action by
publishing a work under the same title as the plaintiffs, or by publishing a work where
title and ‘get up’ so resemble that of the plaintiffs to deceive the public into the belief
that it is the plaintiff's work. In all these cases the plaintiff has to prove that his
publication has been in the market long enough to acquire public reputation and
secondly title used by the defendant is calculated to deceive the public. A reputation
or goodwill can be built up by substantial sales within a short period of time. Mere
intention to deceive is not sufficient, there must be grounds for apprehending actual
deception. But it is not necessary to establish that any one, as a result of the passing
off, is induced to deal with the defendant in the mistaken view that he was dealing
with the plaintiff. Copinger has on page 133 given a large number of instances, where
injunctions in respect of title were granted or refused, e.g. they were granted in “The
Wonderful Magazine”, “The wonderful Magazine, New Series Improved”, “Minne”,
“Minie Dale”, “London Journal”, “Daily London Journal”, etc. They were refused in the
cases of “Magazine of Fiction”, “Monthly Magazine of Fiction”, “Post Office Directory of
the West Riding of Yorkshire”, “The Post Office Bradford Directory”, etc. etc.
8. A reference may also be made to a decision of the Chancery Division in Metzler v.

Wood, (1878) 8 Chancery Division 606 (3). In this case, the plaintiffs were the
publishers of a work instituted “Hemy's Royal Modern Tutor for the Pianoforte”, a
revised edition of which had been brought out in 1867, and which was well known and
had an extensive sale, but was not so registered as to secure copyright. In 1874 the
defendant employed Henry to revise an old work, intitled “Jousse's Royal Standard
Pianoforte Tutor”, which had formerly been in high repute, but had entirely fallen into
disuse. This revised work the defendant brought out under the title “Hemy's New and
Revised Edition of Jousse' Royal Standard Pianoforte Tutor”, the word “Hemy's”, both
on the outside of the book and on the title-page, being printed in much larger and
more conspicuous type
Page: 257
than any other of the words. The court of Appeal held that the plaintiff was entitled to
an injunction restraining the defendant from offering his work for sale with its present
form, title-page, and cover, or any other form, title-page, or cover, calculated to
deceive persons into the belief that it was the plaintiff's work. In John Haig &
Company Limited v. Forth Blending Company Ltd. and W.R. Paterson Ltd., 1970
Reports of Patent, Design and Trade Mark cases 269 (4), the court found that for many
years prior to 1952 the petitioners had sold a brand of whisky in distinctively shaped
bottles, technically called “Three pinch decanters”, but which had come to be known
popularly as “Dimple” bottles. This brand was commonly asked for in public houses as
“Dimple” whisky. In 1952 the respondent commenced selling whisky not distilled by
the petitioners in bottles of the same shape though the labels were wholly different
from those used by the petitioner. The court held that in adopting these bottles the
respondents hoped to obtain some advantage from the connection of “Dimple” bottles
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with the petitioner's whisky. In these circumstances, the court granted an injunction
restraining the respondent from selling the whisky not blended by the petitioners in
“Dimple” bottles for consumption in the United Kingdom.
9. The Supreme Court of India in Rustom and Hornby Ltd. v. Zamindara

