Calcutta High Court
Sukhendu Maity vs Abhinaba Prakashan And Ors. on 19 April, 2005
Equivalent citations: 2005(3)CHN1
Author: Bhaskar Bhattacharya
Bench: Bhaskar Bhattacharya
JUDGMENT Bhaskar Bhattacharya, J.
1. This appeal is at the instance of the defendant No. 1 in a suit for injunction and is directed against Order No. 12 dated 27th January, 2005 passed by the learned Judge, 11th Bench, City Civil Court at Calcutta in Title Suit No. 1242 of 2004 thereby disposing of an application for temporary injunction filed by the plaintiff-respondent under Section 151 of the Code of Civil Procedure by restraining the present appellant from publishing "Madhyamik Bhouta Bignyan" for Class IX and X through any other publisher than the respondent till the disposal of the suit.
2. The facts leading to the filing of the present appeal may be encapsulated thus:
The plaintiff-respondent filed a suit in the City Civil Court at Calcutta being Title Suit No. 1242 of 2004 thereby praying for an order of permanent injunction restraining the present appellant from publishing a book on Physical Science for Class IX and X as per new syllabus effective from the Academic Session 2005-2006. In connection with the aforesaid suit, the respondent filed an application for temporary injunction for restraining the present appellant from entering into any agreement with any other publisher for publication of the said book till the disposal of the suit.
3. The learned Trial Judge issued a notice to show cause upon the present appellant why the prayer of the respondent should not be granted but refused to grant any ad interim order of injunction on such application.
4. During the pendency of the aforesaid application for temporary injunction, the respondent came up with a fresh application for temporary injunction by describing the same as one under Section 151 of the Code of Civil Procedure thereby praying for temporary injunction restraining the present appellant from publishing "Madhyamik Bhouta Bignyan (Bengali Version)" for Class IX and X through any other publisher than the respondent. The case made out by the respondent in such application may be summed up thus:
(a) The plaintiff is a partnership firm and is a publisher and book seller having office within the jurisdiction of the Trial Court. The plaintiff had been publishing text books for school students for more than 30 years and had achieved fame and popularity in the field of publication.
(b) The plaintiff had been publishing the books on Physical Science written by the defendant, a retired teacher of Scottish Church Collegiate School from the year 1974. The plaintiff had also been publishing Physical Science Books for Class VII and VIII written by the defendant from the year 1974-75 and published books of the same author according to the new syllabus for 2004.
(c) By an agreement dated 23rd April, 2004 by and between the parties, the defendant agreed to deliver the manuscript for "Saral Prakitik Bignyan" of Class VII and VIII and "Madhyamik Bhouta Bignyan" for Class IX and X (new syllabus). According to Clause 8 of the said agreement, it was settled between the parties that in case of change of syllabus by appropriate authority, the author would modify and/or change the book in accordance with the requirement and would give the first option to the publisher to publish the new book and if after giving six months notice, the publisher did not communicate in writing its intention to publish the book, all the rights in spite of copyright of the said book would cease to have any effect in favour of the publisher.
(d) According to the said agreement, the plaintiff published a Physical Science Book for Class IX and X as per Rules of the West Bengal Board of Secondary Education written by the defendant and the plaintiff had already paid royalty to the defendant for the Academic year 2004-2005. The aforesaid publication was in accordance with old syllabus published for the last 27 years. So far "Saral Prakitik Bignyan" is concerned, the said book written for Class VII and VIII was still being published by the plaintiff and there was no dispute with the defendant with regard to the said book.
(e) On 25th August, 2004, the defendant by a letter informed the plaintiff that from the Academic year 2005-2006, the West Bengal Board of Secondary Education was going to change the syllabus of Physical Science for Class IX and X and the defendant would not publish any book through the plaintiff for the coming Academic year.
(f) As per agreement dated 23rd April, 2004, the defendant cannot publish any book through any other publisher for Physical Science without giving notice mentioned in Clause 8 of the agreement.
