# Defendant v. Sunil Kumar and others Plaintiffs

- **Citation:** (2006) 3 ILRA 1103
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2006-06-30
- **Bench:** Tarun Agarwala
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/defendant-v-sunil-kumar-and-others-plaintiffs-40742
- **Pages:** 7

## Headnote

Sri B.D. Mandhyan
Sri M. Saxena
Sri R.B. Singhal
Sri Murlidhar
Sri Ajit Kumar
Sri Anoop Trivedi

Code of Civil Procedure-Order 39 rule I3-Grant of Interim Injunction-without
issuing Notices to other side-on the last
day of working-without considering the
mandatory reequirement before passing
the
interim
order-held-can
not
sustained-operation of Injunction order
stayed-Trail Court directed to decide the
interim injunction as fresh-after hearing
to both the parties within six weeks.

Held: Para 22, 23 and 25

In view of the aforesaid, I find that the
Court below had committed a manifest
error in granting an exparte injunction in
favour of the plaintiff. In the opinion of
the Court, the Court below should not
have issued an exparte injunction, and
that to, on the last working date of the
Court. In my view, the application for
injunction
ought
to
have
been
considered by the Court after notices
were issued to the opposite parties.
Consequently, at this moment, I do not
find that the basic ingredients for the
grant of injunction existed. Further the
mandatory provisions of Order 39 Rule 3
C.P.C. was not complied by the Court
below.
Consequently,
the
injunction
cannot continue any further.

In view of the aforesaid, the effect and
operation of the injunction order dated
29.5.2006
passed
by
the
Incharge
District Judge, Meerut in Original Suit
No.1 of 2006 shall remain stayed till
further orders of the Court.

Since 6.7.2006 has been fixed for the
appearance
of
the
defendantsappellants. I direct the defendantsappellants to appear before the Court
below on the said date and file their
reply/ objections. The Court below shall
consider
the
injunction
application
afresh and shall pass such and further
orders after hearing the parties within
six
weeks
from
the
date
of
the
production of a certified copy of this
order.
AIR 1970 Alld.-376

## Text

3 All] Sudarshan Yadav V. The Dy. Director of Consolidation, Ballia and others
1103
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 30.06.2006

BEFORE
THE HON'BLE TARUN AGARWALA, J.

First Appeal From Order No. [620] of
2006

M/s Ashok Prakashan and another

 ...Defendant-Appellants
Versus
Sunil Kumar and others ...Plaintiffs-
Opposite Parties

Counsel for the Appellants:
Sri M.K. Gupta

Counsel for the Opposite Parties:
Sri B.D. Mandhyan
Sri M. Saxena
Sri R.B. Singhal
Sri Murlidhar
Sri Ajit Kumar
Sri Anoop Trivedi

Code of Civil Procedure-Order 39 rule I3-Grant of Interim Injunction-without
issuing Notices to other side-on the last
day of working-without considering the
mandatory reequirement before passing
the
interim
order-held-can
not
sustained-operation of Injunction order
stayed-Trail Court directed to decide the
interim injunction as fresh-after hearing
to both the parties within six weeks.

Held: Para 22, 23 and 25

In view of the aforesaid, I find that the
Court below had committed a manifest
error in granting an exparte injunction in
favour of the plaintiff. In the opinion of
the Court, the Court below should not
have issued an exparte injunction, and
that to, on the last working date of the
Court. In my view, the application for
injunction
ought
to
have
been
considered by the Court after notices
were issued to the opposite parties.
Consequently, at this moment, I do not
find that the basic ingredients for the
grant of injunction existed. Further the
mandatory provisions of Order 39 Rule 3
C.P.C. was not complied by the Court
below.
Consequently,
the
injunction
cannot continue any further.

In view of the aforesaid, the effect and
operation of the injunction order dated
29.5.2006
passed
by
the
Incharge
District Judge, Meerut in Original Suit
No.1 of 2006 shall remain stayed till
further orders of the Court.

Since 6.7.2006 has been fixed for the
appearance
of
the
defendantsappellants. I direct the defendantsappellants to appear before the Court
below on the said date and file their
reply/ objections. The Court below shall
consider
the
injunction
application
afresh and shall pass such and further
orders after hearing the parties within
six
weeks
from
the
date
of
the
production of a certified copy of this
order.
AIR 1970 Alld.-376

(Delivered by Hon'ble Tarun Agarwala, J.)