Engineering Co., (1969) 2 SCC 727 : AIR 1970 Supreme Court 1649 (5), elucidated
the difference between an action for infringement of trade mark and for parsing off. It
observed that action for infringement is a statutory right and it is dependent upon the
validity of registration and other statutory conditions. On the other hand, the gist of
passing off action is that A is not entitled to represent his goods as the goods of B. It
is enough that the get up of B's goods has become distinctive of them and there is a
probability of confusion between them and the goods of A. It is not necessary to prove
actual deception, or actual damage, nor to prove the knowledge or intention to
deceive. The court laid down that issue in an action for passing off is “whether the
defendant is selling the goods so marked as to be designed or calculated to lead the
purchaser to believe that they are the plaintiffs goods'. On the other hand, the issue in
infringement action is “whether the defendant is using a mark which is the same or
which is a colourable imitation of the plaintiffs registered mark.”
10. The distinction between the two actions was vividly brought out by the
Supreme Court in an earlier decision Kaviraj Pandit Durga Dutt Sharma v. Navaratna
Pharmaceutical Laboratories, AIR 1965 S.C. 980 (6) thus:
“If the essential features of the trade mark of the plaintiff have been adopted by
the defendant, the fact that the get
Page: 258
up, packing and other writing or marks on the goods or on the packets in which he
offers his goods for sale show marked differences, or indicate clearly a trade origin
different from that of the registered proprietor of the mark would be immaterial;
whereas in the case of passing off, the defendant may escape liability if he can show
that the added matter is sufficient to distinguish his goods from those of the plaintiff.”
11. In my opinion, the correct legal position is this: Action for infringement of a
trade mark or copyright is a statutory remedy and in pursuing it, the plaintiff must
prove his title and exclusive right to use the trade mark (or work) in question and
further establish that the defendant has infringed the same by identical or deceptively
similar or colourable imitation of it. In such a case, if otherwise established, it is no
valid defence on the part of the defendant that it has been sufficiently indicated on the
infringing goods that they are not of the plaintiff, but of the defendant. On the other
hand, action for passing off is a common law remedy and its gist is deceit and not
infringement of a right to exclusive user. In such an action, the plaintiff may, if so
advised prove his title to the exclusive use of the trade mark (or copyright) but he
need not do so. What is, however, essential for the plaintiff to establish are: (a)
distinctive features; (2) substantial user and (3) wide reputation. The law casts an
obligation on the defendant not to pass off his own goods (or work) as if they had
been produced by the plaintiff and the court will enforce this obligation. In such a
case, the defendant can escape the liability by showing that his goods (or work),
though similar, distinctly indicate that they do not originate from the plaintiff, but
have been produced by the defendant. Element of deceit may exist in both kinds of
action, but it is of the essence of the passing off action. Actual deception is not
required to be proved, but reasonable ground for apprehending deception must exist.
12. In the instant case, the plaintiff's user of the name and title spread over a
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period of 80 years past is fully established. They have stated that their sales of the
Panchang have been to the tune of Rs. 50,000 a year, which shows that a considerably
large number of copies have been sold. With regard to the distinctiveness of the title,
it would be clear that plaintiffs almanac contains pictorial devices in a particular style
of the Sun god, followed by Saraswati, Ganesh, Vishnu, Shankar, Garud, Billav to
whom salutations have been made at the top, besides nine other pictures have been
depicted in a particular style,
Page: 259
while the name of Shri Mani Ram Sharma is mentioned in a block. It is also interesting
to note that reference in a block in the centre is made to the Raja of Sikar under
whose benediction the Panchang has been published. Below it is printed the name of
plaintiff's press as the printer and publisher possessing the entire rights of
reproduction. At the outside of the second page of the title are given the twelve rashis
or planets in a device producing particular pictorial effects and inside of the cover
contains a photograph of late Pandit Mani Ram Sharma. In the middle of the same,
page, there is a reference to Raja of Sikar and the name of the press.
13. In the Panchang produced by the defendants, which is marked ‘B’ before me,
the first page of the title is exactly similar excepting the necessary change in the
Samvat and the year. In the place of the name of the printer and publisher
(Venkateshwara Press), it may be noticed that the name of the defendants has not
been mentioned, but what has been mentioned is that all rights of publication have
been reserved and the genuine Panchang must be purchased after verifying the photo
of Shri Vallabh Mani Ram. At the outside of the second title page in a block, after
referring to Kalyan Singhji Bahadur Raja Sikar and mentioning the name of Vallabh
Mani Ram Sharma, the name of Nand Kishore Shastri has been added with the
expression that sole agent is Garg & Co., Khari Baoli, Delhi. In the inside of the second
title page, while the photograph of Mani Ram and the calculations of the day and night
have been maintained, the matter at the bottom has been changed. The colour
scheme and the arrangement of the title remain the same.
14. It is, therefore, obvious that the Panchang published by the defendants is
almost identical and certainly deceptively similar to the plaintiff's Panchang and is
clearly intended to convey the impression that it is the same Panchang which had
been published by the plaintiffs. To further clarify the matter, there is an
advertisement under the heading “Good News” in a hand bill printed by Garg & Co.,