(g) The plaintiff would suffer irreparable loss and injury, inasmuch as, in course of such a short period it was impossible to contract with some other writer for publishing a new book on the subject. December 6, 2004 is the last date for submitting books before the Board of Secondary Education for selection of the same and as such, unless injunction is granted restraining the defendant from publishing the said book through any other publisher, the plaintiff would suffer irreparable loss and injury.
5. The said application was moved before a Vacation Bench and the learned Trial Judge, on November 4, 2004, on the basis of such application issued an ad interim order of injunction, although, on the previous application, the Court refused to grant ad interim injunction vide the Order No. 3 dated 1st October, 2004.
6. Being dissatisfied with the aforesaid order dated 4th November, 2004 passed by the learned Trial Judge thereby granting ad interim order of injunction, the present appellant preferred an application under Article 227 of the Constitution of India before this Court on 29th November, 2004 when Soumitra Sen, J. disposed of such application by modifying the order impugned to this extent that the appellant would be permitted to place his book before the West Bengal Board of Secondary Education for approval. His Lordship declined to enter into the merit as that very day was fixed for hearing of the injunction application in the Trial Court and His Lordship in such circumstances, directed the appellant to file written objection within a week and also directed the learned Trial Judge to take up the injunction application within fortnight and to dispose of the same within a month thereafter without granting any unnecessary adjournment to the parties.
7. Subsequently, the present appellant filed the written objection against the application for injunction on 3rd January, 2005 and the learned Trial Judge on that day, extended the interim order of injunction on the prayer of the plaintiff till 1st February, 2005.
8. In the meantime, the learned Chief Judge, City Civil Court at Calcutta on the prayer of the defendant transferred the matter to the 11th Bench of the City Civil Court and accordingly, the transferee Court took up the matter on 27th January, 2005 and disposed of the application for injunction by allowing the same thereby making the previous interim order dated 4th November, 2004 absolute.
9. Being dissatisfied, the defendant has come up with the present appeal.
10. At the very outset we make it clear that although the second application for injunction is described as one under Section 151 of the Code, in reality, the prayer made therein clearly comes within the purview of Order 39 Rules 1 and 2 of the Code and as such, this appeal should be held to be maintainable as the order impugned comes within the scope of Order 43 Rule 1(r) of the Code. It is now settled law that in deciding the question whether a particular order is appealable or not, the Court should not be guided by the wrong quotation of the provisions of a statute by the Court in the order impugned or by such wrong description given by parties of an application upon which the order was passed, but the Appellate Court should find out the exact provision of the statute which authorised the Court to pass such order. Applying the aforesaid test we find that the order impugned really came within Order 39 Rules 1 and 2 of the Code although wrongly described as one under Section 151 of the Code. This appeal is therefore maintainable.
11. Mr. Roy Chowdhury, the learned senior advocate appearing on behalf of the appellant, has vehemently attacked the order impugned on the ground that the learned Trial Judge illegally refused to take into consideration the written objection filed by the present appellant to the application for injunction as the same was filed beyond seven days from the date of order passed by Soumitra Sen, J. Mr. Roy Chowudhry contends that there was no mandate given by His Lordship that the learned Trial Judge would not accept the objection to the application for injunction if filed beyond the said date. According to Mr. Roy Chowdhury, when the Trial Court failed to take up the injunction matter within fortnight from the date of order of Soumitra Sen, J, as per His Lordship's direction, there was no justification of rejecting the written objection filed by his client. Mr. Roy Chowdhury points out that the Court, however, took into consideration the supplementary affidavit filed by the plaintiff in support of the application for temporary injunction notwithstanding the fact that the same was filed long thereafter.
