ORDER
1. Heard the learned counsel for both sides.
2. In view of nature of the controversy generated and comparatively deeper arguments having been canvassed on behalf of both sides, it is deemed necessary and proper to record a speaking order even at this threshold of the admission stage so as to understand the thrust of the controversy.
3. The learned trial Judge has answered the preliminary issue and though this conclusion is correct still he has recorded comparatively short order without referring to necessary details including the basic aspect about the recitals of the plaint and nature of the suit and this feature has created a situation requiring this Court to go into the details and in fact the matter was argued by both sides as if at the final hearing stage citing several authorities and therefore instead of admitting and then disposing of the matter, it is examined at this stage itself, which has inevitably resulted in recording a detailed order on par with the one recorded at the final hearing.
4. 'Yeh Jo Hai Jindagi' is the title of popular T.V. Serial which was displayed on the National Net-work and which projects assorted events in life of a family, has landed itself in the whirlpool of this litigation so that even the producers and owners thereof have the taste of this reality of life.
5. The Plaintiffs who are respondents herein, are a partnership firm in the field of manufacturing Ayurvedic Pharmaceutical Products which are sold under the brand name of 'Vicco' and claim to have acquired substantial reputation in the market. The first petitioner who are original first defendant are an advertising agency and have been the advertising agents in respect of the product manufactured by the Plaintiffs concern. The second petitioner is the Director and, or Partner of the first petitioner while third is the Proprietary concern of the first petitioner and 4th defendant which is dealing in promoting advertising and marketing, is also a proprietary concern. The fifth petitioner are 3 Union of India and they have been impleaded essentially as being the authority conducting the T.V. Programme popularly known as 'Doordarshan'. The Plaintiffs have employed the first four petitioners-defendants as their advertising agents through their sister concern M/s. Modern Advertising Agency and Eta Advertising Agency. Deriving inspi-ration from some popular series displayed on Doordarshan Network, the Plaintiffs desired to have a similar project may be with a further desire to promote the sale of their products through such an advertisement, though according to them, they have been in that field 'of advertising their product prior thereto on 'Doordarshan. With this object, negotiations were carried between the parties and ultimately an agreement was entered into under which the first petitioners were to act as their agents for the purpose of producing the serial known as 'Yeh Jo Hai Jindagi' and which would be displayed as Plaintiffs' sponsored programme. The Plaintiffs in turn agreed to pay the entire cost of the said production to the said agency. Under the same, fourth defendant had agreed to act as agent and to prepare the said serial the cost of which was to be borne by the producer and said serial consisted of different episodes, each episode having duration of about 30 to 45 minutes. thus the Plaintiffs claimed to be the owners of the said production while the defendants acted as agents of the Plaintiffs for valuable consideration and exclusively on behalf of the Plaintiffs, who undertook the liability of finance as also the risk. On that count the Plaintiffs claimed to be the owners of the said 'project and serial of the sponsored pro-gramme. In due course of time about 60 epicodes were produced and displayed on the Network under which the Plaintiffs had spent a substantial amount and also for the purpose of advertising the programme. The Plaintiffs thus possess the entire serial rights including exclusive rights to use of the title. Each of the said episodes is to be punctuated by short advertisement of the Plaintiffs' product. The petitioners recovered the cost of production from the plaintiffs. The Plaintiffs also entered into an agreement as owners and producer regarding assiging of the video rights in favour of M/s. Esquire Distributing and Servicing Private Limited.