Khari Baoli, defendant No. 1, which freely translated reads “All book-sellers, brethren,
were being informed with pleasure that Vallabh Mani Ram Panchang (which had
previously been published from Bombay) would thereafter be published by us and that
Vallabh Mani Ram Panchang for Samvat 2031 has been printed and please send us
valuable orders for the same. Its price is given as Rs. 60 per 100 or Rs. 600 per
thousand”. This shows that the defendants were clearly intending to lead the buyers
and the customers into a belief that the Panchang published by the defendants was
the same that had been published by the plaintiffs.
Page: 260
15. It is further interesting to notice that in the inside pages of the Panchang
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containing the subject matter, it is written in the Panchang of the plaintiffs that the
material had been provided by Shri Hardev Sharma. Similarly, in another page, it had
been written that calculations had been prepared by Jyotishi Hardev Sharma. In the
intervening page the local time of Bombay is given under the footnote that “in Bombay
when auspicious hour is to be calculated, the timings given of Ramgarh are not helpful
and so the timings of Bombay have been given.” All these have exactly been repeated
in the defendants' Panchang. It is not the case of the defendants that they have
acquired by inheritance or otherwise any rights from Pandit Hardev Sharma. They have
laid their claim only through Nand Kishore. But in the Panchang, they have
unauthorisedly also copied the results of labour of Hardev Sharma and the timings of
Bombay have been utilised while they would be expected to give the timings of the
place where their Panchang had been printed and was likely to be sold. Under the
circumstances, the counsel for the plaintiff-appellants rightly submits that there is not
the slightest doubt that he defendants have published their Panchangs to deceive the
public into belief that they are purchasing the Panchang which had been published by
the plaintiffs. These would prima facie satisfy the ingredients of action for passing off
and would show that the plaintiffs have a prima facie case and the learned Additional
District Judge has erred in holding to the contrary.
16. The defendants have strongly relied upon the fact that the Panchang was being
prepared for the plaintiffs by the grandfather of defendant No. 2 and so on the expiry
of any arrangement with the grandfather, the right would devolve on defendant No. 2.
There is a fallacy in the submission. Sections 17 and 18 of the Copyright Act, 1957
show where the copyright vests. If a work is done by an author for a consideration for
a publisher, the copyright in it would normally vest in the publisher subject to any
contract to the contrary, as is provided by section 17 of the said Act. It can be
legitimately said that this section has been inserted in the Act of 1957, but the rule of
law has been the same even prior to this statutory provision. Secondly, as provided by
section 18, the copyright could be assigned, and if it is so done, it would be vested in
the purchaser. This would show that if Pandit Mani Ram had any copyright, it must
have been vesting in the publishers. But, it is not at all necessary to express any
opinion on this question for the time being. The reason is that the copyright, if any,
which vested in Pandit Mani Ram would really relate to the calculations compiled
Page: 261
in the Panchang made from year to year, which were likely to be different every year.
Pandit Mani Ram has never claimed any copyright in the get up, style, design and
title, which would obviously be vesting in the publisher and nothing has been brought
on record to show that Pandit Mani Ram claimed any copyright in the design or get up
or retained the same with him which could pass by inheritance. Moreover, what
clinches the issue finally is the provision of section 22 of the Copyright Act, which
reads as follows:
“22. Term of copyright in published literary, dramatic, musical and artistic works.
— Except as otherwise hereinafter provided, copyright shall subsist in any literary,
dramatic, musical or artistic work (other than a photograph) published within the
lifetime of the author until fifty years from the beginning of the calendar year next
following the year in which the author dies.”
Pandit Mani Ram died in 1905 as contended by the plaintiffs (or in 1909 as contended
by the defendants), at all events, he died more than 50 years ago. Considered from
any point of view, after 1960 copyright in the work or Panchang of Mani Ram, if any,
could not subsist in the hands of his legal heirs or in the hands of defendant No. 2. On
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this proposition of law, the counsel for both the parties are in agreement. Furthermore,
Pandit Mani Ram had a son, who is the father of defendant No. 2 and if any copyright,
were still subsisting and had to pass by inheritance, it would be inherited by the
second defendant's father and not by him. At all events, considered from any point of
view, defendant No. 2 did not possess any copyright in the work of Pandit Mani Ram in
the year 1973 or 1974, when he is purported to have assigned it to defendant No. 1,
which assignment must be held to be void and ineffective.
17. Lastly, the counsel for the defendant submits that the plaintiffs have
themselves accepted defendant No. 2 as the author of the copyright vide his
agreement of 1961 copy of which has been placed on record. The submission of the
counsel does not have any force. The said assignment of copyright is clearly confined
to Ganit (or calculations) made for a period of 10 years from Samvat 2021 to 2030.
There is no doubt that if any calculations had been made by Nand Kishore, second
defendant, he had a right to assign them to the plaintiff or to the defendants after the
expiry of the said contract. But this is not the question arising before me. The question
in the appeal relates to copyright purporting to have remained in Pandit Mani Ram,
and neither the plaintiffs nor the defendants can legally
Page: 262
claim any copyright in Pandit Mani Ram's work fifty years after his death.
18. It is significant to notice and I wish to emphasise that the parties before me are