1. This First Appeal From Order
under Order 43 Rule 1(r) of the Civil
Procedure Code is against an exparte
injunction dated 29.5.2006 passed by the
Incharge
District
Judge,
Meerut
in
Original Suit No.1 of 2006 restraining the
defendant-appellants
from
printing,
publishing and selling the books, detailed
at the foot of plaint and from using the
name G Ram or J Ram.

2. The brief facts, as enumerated in
the plaint is, that the plaintiffs' father G
Ram and defendant Nos. 1 and 2 are real
brothers. The plaintiff's father had written
several books which were published by a
firm known as Ashok Prakashan, in which
defendant Nos. 1 and 2 were the partners.
1104 INDIAN LAW REPORTS ALLAHABAD SERIES [2006
It is alleged that the appellant's father was
also a partner in the said firm. However,
there was no deed in writing but the
plaintiff's mother Sheela Devi was a
partner in the firm and that an agreement
to this effect was executed in writing. The
plaintiff contended that his father died on
24.2.2004 and that the plaintiff inherited
the Copyright of the books written by his
father. It was alleged that after the death
of his father, the plaintiffs were selling the
books under the name of J Ram and that
no royalty was being paid by the
defendants to the plaintiff on the books
sold
by
the
defendants'
firm.
Consequently, the plaintiffs prayed for a
permanent
injunction
restraining
the
defendants from printing, publishing or
selling the books written by the plaintiffs'
father G Ram and also prayed for the
defendants be further restrained from
using the name G Ram as J Ram.

3. The said suit was instituted on the
last working day of the Civil Court,
Meerut on 29.5.2006 before the Incharge
District Judge and on the same date, an
exparte injunction was granted restraining
the defendants from printing, publishing
and selling the books, detailed at the foot
of the plaint and from using the name G
Ram or J Ram. The Court below while
granting the injunction held:

"The purpose of the suit shall be
frustrated, if interim injunction is not
granted in favour of the plaintiff because
the defendants have been continuously
infringing the copyright of the plaintiff."

4. Aggrieved, the defendants-
appellants have filed the present First
Appeal From Order before this Court and
have prayed that the injunction order
granted by the Court below should be set
aside. Before this Court, the defendants-
appellants submitted that the present suit
is a second suit arising out of the same
cause of action, and therefore, was not
maintainable and was also barred by
Section 10 of the Code of Civil
Procedure. Further, the plaintiff had
concealed material facts and had not come
to the Court with clean hands. The
plaintiff along with others had earlier filed
Original Suit No.362 of 2006 before the
Civil
Judge
(Senior
Division)
at
Bulandshahar in April 2006 praying for
the rendition of the accounts and for
restraining the defendant-appellants from
publishing or selling the books written by
G. Ram without paying royalty to the
plaintiff. It was also submitted that an
injunction application was moved on
25.5.2006, in which the Civil Judge
issued notices and no injunction was
granted by the said Court. It was also
submitted that another original suit
No.174 of 2006 was filed through the
brother-in-law of the plaintiff before the
Civil Judge ( Junior Division), Meerut on
22.5.2006, in which similar relief was
prayed, namely, that the defendantsappellants be restrained from publishing
the books written by G Ram. The
defendants- appellants submitted that the
Civil Judge (Junior Division) Meerut
granted an exparte injunction restraining
the
defendants-
appellants
from
publishing or selling the books written by
G Ram. Against this injunction, the
defendants-appellants preferred an appeal
before the District Judge and by an order
dated 31.5.2006, the injunction granted by
the Civil Judge was stayed by the District
Judge and the parties were directed to
maintain status quo.

5. Apart from the aforesaid, it was
further
alleged
by
the
defendant-
3 All] M/s Ashok Prakashan and another V. Sunil Kumar and others
1105
appellants that another suit No.560 of
2006, Dinesh Tyagi vs. Ashok Prakashan
was also instituted before the Civil Judge
(Junior Division), Bulandshahr, in which
similar relief for injunction was prayed
for and that the Civil Judge by an order
dated 31.5.2006 refused to grant an
injunction. Consequently, the defendantappellants submitted that four suits of a
similar nature, in which more or less
identical reliefs were prayed and an effort
was made by the plaintiff to obtain an
injunction order against the appellants.
The
defendant-appellants
submitted
before this Hon'ble Court that their firm
Ashok Prakashan has the exclusive
copyrights of the title of the book, which
had been duly registered under the
Copyright Act and that the books written
by G Ram has also been registered under
the Copyright Act in the name of the firm
since the year 1999-2000. It was also
submitted that the author G. Ram had
given a no objection certificate and had
assigned his Copyright in favour of the
appellants upon receiving a lump sum
payment towards remuneration.