12. Even on merit, Mr. Roy Chowdhury contends that so called agreement itself will show that the same was a fabricated one. Mr. Roy Chowdhury points out that the language used in the agreement will manifest that the same was meant for one book only, but it will appear that in addition to a book for Class VII and VIII, the disputed book has also been incorporated by way of addition. Moreover, Mr. Roy Chowdhury points out that the disputed book is meant for new syllabus commencing from the Academic year 2005-2006 and it will appear from the materials on record that new syllabus was declared in the month of May, 2004 whereas the alleged agreement was entered into on 23rd April, 2004, which, according to Mr. Roy Chowdhury, was absurd. Mr. Roy Chowdhury further points out that the agreement was not even fully filled up and the plaintiff failed to prove that any amount of money was paid to his client for the purpose of present book.
13. Mr. Roy Chowdhury further contends that the plaintiff having failed to prove any prima facie case, the learned Trial Judge acted illegally in granting the order of injunction. In this type of cases, Mr. Roy Chowdhury continues, the appropriate remedy of the plaintiff lies by claiming damages if there is any breach of agreement.
14. At the time of hearing of this appeal, the plaintiff has filed two applications under Order 41 Rule 27 of the Code of Civil Procedure for the purpose of bringing on record the fact that according to circular issued by the Board of Secondary Education, one publisher cannot publish more than one book on the self-same subject. By such application, the defendant has further drawn attention of this Court to the fact that the plaintiff in this case had already submitted another book on the very same subject through a different author and the Board has approved such book. By relying upon such additional evidence, Mr. Roy Chowdhury submits that the plaintiff has abandoned his right, if any, under the alleged agreement by entering into a fresh agreement with another author on the same subject.
15. The aforesaid applications for taking additional evidence were opposed by the plaintiff and its contention was that the so called direction of the Board was meant for books up to Class VIII but the said restriction had no application for books for Class IX and X.
16. The Board was made a proforma defendant in the suit. In view of the aforesaid dispute raised by plaintiff, this Court directed notice upon the Board through its learned advocate, namely, Mr. Kallol Basu who appeared on behalf of Board in this Court. Mr. Basu on taking instruction from the Secretary of the Board has filed written instruction confirming that the principle that one publisher cannot publish more than one book on the self-same subject is applicable to books for all classes. We have, therefore, decided to take into consideration the aforesaid written instruction given by the Secretary of the Board as additional evidence as the Court required such additional evidence for effective disposal of the appeal.
17. Mr. Banerjee, the learned senior advocate appearing on behalf of the plaintiff, has opposed the aforesaid contentions of Mr. Roy Chowdhury. He also vehemently opposes the veracity of the contents of the letter written by the Secretary and submits that unless any circular issued by the Board is placed before this Court, by production mere statement of the Secretary of the Board, the defendant cannot prove that there is any impediment in publishing more than one book on the self-same subject through one publisher.
18. On merit, Mr. Banerjee contends that the learned Trial Judge rightly refused to take into consideration the written objection filed by the defendant, inasmuch as, the same was filed beyond seven days from 29th November, 2004, the date of passing of the order by Soumitra Sen, J., Mr. Banerjee contends that when a superior Court fixed a date for filing such objection, unless modification is made by that superior Court, the learned Trial Judge could not act against such order.
19. Mr. Banerjee further contends that the defendant having failed to dispute his signature on the agreement, the leaned Trial Judge rightly held that a strong prima facie case has been made out, inasmuch as, in the agreement there is a negative covenant not to write any further book without giving offer to the plaintiff on the basis of the changed syllabus. Mr. Banerjee contends that it is now settled law that during subsistence of an agreement, a negative covenant restraining any party to it from doing any act can be lawfully enforced. In support of such contention, Mr. Banerjee relies upon the decisions of the Supreme Court in the cases of Superintendence Company of India (P) Ltd. v. Krishna Murgai, reported in AIR 1980 SC 1717; Niranjan Shankar Golikari v. Century Spinning and Manufacturing Co., Ltd., reported in AIR 1967 SC 1096 and also in the case of. Gujarat Bottling Co. Ltd. and Ors. v. Coca Cola Company and Ors., reported in AIR 1995 SC 2372. Mr. Banerjee, thus, prays for dismissal of the appeal.