not feeling aggrieved with regard to publication of the calculations that defendant No.
2 has made, which he had made for the benefit of defendant No. 1 and which
constitute the subject matter of the Panchang. The defendants are free to publish
them if otherwise legally entitled. The plaintiffs have not raised a dispute about them.
The grievance of the plaintiffs is confined to the title, get up and the arrangement and
style, and their action is for passing off. I am, therefore, of the opinion that the
plaintiffs have succeeded in establishing a prima facie case.
19. The considerations which must weigh with the court in granting or refusing the
injunction are well established. I find that the injury to the plaintiffs would be almost
irreparable as their sales are alleged to be over Rs. 50,000 a year and they have been
in the trade for a period of more than 80 years and have obviously acquired a wide
reputation in the title and get up and once it is injured or destroyed, no amount of
damages can compensate them. On the other hand, the defendants have recently
started the publication only since 1973, for the Samvat 2031 and thereafter during the
pendency of the suit for the year 1975-76. They would, therefore, be not liable to
suffer any great injury. Moreover, the defendant No. 1 has been publishing other
Panchangs and his business may not suffer. Again apart from the get up, the most
valuable material of the Almanac, consists of calculations and predictions published in
the body of the Panchang and the defendants are not being restrained from printing,
publishing or using the said material. It establishes that the balance of convenience
lies in favour of the granting of injunction against the defendants. The order of the
court below must, therefore, be reversed.
20. Defendant No. 1 has stated that he has paid a substantial sum of money to
defendant No. 2 in order to acquire the rights in the Panchang. Mr. Garg explains that
although he has not filed any agreement, he has filed copies of the receipts, which
show that defendant No. 1 has paid to defendant No. 2 a sum of Rs. 2500 out of which
Rs. 2000 are consideration for the Samvat 2031 and Rs. 500 as consideration for the
Samvat 2032. This shows that defendant No. 1 has only paid a sum of Rs. 2000 to
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defendant No. 2, which includes the labour and skill of making the calculations and the
predictions in the Panchang as a whole and only a part of
Page: 263
the consideration was paid (if the contention of the defendants be true) for the title of
Panchang. This further shows that the injury by injunction if caused to the defendant
is not likely to be of any appreciable value. Defendant No. 1 claims to have been
printing, publishing and selling other Panchangs as well. On the other hand, the
plaintiffs are not publishing any other Panchangs and so failure to grant the injunction
will cause such a great injury to the plaintiffs as cannot be compensated by damages
and if their reputation is once spoilt or allowed to be destroyed, it will be difficult to
resurrect the same. The plaintiffs have come to court at the earliest.
21. It is, therefore, a fit case where ad interim injunction must be granted, but
assurance may be made for payment of compensation to the defendants in the event
the suit of the plaintiffs fails. The loss that the defendants may suffer is only the
amount alleged to have been paid by defendant No. 1 to defendant No. 2 for
acquisition of the rights in the title and compilation, which comes to Rs. 2000 per
annum for both. The substantial portion of the Panchang is really the compilation. In
these circumstances, I am of the opinion, that it would just and equitable if the
plaintiffs are directed to deposit a sum of Rs. 150 per month of Rs. 1800 per annum
on account of compensation for the period from the date of this order till the decision
of the suit, which may be paid to defendant No. 1 in case the suit of the plaintiffs fails.
Mr. Anand, counsel for the plaintiffs undertakes to deposit the said amount in the
court below within one month. The amount will be deposited by 17th April, 1975.
Should the trial last longer, the plaintiffs would further deposit the amount at the
same rate till the conclusion of the trial. This would be for the period from today. But
with regard to the intervening period, i.e. between today and the date of the
institution of the suit, no order is made herein.
22. Under the circumstances, the appeal is allowed, the order of the court below is
reversed and the application of the plaintiffs under Order 39 Rules 1 and 2 read with
section 151 of the Code of Civil Procedure, is allowed and the defendants 1 and 2 and
their servants, agents and representatives are restrained from printing, publishing,
selling or offering for sale directly or indirectly dealing with Panchang (Almanac)
deceptively similar or colourable imitation of the plaintiffs' Panchang by adoption of
identical get up, layout, design and colour scheme, etc. or from using the name or
expression MANAV PANCHANG, MANI RAM (PANCHANG) or SHRI VALLABH MANI RAM
(PANCHANG). Respondents Nos. 1 and 2 will pay costs of
Page: 264
this appeal to the appellants. The appeal stands disposed of accordingly.
23. It may be mentioned that the observations made in this order are tentative and
will not prejudice the trial of the suit on its merits according to law.
24. The parties appearing before me through their counsel are directed to appear
before the court below on 3rd April, 1975 for further proceedings.
G.G.
Appeal allowed.
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SCC Online Web Edition, © 2023 EBC Publishing Pvt. Ltd.

Page 1 Thursday, June 15, 2023

In the High Court of Delhi

Khemraj Shrikrishandas … Appellant;

The Judgment of the Court was delivered by

court below, which has given rise to this appeal.

No. 1 is supported by an affidavit. The application has also been contested by

8. A reference may also be made to a decision of the Chancery Division in Metzler v.

9. The Supreme Court of India in Rustom and Hornby Ltd. v. Zamindara

this appeal to the appellants. The appeal stands disposed of accordingly.

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