JOSEPH Vs. SARA THOMAS

JUDGEMENT

(1.) REVISION petitioner wrote a Malayalam Novel by name 'manushyanum Kadalum" (The Man and sea) in the year 1968 and it was subsequently published in Viswadharmam weekly. It is the case of the petitioner that the same idea was used in the story called'valakar' published in the respondents' Sunday Supplement without obtaining any permission or consent from him. Therefore, O. S. No. 2/92 was filed stating that respondents 1 to 5 after knowing fully well the implication of violation of the provisions contained in copy Right Act, 1957 have contravened the rights recognised under the common law. S. 55 of the Copy Right Act provides that the owner of the copy right is entitled for such remedies by way of injunction, damages accounting etc. The story published in the name of'valakkar' is nothing but a modified re-production of 'manushyanum Kadalum' written by the petitioner. Therefore, petitioner filed the suit for injunction and accounting and claiming an amount of Rs. 10,00,000/- as damages. Before filing written statement, the question of payment of court fee was heard by the Court and the court found that petitioner/ plaintiff was praying for injunction and other reliefs. Therefore, petitioner has to pay court fee as per the pro visions of Court Fees and Suits valuation Act. It was the contention of the petitioner that since the case was filed under the Copy Right Act, 195 7, no court fee need be paid under the Court fees and Suits Valuation Act. That contention was not accepted by the Court and found that total court fee he has to pay Rs. 410/- and the petitioner was directed to pay balance court fee.

(2.) A statement was filed by the respondents stating that the relief claimed by the petitioner along with the injunction application is rs. 10,00,000/- as damages. Therefore, appropriate court fee under S. 22 of the court Fees and Suits Valuation Act should be paid. Respondents filed objections on 8. 2. 1994 stating that court fee should be paid according to the amount of damages claimed in the plaint. Written statement was filed on 1. 8. 1994. There also the specific contention regarding non-payment of appropriate court fee was raised. Thereafter, the court examined the matter and by the impugned order, the Court directed the petitioner/ plaintiff to pay court fee on the amount of damages claimed by him. This order is challenged stating that the suit is filed for violation of copy rights under the Copy Right Act. The main prayer is, injunction for violating the copy right and claim of damages etc. are only incidental. Therefore, even if Court Fees Act is applicable, court fee is payable only under S. 50 of the Act and not under S. 22 of the Act. For this, the examination of the plaint is necessary. In the plaint, it is stated that respondents infringed the copy right and violated the provisions of Copy Rights act and such infringement and alleged action of the defendants caused irreparable loss and damages to the plaintiff. Relief No. 3 is to direct the respondents to file statements to sale and the profits claimed by the defendants and relief No. 5 is to allow the suit with damages and costs. The amount of damages was estimated as Rs. 10,00,000/

(3.) S. 22 of the Court Fees Act states that in a suit for money (including a suit for damages or compensation, or arrears of maintenance of annuities, or of other sums payable periodically) lee shall be computed on the amount claimed. S. 50 of the Court Fees Act is a residuary provision governing all suits which are not otherwise provided for. Itis the contention of the petitioner that since the main relief is an interim injunction claimed under the Copy Right Act and the claim for accounting are only incidental, the suit valuation has to be made under S. 50 and not under S. 22 of the Court Fees Act. S. 50 of the Court Fees Act is a residuary section. Since claim for damages comes under specific S. 22, valuation should be on the basis of S. 22 for the relief No. 5 claimed in the plaint. Specific section should be preferred to residuary section. When there can be a parentage, it cannot be sent to an orphanage, ie. , residuary section. But it is clear that petitioner has claimed damages. In the plaint it was estimated at Rs. 10,00,000/- Of course, there is a claim for accounts also and it was also stated that petitioner is entitled to more amount as damages. If more amount is entitled to the petitioner, final decree can be passed only after paying balance court fee according to the amount awarded. Even in a suit for accounts when estimated amounts are claimed, amount has to be paid on the estimated amount in the claim. When the petitioner claims damages, he is bound to pay court fee on the amount estimated as damages by him on his own assessment. In this case, Rs. 10,00,000/- was the amount estimated by him in the original plaint as damages, and that amount should be taken into account for the purpose of valuation and S. 22 of the Kerala Court fees and Suits Valuation Act is applicable. Hence, the impugned order is correct in law and I see no grounds to interfere in the same. Therefore, the crp is dismissed. . .