HABEEBUR RAHMAN Vs. RAM BABU AND BROS JALAGAON

JUDGEMENT

(1.) THIS in an appeal against an order dismissing an application for injunction filed by the plaintiff pending disposal of its suit based upon a copyright alleged to have been used by it since 1930.

(2.) WE do not propose to go into the details of the arguments advanced on both sides as we intend disposing of the matter on a very short ground. The learned trial Judge has dismissed the application on the ground that the plaintiff has not made out a prima facie case and that it had failed to obtain an injunction in two earlier proceedings instituted by it in Andhra Pradesh. Courts. There was also a proceeding in Andhra Pradesh High Courts where the plaintiff failed to get an injunction restraining the defendant from carrying on the business. No doubt it is common ground that the proceedings in Andhra Pradesh courts related to infringement of trade mark and passing-off, the goods of the defendants as that of the plaintiff and that the question of infringement of copyright was not involved in those proceedings.

(3.) LEARNED counsel for the appellant relies upon the entry in Col. 9 of the Certificate issued by the Deputy Registrar of Copyright to the effect that the first publication was made in 1937. Our attention is drawn to Sec. 48 of the Copyright Act under which the register of copyrights shall be prima facie evidence of the particulars entered therein. LEARNED counsel urges that as the entry in the register of copyrights is prima facie evidence the plaintiffs case that it has been using the copyright since 1937 has to be accepted as established for the purpose of interlocutory applications. It is further contended that since admittedly the defendant had been using the mark only from 1965 it should be prevented by an order of injunction from carrying on its business. We are unable to accept this contention as the registration of the copyright came into existence only in 1933 after disputes had arisen between the parties and after the plaintiff had failed in the Courts of Andhra Pradesh to obtain an injunction. The entry, which is prima facie evidence under Sec. 48 of the Copyright Act, cannot be taken any further in view of the fact that is has come into existence only during the pendency of the litigation's. Hence, the conclusion of the learned Judge that the plaintiff has not made out a prima facie case for the order of injunction is unassailable.