Andhra Coffee and Flour Mills vs Brooke Bond India Limited

S.S. Subramani, J.—The suit filed by the plaintiff is to restrain the defendant by an order of perpetual injunction from infringing the plaintiff''s

copyright in the artistic work green label stand back pouch, by use of golden label stand back pouch, or any other pouch similar to plaintiff''s green

label stand pack pouch; for a perpetual order of injunction restraining the defendant by itself, its partners/ proprietor, servants, agents distributors,

stockists or any of them from in any manner passing off or enabling others to pass off the defendant''s goods as and for the goods of the plaintiff by

use of golden label stand pack pouch or any other pouch similar to plaintiff''s green label stand pack pouch or in any other manner whatsoever; and

for consequential reliefs.

The suit is filed u/s 62 of the Copyright Act. Before instituting the suit, the plaintiff also filed an application for leave permitting it to institute the

suit before this Court on 21.12.1992. That application was allowed. Pursuant to the same, the suit was filed. Thereafter, after getting notice, the

defendant has filed this application to revoke the leave granted to the plaintiff.

For getting leave of the court, it was averred by the plaintiff that the respondent (defendant) is manufacturing and selling coffee packed in golden

label stand pack pouches, that the respondent''s golden label stand pack pouches are an imitation of the plaintiff''s artistic work green label stand

pack pouch in colour scheme, get up and lay out, that the defendant has infringed the plaintiff s copyright in the artistic work green label stand pack

pouch u/s 61 (2) of the Copyright Act. According to the plaintiff, the respondent/defendant''s activities give rise to cause of action within

thejurisdiction of this Court, and as the respondent is located at Ongole, Andhra Pradesh, it has become necessary to obtain leave of this Court to

sue the defendant before this Court.

It is further averred in paragraphs 4 and 5 of the affidavit filed in Support of the application for leave, that the cause of action arose at Madras

within the jurisdiction of this Court. The appellant who is the owner of the copyright in the artistic work green label stand pack pouch has one main

branch office at No. 81, Dr. Rangachari Road, Mylapore, Madras and Regional Accounts Office at No. 611/612, Mount Road, Madras. It is also

stated that the applicant''s Madras Offices account for approximately 35% of All India Sales turnover of the applicant. The applicant''s Madras

Branch Office is involved in the sale marketing of coffee, tea and spices in the State of Tamil Nadu, Andhra Pradesh, Karnataka and Kerala and

the Union Territory of Pondicherry. It is on these allegations, leave was sought for from this Court.

In the plaint, it is stated in paragraph 18 that the cause of action in respect of copyright infringement has arisen at Madras within the meaning of

Section 61(2) of the Copyright Act, and, therefore, the plaintiff is entitled to file the suit in this Court which has got the jurisdiction to entertain the

suit.

In the application to revoke the leave (Application No. 814 of 1993) it is stated that no part of the cause of action has arisen within the

jurisdiction of this Court. The defendant is carrying on business in Ongole District of Andhra Pradesh and that the defendant has no branch office

outside Andhra Pradesh within the jurisdiction of this Court. According to the defendant, the plaintiff has offices all over India and has a strong

marketing force and that the plaintiff has invoked Section 62 of the Copyright Act only with a view of harass the defendant, knowing fully well that

the defendant from Ongole, does not possess the infrastructure or resources to defend itself in this Court. According to the defendant, the plaintiff

is abusing the process of law and has invoked Section 62 of the Copyright Act in order to stifle competition by unfair and unethical means. The

defendant would say that the balance of convenience is in favour of the defendant, and that the suit ought to have been filed before the District

Court, Ongole, where the defendant would be better equipped to defend itself. For these reasohs, the defendant has prayed for revocation of the

permission already granted to the plaintiff.

Section 62 of the Copyright Act deals with jurisdiction of courts or matters arising under that Chapter. Chapter 12 deals with civil remedies.