20. After hearing the learned counsel for the parties and after going through the materials on record including the order passed by Soumitra Sen, J., we find that while disposing of the revisional application against grant of ad interim order of injunction. His Lordship did not interfere with the order but gave liberty to the present appellant to place his book before the Board of Secondary Education for approval as the last date of submitting book was going to expire. His Lordship, however, did not enter into the merit of the injunction matter as that very day was fixed for hearing of the injunction matter in the Trial Court. His Lordship, therefore, directed the present appellant to file opposition to the injunction application within a week from that day. Reply, if any, by the plaintiff was to be given within one week thereafter and the learned Trial Judge was directed to take up the application for hearing within fortnight from that day. His Lordship further directed the learned Trial Court should dispose of the injunction application preferably within one month from the date of hearing.
21. In the said order, there was no condition that in default of filing of the objection within seven days, the same would not be accepted. Therefore, we are of the view that there was no bar in extending the time for filing of the written objection by invoking power under Section 148 of the Code when the written objection was in fact given on 3th January, 2005 which was very much within one month from the last date of filing objection as per order of the Soumitra Sen, J,. Thus, there was no justification of not accepting the belatedly filed written objection when the learned Trial Court itself extended the ad interim order of injunction till 1st February, 2005 in violation of the order passed by His Lordship.
22. The learned Trial Judge, thus, acted illegally in refusing to take into consideration the written objection filed by the defendant and on that ground alone, the order impugned is liable to be set aside.
23. Mr. Roy Chowdhury at this stage submitted that since the last date for submitting book has already expired and in view of existence of the order of injunction, his client is unable to publish the book, instead of remanding the matter back to the learned Trial Judge for fresh decision after taking into consideration the written objection, this Court should hear out the injunction application on merit. Since the parties have already filed their written objections and we have also allowed application under Order 41 Rule 27 of the Code, we decided to hear out the appeal on merit by exercising our power under Section 108(b) read with Section 107 of the Code of Civil Procedure.
24. After hearing the learned counsel for the parties and after going through the materials on record, we are convinced that there is a restriction imposed by the Board not to publish more than one book at the instance of one publisher on the self-same subject, as it appears from the written instruction given by the Secretary of the Board. The Board is proforma defendant in the suit and when the Secretary of the proforma defendant has taken the responsibility of such statement, we do not find any reason to disbelieve such written instruction. Moreover, if the said written instruction was wrong, in that case, the plaintiff could easily produce materials before the Court showing instances where one publisher has in fact published more than one book on the self-same subject with the approval of Board; but, in spite of giving opportunity to lead evidence by way of rebuttal to the additional evidence, the plaintiff could not produce such materials. It has also been accepted that the plaintiff through another writer has already submitted a book on the self-same subject and the Board has approved such book. Once such book has been approved, it necessarily follows that even if there was any agreement between plaintiff and the defendant, the plaintiff has abandoned its right under such agreement by entering into another agreement with a different writer. In such circumstances, there is no justification of restraining the defendant from publishing his book through another publisher.
25. In our view, it was the duty of the plaintiff at the very outset to submit before this Court that it has also entered into agreement with another writer and has placed such book before the Board for approval and suppression of such fact must be held to be suppression of material fact disentitling the plaintiff from any equitable relief. We are also unable to approve the conduct of the plaintiff in moving a second application of temporary injunction during puja vacation almost on the same materials when the earlier application for temporary injunction where ad interim order was refused was still pending. The only additional fact alleged in the second application was that the defendant was going to enter into new agreement with other publisher and that December 6, 2004 was the last date fixed by the Board for submitting books. By the letter dated August 25, 2004 the defendant made it clear that he would get his book published through another publisher and such letter was the cause of action of the suit and was also mentioned in the first application filed by the plaintiff. Therefore, practically on the basis of same materials the second injunction application was filed. If the Board fixed December 6, 2004 for submission of the books, such fact cannot afford additional ground for filing an application for prohibitive injunction against the defendant when the plaintiff itself has already submitted a book on the same subject with the help of another author within that date. Position would have been different if the plaintiff prayed for mandatory injunction directing the defendant to deposit his book through plaintiff by that date.