6. The defendant-appellants further
submitted that an agreement between the
appellants and G Ram was also executed
wherein
G
Ram
acknowledged
the
appellant as the owner of the Copyright.
The defendant-appellants have annexed
the certified copy of the plaint filed by the
plaintiffs in various Courts and have also
annexed the certificates issued under the
Copyright Act indicating the registration
of the copyright in favour of the firm as
well as the assignment deed executed by
the author G Ram. It was also alleged that
since the year 2001, the books were being
written by J Ram as per the new syllabus
which was in the knowledge of G Ram
and submitted that in view of the
aforesaid documents, the plaintiff had no
prima facie case nor the balance of
convenience was in his favour . Further,
the plaintiff would not have suffered any
irreparable injury, if the injunction had
not been granted. On the other hand, the
defendants-appellants
are
suffering
irreparable injury by the grant of the
injunction which cannot be compensated
in terms of money.

7. Heard Sri M. K. Gupta, the
learned counsel for the defendantsappellants and Sri Murlidhar, the learned
Senior Counsel along with Sri Ajit
Kumar, and Anoop Trivedi, the learned
counsel for the plaintiffs-opposite parties.

8. Sri M.K. Gupta, the learned
counsel for the appellants urged that the
suit filed by the plaintiffs was not
maintainable, being a second suit filed on
the same cause of action and was also
barred under Section 10 of the Civil
Procedure Code. The filing of the earlier
suit was concealed by the plaintiff in the
present suit and such concealment of a
material fact disallowed the plaintiff for
the grant of an injunction as the plaintiff
had not come to the Court with clean
hands. It was also urged that the suit
ought to have been instituted in the Court
of Civil Judge and could not be instituted
before the District Judge. The appellants
are the owners of the Copyright and that
an assignment deed is also in their favour.
There was no urgency in the matter and
the Court below committed an illegality in
granting an exparte injunction. The
learned counsel further submitted that
there is an urgency in the matter inasmuch
as the academic session starts from
1.7.2006 and the books are normally sold
in the market in the month of June 2006
1106 INDIAN LAW REPORTS ALLAHABAD SERIES [2006
and that is why the appeal is required to
be heard during the summer vacation.

9. On the other hand, Sri Murlidhar,
the learned Senior Counsel for the
respondents submitted that there is no
urgency in the matter for the appeal to be
taken up for consideration during the
summer vacation. The appellant could
have filed an application under Order 39
Rule 4 of the Code of Civil Procedure
readwith Rule 13 of the General Rules
(Civil) before the District Judge and that
urgent matters could be entertained by the
Civil Court, where the defendant could
apply for the vacation of the exparte
injunction. It was also submitted that the
District Judge had the jurisdiction to
entertain the suit, being the Principal
Court and that the suit was not barred
under Section 10 of the Code of Civil
Procedure. Sri Ajit Kumar, Advocate also
appearing for plaintiffs-opposite parties,
submitted that the appeal is matter of
record and that Annexure Nos. 2 to 23
annexed to the stay application filed
before this Court are such documents
which were not part of the record of the
Court below, and submitted that the such
documents could not be considered by the
Court unless these documents were
admitted in evidence under Order 41 Rule
27 of the Civil Procedure Code. In
support of his submission, the learned
counsel relied upon a full bench decision
of this Court in the matter of Zila
Parishad
Budaun
and
others
vs.
Brahma Rishi Sharma, AIR 1970, All.
376. It was also submitted that the
defendant-appellant
is a professional
litigant and that more than 200 cases are
pending in the Civil Courts. The plaintiffopposite party also denied that the
defendants were the owners of the
copyright or that the author had assigned
his copyright in favour of the defendants.
Since 6.7.2006 has been fixed by the
Court below, there was no urgency in the
matter and this Court should not interfere
in the matter and should delegate the
defendants-appellants to appear before the
Court below on the date fixed.

10. In rejoinder, Sri Gupta submitted
that the provision of Order 41 Rule 27 is
in the realm of a procedural law and
procedural law is a handmaid of justice
and should not be considered in a manner
which could lead the Court helpless in
doing substantial justice between the
parties.
Further,
in
any
case,
the
admission of the plaintiff before this
Court can always be considered without
calling for additional evidence. Apart
from this, the appellants have also filed
certified copies of various documents
which could be looked into by the Court
in view of the Sections 65 and 74 of the
Evidence Act and Section 48 of the
Copyright Act.