There are two subsections to Section 62. Sub-section (1) says that the suit in respect of the infringement conferred by this Act shall be instituted in

the District Court having jurisdiction. Sub-section (2) is relevant for the purpose of this case. It says that ''notwithstanding anything conlained in the

Code of Civil Procedure, 1908, or any other law for the time being in force, a ""District Court having jurisdiction"" shall include a District Court

within the local limits of whose jurisdiction, at the time of instituting of the suit or other proceeding, the person instituting the suit or other proceeding

or, where there are more than one such person, any of them actually and voluntarily resides or carries on business or personally works for gain''.

The importance of giving a separate definition is also relevant for the purpose of this case. It is an amendment. The amendment itself was

necessitated in view of the difficulties of owners of copyrights in instituting suits in various courts. The reason for the amendment is stated thus:

... The Committee feels that the provisions of the original sub-clause (2) would virtually make registration of copyright compulsory and would be an

undue restriction on the owner of the copyright to exercise his rights. In the opinion of the committee many authors are deterred from instituting

infringement proceedings because the court in which such proceedings are to be instituted is situated at a considerable distance from the place of

their ordinary residence. The committee feels that this impediment should be removed and the new sub-clause (2) accordingly provides that

infringement proceedings may be instituted in District Court within the local limits of whose jurisdiction the person instituting the proceedings

ordinarily resides, carries on business, etc.

Section 2(4) of the CPC defines ""district"" and ""District Court"". While defining the same, it is stated ""District"" means the local limits of the

jurisdiction of a principal civil court of original jurisdiction (hereinafter called a ""District Court"") and includes the local limits of the ordinary original

civil jurisdiction of a High Court.

It is by virtue of this section, clauses 11 and 12 of the Amended Letters Patent provide for the local limits of the original jurisdiction as to suits.

As per clause 12, the High Court of Judicature at Madras, in exercise of its ordinary original civil jurisdiction, shall be empowered, to receive, try,

and determine suits of every description if, in the case of suits for land or other immovable property, such land or property shall be situated or, in

all other cases, if the cause of action shall have arisen, either wholly, or, in case the leave of the court shall have been first obtained, in part, within

the local limits of the ordinary original jurisdiction of the said High Court, or if the defendant at the time of the commencement of the suit shall dwell

or carry on business or personally work for gain, within such limits; except that the said High Court shall not have been such original jurisdiction in

cases falling within the jurisdiction of the Small Cause at Madras, in which the debt or damage, or value of the property used for does not exceed

one hundred rupees''. It is by virtue of clause 12 of the amended Letters Patent, this Court has got original jurisdiction.

The learned Counsel for the defendant contended that even if Section 62 of the Copyright Act enables the plaintiff to institute a suit, that must

be in accordance with clause 12 of the Letters Patent for that is the District Court, and the powers of the District Court are to be exercised by the

High Court. According to him, unless the defendant resides within the jurisdiction of this Court or carries on business within the jurisdiction of this

Court, this Court is not entitled to entertain the suit and the proper Court so far as the this case is concerned is only the District Court, Ongole

(Andhra Pradesh).

A reading of Section 62 of the Copyright Act will make it clear that the provisions of CPC have no application insofar as institution of suits is

concerned and the same has nothing to do with the case of action, or the residence of the defendant. This question came for consideration in the

decision reported in The Daily Calendar Supplying Bureau, Sivakasi Vs. The United Concern, , wherein this Court held thus:

Clauses 11 and 12 of the Letters Patent confers ordinary original civil jurisdiction to the High Court, over the Presidency Town of Madras,

Bombay, etc. Therefore, the area of the Presideay Town will be a District as defined in Section 2(4) of the Civil P.C., 1908 and when the High

