KHEMRAJ SHRIKRISHANDAS Vs. GARG AND CO

JUDGEMENT

(1.) This first appeal from order has been filed by the plaintiffs against the order of Mr. P. L. Singia, 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 Sainvat 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 com- piled 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 ca,se 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 I and 2 rely, has neither been filed nor relied upon in ihc court, although it is, if genuine, an extremely material document from which the defendants derive support. As is apparent 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. 2.000.00 per .annum, out of which he had received Rs, 2.000.00 for the earlier Samvat and Rs. 500.00 as advance for the following Samvat. Thereafter, defendant No. 1 has published & 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 defcndants are deceptively similar to their own. Feeling aggrieved, the plaintiffs have instituted the suit on 22nd October, 1973 in the 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 or the title cover of the Panchang they print religious signs and symbols of a particular pictorial device and on the back side of the covcr also they print and publish device of the planets and that then Panchang is known as "Mani Ram Panchang, Ma,nav 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. 50.000.00 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.