6. After certain episodes were fully prepared and displayed during which period everything sailed smoothly, a dispute crrupt-ed between the parties when the petitioners threatened that since the project was financially not viable they were inclined to produce the further episodes for another sponsor viz.. Brooke Bond Company. Though it was indicated that the same title w as to be utilised in the new advertisement also the details as to how this dispute gained more sharpness, by passage of time need not be elaborated. There ensued correspondence and exchanged, between the parties reflecting the nature of the dispute. On this pattern when the Plaintiffs have all along contested the stance adopted by the petitioners maintaining that they are the owners and producers and title and serial very much belong to them which cannot be used by the petitioners for any other sponsoring concern. As stated, for about 62 episodes, full costs were paid by the Plaintiffs before the dispute assumed any dimension. It was further indicated that the same name of serial w as very much associated with the Plaintiffs' Ayurvedic laboratory and the Plaintiffs also indicated that if at all the petitioners desire to produce the serial for other concern they will have to do it under different name since the title very much belonged to the plaintiffs,
7. The Plaintiffs further claimed that the petitioners were not likely to be deterred by this protest and there was eminent danger of the first three petitioners producing further episode of the said serial making use of the same format as using the same title on behalf of the third party viz., Brooke Bond Company. It is on account of this apprehension and stance adopted by the petitioners in going ahead with that project that the Plaintiffs ultimately were obliged to file the suit in the City Civil Court in the year 198.6 for a declaration that the title and the format of the said serial exclusively belonged to them and the petitioners-defendants have no concern whatsoever and will have no right to produce or exploit the said serial to another third party under the same title. Consequential reliefs were claimed in the shape of injunction restraining the petitioners from any manner making the serial under the same title or any episode belonging to the Plaintiff to be displayed which is already made or in respect of all episodes which are to be produced in future.
8. On the same pattern Notice of Motion was taken out for the interim injunction. The petitioners contested the said on merits on all counts including the basic contention about the lack of pecuniary jurisdiction of the City Civil Court, non-joinder of necessary parties etc. as also about the correct nature of the transaction between the parties inter alia con-lending that there would be no prohibition for them to produce the serial under the same title and same format for any other concern. They denied that they were merely agents of the Plaintiffs in that field.
9. The learned trial Judge was pleased to grant ad-interim injunction though in the limited field and not relating to the episodes which were to be produced. That order was challenged by the petitioners in this Court when ultimately the met with no success though in the meanwhile by way of interim arangement and by way of certain terms without prejudice to the merits couple of episodes were allowed to be produced though the plaintiffs not giving up their rights over the title. At that time this Court had directed that the suit should be heard expeditiously and in fact the time was extended on all these occasions and ultimately it was scheduled to be disposed of by 31st August, 1989.
10. It is thereafter that when the suit was ripe for hearing as by that time all the formalities were complete and the petitioners had already filed written statement, a preliminary objection was taken to the maintainability of the suit on the ground of pecuniary jurisdiction of the City Civil Court when it was contended that claim of the plaintiffs that they paid towards the costs of these episodes roughly above Rs. 1,60,000/- and as such the claim sought to be levelled in the suit can be valued in terms of money and if that be so then it would obviously be beyond jurisdiction of City Civil Court being for more than Rs. 50.000/-. The learned trial Judge was therefore, asked to deal with that objection as a preliminary issue. The learned Judge was hesitant to treat it as preliminary issue for certain reason as according to him it was not proper exercise and same can be heard at hearing. However, as a safer course he considered it and the same was treated as preliminary issue. Some contentions were canvassed and ultimately the learned trial Judge negatived the contention raised on behalf of this petitioner holding that the City Civil Court has pecuniary jurisdiction, to try the suit. It is this order dated 13th July. 1989 that is being -placed under challenge in this petition.
11. Shri Bhabha. the learned counsel for the petitioners canvassed some of the points which were discussed on the lower forum but added some more points to bolster his case and all of which are countered by Shri Andhyarujina. the learned counsel, appearing on behalf of the respondent-plaintiffs. In substance Shri Bhaba. the learned counsel, contended that by reason of eloquent circumstance that each episode costs a particular amount and each episode was capable of any profit and loss and if the plaintiffs themselves value their suit for that amount, which they have paid to the defendants then in effect they are basing their suit on monetary calculation and on that basis the same would obviously exceed the jurisdiction of City Civil-Court for more than Rs. 50.000 -. If that be so contends the learned counsel, then the suit would fall entirely within the provisions of Section 6(iv)(b) of the Bombay Court-fees Act read with An. 7 of the said Act. He further contended quite strenuously that the real nature of the suit relates to the violation of Copy Rights which is evidenced from some of the recitals in the correspondence and the plaint itself which refers to assignment of Video rights and payment of royalty and if that be so then irrespective of pecuniary claim it would be only this Court that would have jurisdiction to try the suit under the Copyright Act and this would, therefore, be an additional ground for ousting the jurisdiction of the City Civil Court. He for that purpose endeavoured to rely on certain passages in the plaint. All these contentions are countered by Shri Andhyarujina. the learned counsel for the respondent, whose main thrust is that the real frame of the suit makes it abundantly clear that it is out and out suit for declaration regarding ownership over title and format of the serial and plaint asked for nothing more and it has nothing to do with the alleged infringement of copy right nor has it anything to do with any claim of monetary nature wahtsoever. He submitted that the provisions of Copy Rights Act, therefore, have no application at all and therefore, there is no question of the suit heng filed only in this Court. He further contended that the suit would squarely fall within the purview of the provisions of Section 6(iv)(j) of the Bombay Court Fees Act. He also correspondingly sought to place reliance on certain recitals of the plaint and the correspondence. Thus both the parties endeavoured to reply essentially on the plaint.