Court exercises its original civil jurisdiction over the city limits, it can be deemed to be a District Court, in those cases where resort to the definition

in Section 2(4) of the Civil P.C. is permissible for the purpose of fixing jurisdiction. Section 9 of the Civil P.C. gives power to every Civil Court to

try all suits of a civil nature excepting suits of which their cognizance is either expressly or impliedly barred, and the explanation to that section says

that a suit in which the right to property or to an office is contested is a suit of civil nature. It is well recognised that copyright is property and,

therefore, a suit seeking reliefs for infringement of copyright is a suit of a civil nature. If such infringement occurs, and the cause of action for a suit

based on the infringement arises within the area of the ordinary original civil jurisdiction of the High Court, that court can be deemed to a be a

District Court as per definition in Section 2(4) of the Civil P.C. and will have power to try the suit. In Section 62(2) of the Copyright Act, 1957, a

cross-reference to the Civil P.C. is given which can very well imply that the term ''District Court'' in Section 62(1) of that Act, should be given the

same meaning as in Section 2(4) of the Civil P.C. In Section 62(2) it is stated that ""for the purpose of Sub-section (1), a District Court having

jurisdiction shall notwithstanding anything contained in the Civil P.C. includes a District Court, etc."". This would show that the application of the

definition of a ''District Court'' in the Civil P.C. should be excluded only for the limited purposes mentioned in Section 62 (2), but the definition will

apply in all other respects. u/s 20 of the Civil P.C. it is the place where the defendant resides that gives . jurisdiction to the court. But Section 62

(2) of the Copyright Act alters this principle, and defines the place where the plaintiff resides or carries on business as the place where the suit has

to be filed. It is only for the purpose of making this alteration that Section 62(2) of the Copyright Act uses respects, the Civil P.C. will apply.

The said decision Was followed in the judgment reported in Brooke Bond India Limited v. Balaji Tea (India) Private Limited (1989) 2 M.L.J.

1132 : (1989) 2 L.W. 551, in which the plaintiff herein was the plaintiff (in that suit also) There also, this Court held thus:

The first question is very easily answerable. There is no doubt that this Court has got jurisdiction to entertain this suit in view of the provisos of

Section 62(2) of the Copyright Act. The plaintiff has made an allegation in the plaint its copyright has been infringed by the defendant and a prayer

for injunction restraining the defendant from committing such infringement is made in plaint. Hence, the suit is one falling under Chapter XII of the

Copyright Act, 1957. Section 62(1) of the Act provides that every suit arising under the said Chapter in respect of the infringement of copyright

shall be instituted in the District Court having jurisdiction. Sub-Clause (2) of Section 62 of the Act explains that for the purpose of Sub-section (1),

a ""District Court'' having jurisdiction shall include a District Court within the local limits of whose jurisdiction at the time of the institution of the suit,

the person instituting the suit actually and voluntarily resides or carries on business or personally works for gain. It is not in dispute that the plaintiff

carries on business within the jurisdiction of this Court at the time of the institution of this suit. Insofar as the City of Madras is concerned, this

Court is the District Court having jurisdiction'' within the meaning of "" Section 62(1) of the Act. (Vide: The Daily Calendar Supplying Bureau,

Sivakasi Vs. The United Concern, .

In that judgment, the question of joinder of causes of action also came up for consideration. The learned Judge held that the joinder of causes

of action should not be in contravention of any particular provision of law which could be an abuse of process of Court. The learned Judge held

that the intention behind Section 62(2) of the Copyright Act is to save the wronged person whose copyright has been infringed from the trouble or

inconveninence of going to use the defendant at another place which may very often be a far away place. In that view, the learned Judge held that

joinder of causes of action in that case was not proper and declined the issue against the plaintiff.