26. Even on prima facie merit of the agreement, we find substance in the contentions of Mr. Roy Chowdhury that the alleged agreement is couched in such a way that it is apparent that the same was meant for only one book and the name of the disputed book has been inserted as the "second book" after giving a comma at the end of another book which is grossly unusual. Moreover, on 23rd April, 2004 there was no scope of entering into agreement for writing a book on new syllabus when new syllabus was announced by the Board in the month of May, 2004 and already a book of the defendant through the plaintiff was there in the market on the basis of existing syllabus. According to the Clause 8 of the agreement relied upon by the plaintiff, after writing a book on new syllabus, if there is further change of syllabus, at that point of time the defendant should give option to the plaintiff first for publication of the book on the basis of such changed syllabus. If we accept for the sake of argument that any agreement dated 23rd April, 2004 was really executed for the disputed book for new syllabus, such new syllabus being effective from the Academic session 2005-2006, there was no scope of invoking Clause 8 as the same would be applicable after the defendant writes a new book on new syllabus and the said syllabus is further changed. Therefore, we find that the plaintiff has even failed to prove any prima facie case on the basis of Clause 8 of the alleged agreement. It is needless to mention that plaintiff even failed to prove any document showing that the defendant had accepted any money for writing any book on the basis of new syllabus. The money that has been alleged to have been paid was in respect of book under the old syllabus which is continuing for the last 27 years. We are also unable to accept the contention of Mr. Banerjee that the writing of letter in the month of August, 2004 pre-supposed a prior agreement between the parties when in this case, the plaintiff has been undisputedly publishing the defendant's books under the old syllabus for the last 27 years and the defendant is dissatisfied with the payment of royalty and demanded furnishing of account. We are not disputing for a moment the proposition of law laid down in the decisions cited by Mr. Banerjee and it is well-settled that a negative covenant can be enforced provided the execution of the agreement is prima facie proved but in this case the plaintiff has failed to prove prima facie case even to get an order of injunction.
27. On consideration of the entire materials on record, we, thus, find that the plaintiff has failed to prove prima facie case and as such, it is a fit case where no injunction should be granted. Moreover, even by its own conduct, the plaintiff has abandoned his right under the alleged agreement by entering into new agreement on the self-same subject with a different author. Therefore, if finally at the time of hearing of the suit it appears that there was really a valid agreement between the parties and that the defendant violated its terms, the plaintiff will have its remedy by claiming damages against the defendant.
28. We, thus, set aside the order impugned and reject the application for injunction filed by the plaintiff. We make it clear that observations made herein are all tentative for the purpose of disposal of appeal against the order of temporary injunction and the learned Trial Judge will not be influenced by the observation made herein at the time of disposal of the suit on merit.
29. We are given to understand that the defendant has deposited a book through another publisher pursuant to the leave granted by Soumitra Sen, J. in the revisional application filed by the defendant earlier but the defendant apprehends that due to injunction order passed by the Trial Court, the Board has not considered the said book on merit. We make it clear that if the said book is not considered for the existence of injunction order which has been set aside by this Court, the Board should consider the said book for approval strictly on merit as the defendant should not suffer for a wrong order passed by the Trial Court which has been set aside by this order. The Board being a proforma defendant in the suit, we direct the Board to communicate its decision to the defendant on the question of approval within a fortnight from the date of communication of this order.
30. In the facts and circumstances, there will be, however, no order as to costs.
Rajendra Nath Sinha, J.
31. I agree.