12. Section 6 of the Bombay Court-fees Act. 1959 falls in Chapter 11! relating to the computation of fees payable in certain suits. Clause (iv) of this section is sub-divided into certain sub-clauses. Sub-clause (b) prescribes that in the suits for declaration similar to those falling under sub-paragraph (a) in respect of moveable properly one-fourth of ad valorem fee leviable on the value of the moveable property subject to certain events. Sub-clause (j) which prominently falls in the field of the controversy has its own relevance and it prescribes Court-fees in respect of suit where declaration is sought, with or without injunction or other consequential reliefs and the subject matter in dispute is not susceptible of monetary evaluation and which are not otherwise provided for by this Act and in respect of such suit Court-fee would be ad valorem payable as if the amount or value of the subject matter was Rs. 300/. Provision falling in Article 7 of Schedule I which is in the form of residuary provision is also placed in the field of debate which prescribes that any plaint, application or petition to obtain substantive relief capable of being valued in terms of monetary gain or prevention of monetary loss including case wherein application or petition is either treated as a plaint or is described as the mode of obtaining the relief as aforesaid in which event a fee on the amount of the monetary gain or loss to be prevented, according to the scale prescribed under Article I is payable.
13. Thus a cursory analysis of these three provisions would make it clear that in so far as Article 7 of Schedule 1 is concerned, it is residuary provision dealing with plaint, application or petition which are not covered by any other provisions and which are also capable of evaluing monetary gain or prevention of monetary loss and that no doubt forms the foundation of this residuary article. As regards substantive clause under Section 6(iv)(b) though it relates to declaratory suit still in respect of movable property its value comes on the forefront for calculating Court-fee to be fixed or paid, meaning thereby that the said property also should be capable of being calculated on monetary basis and declaration should be on that basis. In contrast thereto sub-clause (iv)(j) stands on an entirely different footing and by itself embracing within its fold such suits for declaration which may or may not be also for consequential relief of injunction but should be such that the subject-matter in dispute under that declaratory suit is not susceptible of monetary evaluation. A second qualification is that 'it is not otherwise provided for by this Act' in which event the fixed Court-fee is to be paid on the basis as if the value of the subject-matter is only Rs. 300/-, which has been treated as a notional value.
14. The question posed is as to whether present suit falls under the provisions of Section 6(iv)(b) read with Article 7 of Schedule I as contended by the petitioners-defendants or whether it is squarely covered by the provisions of Section 6(iv)(j) of the said Act and the corresponding question that it gets posed out of this question is as to whether the declaration sought for is capable of being valued or is not susceptible of monetary evaluation in that field.
