ABRAHAM Vs. SADANANDAN

JUDGEMENT

(1.) THE plaintiff whose suit for damages for infringement of copy right and other incidental reliefs was dismissed by the lower court is the appellant. A Malayalam cinematograph film by name "collector malathy" (hereinafter referred to as the film) was released on 14-9-1967 in various centres in Kerala. THE first defendant wrote the screen play and dialogue, the second defendant produced the film and it was distributed in kerala by the third defendant. THE plaintiff alleged that this film is a bare adaptation of the central theme, plot and sub-plots of a Malayalam Drama by name "sarala Vijayam" written by him in 1948, published in 1952 and distributed through leading bookstalls. THErefore the plaintiff alleges that the defendants have infringed his copy right in the drama. All the defendants resist the suit, but the main contesting defendant is the first defendant. Among other contentions his two main contentions were that the suit is barred by limitation and that there is no infringement of the plaintiff's copyright as alleged by the plaintiff. THE plot of the story was supplied by the second defendant and the first defendant wrote the screen-play and the dialogue for the film. THE script so prepared is the original work of the first defendant and in writing it he has not re-produced any portion of the drama written by the plaintiff. THE theme including the idea and the arrangement of the incidents and the dialogue and working out of the story in the film has nothing to do with the drama nor is it an adaptation or re-production of it Even if there was some casual connection or similarity in the plots, incident, etc. , between the two works that is insufficient to constitute an infringement as alleged in the plaint. THE trial court after an elaborate trial and accepting the two contentions raised by the defendants dismissed the suit. This is challenged in this appeal.

(2.) THE first point argued by the plaintiff's counsel is that the lower court was wrong in holding that the suit is barred by limitation. To understand this question of limitation some dates have to be borne in mind. THE plaintiff himself admits that the film was released on 14-9-1967. THE suit was filed on 15-9-1970 in the Munsiff's Court, Kottayam. In the plaint itself it was stated that the last day of limitation is 14-9-1970 and that being a holiday it is filed on the next day. On 7111970 the Munsiff's court ordered a return of the plaint for presentation to the proper court. THE proper court for a suit for infringement of copy right is the District Court as provided in S. 62 of the Copy Right Act (Act 4 of 1957 ). On the back of the plaint returned there is a direction which reads as follows: "time to represent 15 days. Court fee paid will be given credit to". THE suit was re-presented on 16-11-1970. THE plaintiff has invoked S. 14 of the Limitation Act to exclude the period during which the suit was pending in the Munsiff's Court. According to the lower court S. 14 has no application here and even if that provision is available the plaintiff has not made out that he prosecuted the suit in a wrong court bona fide. THE lower court also held that there is no justification for excluding the period from 7111970 to 16-11-1970 in reckoning the period of limitation. How far this view of the lower court is correct may be looked into.

(3.) EVEN assuming that the period during which the suit was pending in the Munsiff's Court is excluded the plaintiff will not be in time in filing the suit on 16-11-1970 in the District Court. The suit was returned for presentation to the proper court on 7-11-1970. Exclusion, if any, under S. 14 stops with that date. Any period of grace granted for getting credit of the court-fee already paid will not be a period of limitation provided for in the Limitation Act. The practice of granting the plaintiff time to present the plaint in the proper court to get credit of the court-fee paid on the plaint filed in wrong court, is not based by any statutory provision and that period is not a period during which the suit can be said to be pending in the wrong court. The pendency in the wrong court has stopped with the return of the suit for presentation in the proper court and that being so the period from 7-11-1970 to 16-11-1970 does not come under S. 14 of the Limitation Act. I am supported in this conclusion by the decision of Vaidialingom, J. in Parameswara kurup v. Vasudeva Kurup (1964 KLT. 145 ). The basis for the decision is stated to be that the wrong court, and for that matter any court, has no jurisdiction to extend the period of limitation prescribed for filing a suit. For all these grounds I hold that the suit was rightly dismissed by the lower court on the ground of limitation.