11. In the light of the aforesaid
submissions, it is clear that two brothers,
namely, the defendants, were in the
publishing business and the third brother,
namely, G Ram was the author. G Ram
was writing the books and the other two
brothers were publishing and selling the
books. It was more or less a family
business which continued for more than
two decades. The author died and the
plaintiff is unable to enjoy the fruits left
by his late father. Consequently, a
litigation has now started between the son
of the author and his uncles.

12. The bone of contention of the
plaintiff is, that upon the death of his
father, he inherited the Copyright of the
books written by his father. On the other
3 All] M/s Ashok Prakashan and another V. Sunil Kumar and others
1107
hand, the defendant-appellants' contention
is, that the Copyright was assigned in
favour of the firm during the life time of
the author and that the copyright was duly
registered under the Copyright Act. The
question to be considered is, who owns
the copyright ? Whether the author
assigned the copyright in favour of the
firm or whether the plaintiff inherited the
copyright?
These
questions
would
eventually be decided by the Court below
after evidence is led by the parties. It is
not necessary for this Court to consider
these matters at this stage inasmuch as the
injunction application could be decided
otherwise.

13. One thing which is glaring is
that the books written by G Ram was
being published by the firm of the
defendants for the last several years, and
that royalty was being paid. This is
admitted by the plaintiff in his plaint. As
per the plaint, the controversy has arisen
only after the authors death, when royalty
was not been paid by the defendants and
that the books were been sold as J Ram.
The allegation in the plaint is, that the
plaintiff inherited the copyright upon his
father's death and that the royalty was not
being paid to him.

14. In view of the aforesaid, can a
temporary injunction be granted by the
Court below ? Before any order is to be
passed, the Court must be satisfied, that a
strong prima facie case is made out by the
plaintiff
and
that
the
balance
of
convenience was in favour of the plaintiff
and that refusal to grant an injunction
would cause an irreparable loss and injury
to the plaintiff. It is settled law that all the
three ingredients, as stated aforesaid,
should be present before the Court could
grant an injunction. The burden of proof
that all the three ingredients are existing is
upon the plaintiff . Merely because the
plaintiff has proved that he has a prima
facie case by itself would not entitle him
to get an injunction as a matter of right,
especially if the balance of convenience
does not justify the granting of the
injunction.

15. The Supreme Court in a large
number of cases has held that a party is
not entitled to get an order of injunction
as a matter of right. The grant of an
injunction is within the discretion of the
Court, to be exercised with caution, and
that the injunction should be exercised in
favour of the plaintiff only if it is proved
to the satisfaction of the Court that unless
the defendant was restrained by an order
of injunction, an irreparable loss or
damage would be caused to the plaintiff
during the pendency of the suit.

16. In the present case, the only
ground alleged in the plaint is, that the
plaintiff is the son of the author and had
inherited the copyright upon his father's
death. Nothing has been stated about
irreparable
injury
or
balance
of
convenience. In fact upon a perusal of the
plaint and the application for grant of
injunction, I find that none of these two
conditions exists.

17. The defendants are publishing
the books and selling them for the last
several years . The author died in the year
2004, nothing has been alleged by the
plaintiff that the defendants were not
selling the books in the year 2004 or
2005. In fact the defendants have alleged
that the plaintiff conspired by circulating
a forged letter of the Chief Secretary to
the Government of U.P. as well as of the
Chief Minister, indicating therein that the
1108 INDIAN LAW REPORTS ALLAHABAD SERIES [2006
books published by the defendantsappellants had been banned by the State
Government This fact has not been denied
and it leads to a irresistible conclusion
that the defendants had published these
books in the year 2004 and 2005 and were
also selling them. Therefore, in the
opinion of the Court, no irreparable injury
was being caused to the plaintiff since the
defendants were selling these books prior
to the death of the author and even after
the death of the author in the year 2004.

18. In the opinion of the Court,
irreparable injury would be caused to the
defendants-appellants
if
they
are
restrained from publishing or selling the
books in question. On the other hand, the
plaintiff will not suffer any loss and, in
the event, the plaintiff succeeds in his
suit, he could be compensated by way of
damages. Even otherwise, the plaintiff has
filed for a suit for the rendition of account
where the matter with regard to the sale of
the books, etc., would be accounted for
and appropriate compensation/ damages
along with royalty, etc. would be
considered in the event the plaintiff's suit
is decreed. Therefore, the balance of
convenience does not lie in favour of the
plaintiff.

