LALLUBHAI MOTIRAM Vs. LAXMISHANKAR AMBALAL

JUDGEMENT

(1.) These are two appeals from the District Judge of Kaira. The action, which gives rise to them, concerns the copyright in a picture drawn and coloured by the plaintiff in November, 1933, of Shri Ranchhodraiji's Diwali Shringar.

(2.) In 1935 the plaintiff filed a suit against defendant No. 1 alleging the infringement of the plaintiff's copyright in the said picture by a picture of defendant No. 1. Some confusion has occurred in the Court below, the repercussions of which have followed this appeal, with regard to the numbering of the exhibits, there being in fact two exhibits Not 19. In order to avoid any, further confusion I propose to refer to the plaintiff's picture made in November, 1933, as. the " 1933 picture," and the first defendant's picture as the " 1935 picture," and to the other picture with which this suit is concerned, as the " 1939 picture." The original exhibits will be marked accordingly.

(3.) The former suit was compromised, and by the consent decree a permanent injunction was granted against defendant No. 1 restraining him, in effect, from infringing the plaintiff's copyright. Thereafter, until 1939, nothing appears to have happened until defendant No. 2 published a large number of lithograph prints of the picture, which I will refer to as the " 1939 picture," and which has been sometimes referred to as exhibit 21 and sometimes as exhibit 83. Of this picture it is said, not only that it infringes the plaintiff's copyright in the 1933 picture : but also, that, although it has been put forth in the name of defendant No. 2, as appears from the right-hand bottom corner of the lithograph prints, this device is only a cloak or sham and that in reality1 it is the work and publication of defendant No. 1 ; so that, so far as he is concerned, it is not only a breach of the plaintiff's copyright in the 1933 picture; but is also a violation of the injunction granted by the consent decree in 1935. In that event both defendants would be. liable to have an order made against them for an injunction and consequential relief, and in the case of defendant No. 1, he would also be liable foe the consequence of his breach of the consent decree In the Court below the learned Judge held that the 1939 picture was published irreality by defendant No. 1 in the name of defendant No. 2, and he held that the injunction in the 1935 consent decree was operative against defendant No. 2 Somewhat surprisingly he found in answer to issue No. (5) that the 1939 picture was not a colourable imitation of the 1933 picture and that the 1939 picture could not be passed off for the 1933 picture. This apparent inconsistency appears to have arisen from the fact that the learned Judge considered that the consent decree was complete bar to defendant No. 1 or any one in collusion with him or on his behall publishing any picture of Shri Ranchhodraiji. Although the consent decree is draw up in the most inartistic terms, it is not capable, in our judgment, of bearing any such wide construction.