15. It is well recognized and settled that for the purpose of determination of this crucial aspect, it is the recital in the plaint that would be foremost consideration for construction where the defence and other aspect would pale in the background. Consequently, therefore, it would be necessary in the context of this background to examine the frame of the suit though in that respect also a detailed discussion is not necessary as in my opinion, even a few recitals, prominent amongst those in cause of action and the reliefs sought for, are enough to resolve the controversy. It may be incidentally observed that whole tenor of the plaint is to be taken into account without concentrating on any stray recitals therein and consequently, it is the foundation or pivot of any plaint that should be examined in the search to find out the real nature of the suit and relief claimed and onCe that clue is discovered then incidental reference to other aspect in the plaint would become inconsequential. It is contended that there is reference in the plaint itself to some features which even by themselves suggest that the claim in the suit is capable of being valued in money. Thus for instance, Sri Bhabha, the learned counsel suggest that it is mentioned in the plaint that 60 episodes are produced by the petitioners and by December 27, 1985 the plaintiffs have paid Rs. 1.60,000/- being the cost of 60th episode, indicating thereby that each episode as a specified amount involved therein either as cost of production as also corresponding amount of gain or likelihood of loss. The defendants by their letter dated 27th December, 1985 indicated to the plaintiffs that they were losing about 55 to 75 thousand rupees per episode and that is why they were in search of new sponsor. This is to some extent reflected in correspondence exchanged between the parties, a detailed reference to which need not detain us. though the defendants have annexed certain chart to their written statement as Exhibit 1 indicating total cost of 60 episodes paid by the plaintiffs along with cost of telecasting, commercial advertisement etc. as according to them the total cost of production for 60 episodes paid by the plaintiffs was to the tune of Rs. 76.50.000/-. These illustrations need not be multiplied because those would take one to entirely wrong track whereas the rational basis lies sometimes also. Shri Bhabha, the learned counsel also contended that there is some indication relating to the provisions of Copyright Act in the plaint itself. Thus for instance, the plaintiffs themselves have stated that they have entered into an agreement with M/s. Esquire Distributing and Servicing Private Limited agreeing assignment of Video which agreement was executed sometime on Janu-ary 1. 1985 and Plaintiffs have further indicated that though they were not bound still as an ex-gratia payment to defendants Nos. 1 and 4 of a portion of royalty received by them from M/s. Esquire Enterprises certain amounts were paid to Defendants. Thus it is indicated that these and other recitals as reflected in correspondence which need not be elaborated relate to existence of copy rights and infringement thereof. It also indicates that Master Casettes are retained by the petitioners and some amounts by way of royalty have been paid consistently though for a short period and it is stated that copy rights in respect of said field would vest in the defendants and not in the plaintiff which in turn suggests that the petitioners-defendanls are owners of the copyrights and the dispute really touches this foundation of copyrights.
For obvious reasons it is difficult to subscribe to this view the falacy of which can be exposed by mere reading of the plaint as a whole and as stated at the outset the real frame of the plaint becomes more germane in the wake of the controversy whereas stray reference to other aspects has got to be restricted only incidentally and not affecting in any manner muchless even creating dent to the basic frame of the suit. Shri Andhyaru-jina, the learned counsel, in that behalf is fully justified and a short resume of the recitals of the plaint would highlight that aspect.
16. Thus after referring to capacity of the respective parties it has been mentioned that the Plaintiffs wanted to make use of this advertising media through the agency of the first defendant, who was of course for that purpose, to act as plaintiffs' agent for the purpose of producing serial in question which would be displayed as plaintiffs' sponsored programme in respect of which the plaintiffs agreed to pay the entire cost of production to the said advertising agency, who were to do all such work and it is on that basis that the agreement was struck between the plaintiffs and defendants and the defendants under the said agreement, were to act as agents for the said serial and it is in that capacity as agents that production went into full swing and the defendants were to get their dues and consideration from the plaintiffs, who were to bear the entire cost of production and thus had undertaken financial liability as also risk, his specifically and repeatedly incorporated in the. plaint in unequiocal terms that the plaintiffs are 'owners' of the aid serial and have 'exclusive and unencumbered effective rights for the said serial' and in the title thereof. It is further mentioned that the plaintiffs say that 'entire serial rights including exclusive rights to the use of title thereof belong to the plaintiffs'. The further recitals read as:
'Plaintiffs say that they are the real producers and owners of the serial.'
It is then indicated that on account of popularity that was gained by them the number of episodes has increased and thus correspondingly the plaintiffs had to incur the production cost for all the episodes. It is relevant to note that no sooner that the first defendant informed the plaintiffs a reply was sent by them that in the title of 27th and 28th episode it has been stated by the said defendant that it is presented by Oberoi Films and protest in that behalf was immediately recorded by the plaintiffs making it further older that 'programmes were exclusively for the plaintiffs and first and second defendants were preparing the serial as job work financed by the plaintiffs'. The letter in that behalf is on record. Similarly as soon as the defendants ultimateh informed the plaintiffs by their letter dated 27th December, 1985 making a grievance that in each of the said episodes they are losing an amount of Rs. 60 to 75 thousand and that is why they made no secret of being in search of new sponsor. Promptly came the reply from the plaintiffs that it was not possible to increase the tost of product ion for the episode and even suggested that if they so desire the production may be stopped, though however, it is clearly indicated that 'that the serial is associated with Vicco laboratories and that if the defendants wanted to take another sponsor they can introduce new serial under different name', though the claim of being the owners of title and Serial thereof has been reiterated in all the correspondence very promptly and the moment there was likelihood of any dent to this right of the plaintiffs as reflected through the correspondence of the defendants, the plain-tifts were diligent enough to register the protest immediately reiterating and maintaining their claim of ownership over the serial as also ownership over the title and format and at no time they ever indicated that they were concerned or interested in the issue of copy right or any monetary claim. This must have its own relevance and significance.
