(1.) This is an appeal by the plaintiff in a copyright suit.
(2.) The plaintiff is the author of a book entitled "Adarshalipi-o-Sharal Barna Parichay" which was first published on the 3 November, 1902, and has since then passed through numerous editions. In 1919, the defendants published two books called respectively "Nutan Pathsala Adarshalipi" and "Nutan Maktab Adarshalipi." The present suit was instituted on the 12 May, 1920, for damages and injunction. The damages, claimed amounted to Rs. 400 and the injunction was valued at Rs. 9. On the 17 August, 1920, the first defendant alone filed a written statement. Thereupon seven issues were raised on the 4 September, 1920, in the following terms : (1) "Has the copyright of the plaintiff been duly registered? If not, is the suit maintainable? (2) Is the suit maintainable in its present form? (3) Is the suit bad for misjoinder of causes of action? (4) Is the suit against public policy? (5) Has the defendant infringed the copyright of the plaintiff? (6) Is the plaintiff entitled to any damages? If so, to what extent? and (7) What relief, if any, is the plaintiff entitled to? The plaintiff was examined in support of his case on the 16 December, 1921. At the conclusion of his examination-in- chief, the District Judge decided to hear the arguments, with the result that the plaintiff was not cross-examined on behalf of the defendants. The District Judge had evidently come to the conclusion that the plaintiff had no case upon the plaint and his oral testimony. The suit was ultimately dismissed with costs on the 23 December, 1921. It may be noted at this stage that under Section 13 of the Indian Copyright Act, 1914, every suit or other civil proceeding regarding the infringement of copyright shall be instituted and tried in the High Court or the Court of the District Judge. This explains why the suit was tried by the District Judge though the claim was valued at Rs. 409. The necessary consequence is that every decision in a suit of this description by the District Judge has to be brought up to this Court on first appeal. We are of opinion that the suit has not been properly tried and that the relative situation of the contesting parties has not been clearly appreciated.
(3.) The Indian Copyright Act, 1914, shows in Section 3 that in the application to British India of the Copyright Act, 1911 (1 & 2 George V, Chap. 46), specific modifications have been made which, are enumerated in the five clauses of the section. Those clauses do not affect the question now raised before us for consideration. The position thus is that Section 6, Sub- section (3) of the Copyright Act, 1911, is applicable to this ease. That sub-section is in the following terms : In any action for infringement of copyright in any work, the work shall be presumed to be a work in which copyright exists and the plaintiff shall be presumed to be the owner of the copyright unless the defendant puts in issue the existence of the copyright or, as the case may be, the title of the plaintiff. The sub-section then makes provision for other presumptions when such question is in issue. In this case, as already stated, the defendants did not put in issue the existence of the copyright. Consequently, there was an irrebuttable presumption that the alleged work was a work in which copyright subsisted and the plaintiff was the owner of the copyright. We start then with the statutory presumption, which cannot be rebutted, that the work put forward by the plaintiff is a work in which copyright subsists and he is the owner of the copyright.