That part of the decision was taken in appeal before a Division Bench was taken in appeal before a Division Bench in O.S.A.Nos. 278 and

279 of 1989. The judgment of the Division Bench is a reported in Brooke Bond India Limited v. Balaji Tea (India) Private Limited (1989) 2

M.L.J. 132. The Division Bench, in paragraph 6 of the judgment, held that insofar as the institution of the suit is concerned, the decision of the

learned judge is proper and correct. The Division Bench reversed the decision of the learned Judge regarding joinder of causes of action. The

relevant portion of the Division Bench judgment reads thus:

Learned single Judge has held that the plaintiff/ appellant''s suit alleging infringement of copyright is maintainable in this Court. He has referred to

Section 62(1) of the Copyright Act and Sub-section (2) thereof which explains that for the purpose of Sub-section (1) a ""district court having

jurisdiction"" shall include a District Court within the local limits of the institution of the suit, the person instituting the suit actually and voluntarily

reside"" or carries on business or personally works for gain and said,

It is not in dispute that the plaintiff carries on business within the jurisdiction of this Court at the time of the institution of this suit and insofar as the

City of Madras is concerned, this Court is the ""District Court having jurisdiction"" within the meaning of Section 62(1) of the-Act.""..."" In view of

these binding decisions of this Court, it cannot be said that this Court has no jurisdiction in view of Section 62 of the Copyright Act.

The learned Counsel then submitted that the High Court is exercising the power only under Letters Patent and that cannot be treated as law.

According to the learned Counsel, the Letters Patent is only is charter. For the said purpose, he relied on Section 100-A of the Civil Procedure

Code. Section 100-A, C.P.C. deals with appeals from second appeals. It says: ""notwithstanding anything contained in any Letters Patent for any

High Court or in any other instrument having the force of law or in any other law for the time being in force, where any appeal from an appellate

decree or order is heard and decided by a single Judge of a High Court, no further appeal shall lie from the judgment, decision or order of such

single Judge in such appeal or from any decree passed in such appeal"". The learned Counsel stated that when words ""any other instrument having

the force of law or in any other law for the time being in force"" are already there, a specific mention of Letters Patent in that Section makes it clear

that since it is not a law, but only a chapter, Letters Patent cannot be treated as having the force of law.

According to me, the said contention of the learned Counsel has no force.

''Letters Patent'' was all along treated as law, but its application was limited only to Chartered High Courts. That is why the words ''or in any

other instrument having the force of law'' are reiterated. Even if we consider the Letters Patent as the instrument not a law or it has the force of law.

Again, the said contention of the learned Counsel for the defendant cannot have any force view of decided cases.

In Chunilal Basu and Another Vs. The Hon''ble Chief Justice of the High Court at Calcutta and Others, , this point was dealt with (in paragraph

30). The Calcutta High Court held that Letters Patent is the law in force, and it comes within the definition of ''existing central law'' and the same

has the force of law. Paragraphs 30 and 31 of the judgment read thus:

Next Mr. John placed before me the definition of ""Indian Law"" as defined in Sub-section (29) of Section 3 of the General Clauses Act (Act X of

1897). It runs thus:

Indian Law shall mean any Act, Ordinance, Regulation, Rule, Order, by-law or other Instrument, which before the commencement of the.

Constitution, had the force of law in any province of India or part thereof or thereafter had the force of law in any Part A State of Part C.

State or part thereof but does not include any Act of Parliament of United Kingdom or any Order in Council, rule or other instrument made under

such Act.

Mr. John has submitted from the above definition that as the Letters Patent was promulgated under the provisions of the Act of Parliament it should

never be considered to be a part and parcel of the Indian Law and that is should have no application in any part of India after the promulgation of

the Constitution. From the above Mr. John has submitted that the Letters Patent should be deemed to have come to an end.