17. The cause of action has been boldly reflected in paragraph 9 with necessary details. Some of the necessarv recitals deserve to be reproduced verbatim giving clear and well defined dimensions to the frame of the suit. The plaintiffs thus stated as:--
'The plaintiffs understand that the 1st and 2nd defendants and the 3rd defendants are intending to produce further episodes under the title 'Yeh Jo Hai Jindagi' making use of the same format as earlier serial for and on behalf of the third party. The plaintiffs say and submit that the right, title and interest both in the title and the said serial belong to them exclusively and that the said serial and the said title has been produced in the course of the employment made for valuable consideration by the plaintiffs of the defendants Nos. 1. 2, 3 and 4. The entire finances have been spent and or met with by the plaintiffs. The plaintiffs have spent large sums of money to popularise the said title 'Yeh Jo Hai Jindagi' and the said title is very much associated with the plaintiffs and their products. In the circumstances, the plaintiffs say that the plaintiffs are entitled to a declaration that the plaintiffs are exclusively entitled to the use of the said title and the format and the musical score of the serial 'Yeh Jo Hai Jindagi' and the defendants are not entitled to produce the said serial for any other third party other than the plaintiffs. The plaintiffs have no objection if any serial under any other name is produced by defendants Nos. 1 to 4 but the defendants Nos. 1 to 4 cannot make use of the said title 'Yeh Jo Hai Jindagi'. In the circumstances the plaintiffs are entitled to a permanent injunction against the defendants restraining them from making use of the said title 'Yeh Jo Hai Jindagi' or any episode belonging 10 the plaintiffs or any episode hereafter made under the title 'Yeh Jo Hai Jindagi'.
All these recitals as incorporated in paragraph 9 formulating cause of action, in my opinion, very strongly disclose the real clue to the whole controversy, which completely topples arguments advanced on behalf of the petitioners. It makes very clear that the plaintiffs have repeatedly referred to the right of being owners of the serial as also of the title and format and they have every right to retain the same with them and, therefore, any threat or injury to that right at the hands of the petitioners is being protested. Significantly they have made it clear that they have no objection if the defendants want to produce different serial under different title for the third party and this again reiterates their claim over the title, format and serial.
18. In paragraph 12 of the plaint it has been specifically mentioned as: -
'The plaintiffs submit that the reliefs in the suit are not capable of monetary valuation and have therefore, valued the same at Rs.300/- and have paid court-fee accordingly.'
19. The last in the chronology lies paragraph 13 of the plaint, which contains the reliefs claimed and it is better if those are also quoted verbatim. Those are as:- -
'The plaintiffs, therefore, pray
(a) that it be declared by this Hon'ble Court that the plaintiffs are exclusively entitled to the use of the title and the formal of the serial 'Yeh Jo Hai Jindagi' and the deiendants are not entitled to produce and/or exploit the said serial for any other third party than the plaintiffs or permit any other party to use the episodes already produced by the plaintiffs for any purpose whatsoever.
(b) that the defendants be restrained by a permanent order and injunction of this Hon'ble Court from in any manner making use of the title of the serial or the format of 'Yell Jo Hai Jindagi' or any episode belonging to the plaintiffs or any episode hereafter made under the title 'Yeh Jo Hai Jindagi'.
(c) for interim and ad interim relief in terms of prayer (b) above.
(d)for costs.
(e) for such further and other reliefs as the nature and circumstances of the case may require.'