19. There is another aspect of the
matter, Order 39 Rule 3 of Code of Civil
Procedure provides that where it is
proposed to grant an injunction without
giving notice of the application to the
opposite party, the Court shall record the
reasons for its opinion that the object of
granting the injunction would be defeated
by the delay.

20. The power to grant an injunction
is an extra ordinary power vested in the
Court which is to be exercised after taking
into consideration all the facts and
circumstances of the case. The Courts are
required to be very cautious while
exercising such power. It is mandatory for
the court to record the reasons, where it
appears that object of granting an
injunction would be a defeated by the
delay.

21. In the present case, from a
perusal of the injunction order, I find that
no reasons has been recorded indicating
that the object of granting an injunction
would be defeated by the delay if notices
are issued to the opposite parties. The
only reason recorded is that the suit would
be frustrated, if an interim injunction is
not granted since the defendants have
been
continuously
infringing
the
copyright. This finding, arrived at, by the
trial Court is, not based on any cogent
reason. The plaint does not indicate that
the defendant had been continuously
infringing the copyright. In fact nothing
has been stated as to when and at what
point of time the defendants-appellants
had started infringing the copyright of the
author G Ram.

22. In view of the aforesaid, I find
that the Court below had committed a
manifest error in granting an exparte
injunction in favour of the plaintiff. In the
opinion of the Court, the Court below
should not have issued an exparte
injunction, and that to, on the last working
date of the Court. In my view, the
application for injunction ought to have
been considered by the Court after notices
were issued to the opposite parties.
Consequently, at this moment, I do not
find that the basic ingredients for the
grant of injunction existed. Further the
mandatory provisions of Order 39 Rule 3
C.P.C. was not complied by the Court
3 All] M/s Ashok Prakashan and another V. Sunil Kumar and others
1109
below.
Consequently,
the
injunction
cannot continue any further.

23. In view of the aforesaid, the
effect and operation of the injunction
order dated 29.5.2006 passed by the
Incharge
District
Judge,
Meerut
in
Original Suit No.1 of 2006 shall remain
stayed till further orders of the Court.

24. In view of the aforesaid, I do not
find it feasible to dwell upon the other
grounds raised by the appellants and the
plaintiff opposite party.

25. Since 6.7.2006 has been fixed
for the appearance of the defendantsappellants.
I
direct
the
defendantsappellants to appear before the Court
below on the said date and file their reply/
objections.
The
Court
below
shall
consider the injunction application afresh
and shall pass such and further orders
after hearing the parties within six weeks
from the date of the production of a
certified copy of this order.

26. It is made clear, that any
observation or finding given in this order
are only prima facie opinion of the Court
and the Court below shall not be
influenced by any observation or finding
given in this order while considering the
injunction application.

27. List this appeal for admission
and for orders before the appropriate
Court in the third week of August 2006.

Certified copy of this order to be
made available to the parties, upon
payment of usual charges, within four
days.
---------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 18.05.2006

BEFORE
THE HON'BLE AJOY NATH RAY, C.J.
THE HON'BLE ASHOK BHUSHAN, J.

Special Appeal No.1169 of 2004

Raghunath Prasad Yadav ...Petitioner/
Appellant
Versus
District Inspector of Schools, Gorakhpur
and others ...Respondents/Opp. Parties

Counsel for the Appellant:
Sri Dr. R.G. Padia
Sri Prakash Padia

Counsel for the Respondents:
Sri R.U. Ansari
Sri R.V. Singh
S.C.

U.P.
Secondary
Education
Service
Commission of Selection Board Act,
1982-Selection Board Act, 1982-Section
18-read with U.P. Secondary Education
Service
Commission
(Removal
of
Difficulties)
Order
1981)-Pra-5-Adhoc
Appointment-on substantive post of L.T.
grade Teacher-vacancy caused due to
retirement of one Mr. K.P. Singh on
30.6.91-vacancy notified by manager on
10.6.91-further amended authorising the
manager to fill the post on 2.8.01vacancy notified on notice board on
23.8.91-appointed on 26.8.91-whether
the period of sixty days as mentioned in
Section 18 is mandatory?-held-"yes"-
appointment without advertisement in
two news papers-State can not be
burdened for salary.

Held: Para 11

In view of the aforesaid the appointment
of the appellant having been made
without advertisement in two news
papers which is the case of the petitioner