Mr. Deb, learned Counsel for the respondent No. 4 on the other hand, has disputed the said contention and asserted that the Letters Patent cannot

be said to have come to an end. According to Mr. Deb those provisions are still in force. Mr. Deb has drawn the attention of the Court to Chapter

V of the Part VI of the Constitution of India. Article 214 to Article 231 of the Constitution relate to the establishment and Constitution of the High

Court as well as appointment of High Court Judges and some other provisions concerning High Court. The relevant Article for our consideration is

Article 225 of the Constitution. The said Article reads ""subjects to the provisions of this law of the appropriate legislature made by virtue of

powers conferred on that legislature by this Constitution, the jurisdiction of and the law administered in any existing High Court, and the respective

powers of the Judges thereof in relation to the administration of justice in the Court including any power to make rules of court and to regulate the

sittings of the court and of members thereof sitting alone or in Division Courts, shall be the same as immediately before the commencement of this

Constitution"". Article 372(l) may also be referred to in this connection. It provides:

Notwithstanding the repeal by this Constitution of the enactment referred to in Article 395 but subject to the other provisions of this Constitution all

the law in force in the territory of India immediately before the commencement of this Constitution shall continue in force therein until altered or

repealed or amended by competent legislature or other authority.

Mr. Deb has submitted that the underlined portions of the Articles referred are relevant for the determination of the point at issue. The Letters

Patent, being the law in force and the law administered on the appointed day, should be taken as continuing as law of the land. In answer to the

contention of Mr. John regarding the implication of the ""existing Central Laws Mr. Deb, on the other hand, contended that we should ""not import,

the words ""existing Central Laws"" in those Articles (Articles. 225 and 372) to give some meaning to the same when those words are excluded and

the words ""laws in force"" and Law administered"" have been used. I also agree with the said contentions of Dr. Deb and hold that the Letters

Patent, 1865 being the law in force and also being the law administered, the same were not affected.

As such the said contention of Mr. John fails.

In The Edward Mills Co. Ltd., Beawar and Others Vs. The State of Ajmer and Another, the question that came up for consideration was,

what the meaning of ''law in force'' under Article 372 of the Constitution of India. Relevant portions of paragraphs 13 and 14 of the said decision

are complete answer for the contention of the defendant.

Thus Clause (1) of the article provides for continuance, in force, of the existing laws notwithstanding the repeal by the Constitution of the enactment

mentioned in Article 395 and Clause (2) provides for their adaptation with a view to bring them into accord with the provisions of the Constitution.

The Government of India Act, 1935 undoubtedly stands repealed by Article 395 of the Constitution but laws made thereunder which were in

existence immediately before the commencement of the Constitution, would continue under Article 372( 1) and could be adapted under the second

clause of that article.

Mr. Chatterjee argues that Article 372 has no application to the present case inasmuch as the order made by the Central Government u/s 94(3) of

the Government of India Act could not be regarded as ''a law in force'' within the meaning of Article 372. A distinction is sought to be made by the

learned Counsel between an ""existing law"" as defined in Article 366(10) and a ''law in force'' and it is argued that though an ''order'' can come

within the definition of ""existing law"", it cannot be included within the expression ''law in force'' as used in Article 372. It is argued next that even if

the word ''law'' is wide enough to include an order, that order must be a legislative and not a mere executive order promulgated by an

administrative authority, and in support of his contention the learned Counsel has relied on a number of cases decided by the Privy Council and the

different High Courts in India.

The first point does not impress us much and we do not think that there is any material difference between ""an existing law"" and ""a law in force"".

Quite apart from Article 366(10) of the Constitution, the expression ""Indian Law"" has itself been defined in Section 3(29) of the General Clauses

Act as meaning any Act, ordinance, regulation, rule, order, or by-law which before the commencement of the Constitution bad the (sic) opinion,

the words ""law in force"" as used in Article 372 are wide enough to include not merely a legislative enactment but also any regulation or order which

has the force of law...........

In view of Section 120 of the Civil Procedure Code, Section 20 of the CPC has no application to the facts of this case. Section 62 of the

Copyright Act being a special enactment so far as the copyright infringements are concerned, that has to prevail, and the place where the plaintiff

resides or carries on business or works for gain, is the court which has jurisdiction to entertain the suit.

In view of this finding, the application by the defendant to revoke the leave already granted by this Court, is dismissed. No costs.