Even a cursory reading of these reliefs which are in complete tune with the recitals including the cause of action which are also in consonance with the correspondence exchanged between the parties make it abundantly clear that the plaintiffs have been maintaining all throughout and also have claimed some reliefs that they are exclusively entitled to use of title and format of this particular serial and counter-part of the declaration is that the defendants are not entitled to produce or exploit said serial for any third parly other than the plaintiffs and it is further strongly indicated that the defendants would not be entitled to make use of the said title or format of the said serial or any episode belonging to the plaintiff and any episode hereafter made by the defendants under the name 'Yeh Jo Hai Jindagi'.
20. This would again be a pointer about the persistent claim made by the plaintiff over the claim of ownership of serial, title and format and this relates not only to the serial already produced but also to any part of the episode so far produced and what is of more significance is that it also covers under its fold even the future episodes which would be produced under the same title 'Yeh Jo Hai Jindagi'. Thus all the episodes in the past which are already in existence and those which are likely to come in existence in future are taken within this declaration that is sought for though the foundation for declaration in respect of those episodes remains the same viz., being the claim over the serial, title and format etc.
21. It is in that behalf worth noting a very important basic facture which has been rightly relied upon by Shri Andhyarujina, the learned counsel for the respondents-plaintiffs. Significantly, none of the following items are asked for in the suit viz., return of the Master cassette, copy-rights, cassettes themselves or damages, nor any monetary claim is even remotely levelled in the suit. This must have necessary impact while construing the real frame of the suit which very much follows in consonance with the construction sought to be placed by Shri Andhyarujina, the learned counsel for the plaintiffs and runs counter to the one as suggested on behalf of the petitioners. Significantly, if one reads the plaint as a whole substantial part of which has been already referred to and that substantial part is mainly relevant part, then it would become manifest that there is no question of copy right by any yardstick arid, therefore, any reference to Annexture 'A' really speaking is inconsequential. On the contrary the very basis of the suit and the grievance relates to 'threat of injury to the title'. It also becomes manifest from the recitals of the plaint as also through the correspondence that the real dispute and fight between the parties is not over video rights at all but it restricts exclusively to the T.V. Serial sponsored by the plaintiffs. This is reflected even in the letter written by the third respondent to the plaintiff on December 27, 1985 wherein he made a grievance about certain loss that is to be incurred in which he has exclusively restricted to the dispute to the T. V. Serial and not to the Video rights and reply of the plaintiffs to this letter on 2nd January, 1986 makes that position further confirmed. The said pattern is followed and reflected through the other correspondence and therefore, multiplication can be avoided. As stated, the real nature of the suit has nothing to do with the copy rights but it is the dispute out and out to meet the prospective threat to the title for which declaration is sought for, whereas the other relief in the shape of injunction is only by way of consequential relief, which is permitted to be annexed to the main relief- of declaration and if that be so then inescapable conclusion is that the frame of the suit would squarely fall only within the purview of provisions contained in S. 6(iv)(j) of the Act and has no application whatsoever regarding the provisions contained in S. 6(iv)(b) or 6(iv)(a) as also Art. 7 of Sch. I. In effect all the requirements of S. 6(iv)(j) are squarely satisfitd viz., the declaration is sought for, it is accompanied by consequential relief of injunction and as stated, the dispute is not susceptible to monetary evaluation and lastly it is not otherwise provided for by this Act, The entire prescription therefore, co-exists. As discussed earlier, the declaration and the subject-matter is obviously not susceptible to any monetary evaluation and any reference to the cost of these episodes has got to be read in proper context and to say that it gives clues about monetary evaluation as plaintiffs can claim those amount is really begging the issue and putting the same on an entirely wrong track. As stated, the declaration governs even the future-episodes which may be produced in respect of which also the plaintiffs are very much entitled to retain their rights over the serial itself, over the title as also the format and maintain that they are the owners and producers not only of the episodes which are already produced but would continue to be so in respect of the episodes that may be produced in future. That line of attack asking for declaration is quite consistent and admits of no other inference. As stated, the real answer about the applicability of the relevant provisions of Court-fees Act must be found on the recitals of the plaint and reading of the recitals of the plaint must contain an exercise to find out the real nature of the claim and not to be influenced or unduly guided by stray reference to other aspects or features which sometimes ostensibly may appear to be relevant but in reality those are not.
22. Shri Bhabha, the, learned, counsel, wanted to place reliance on the judgment recorded by the trial Court on 23rd February, 1986 while granting ad interim injunction though restricting only to the limited prayer under which the defendants were retrained from making use of title and format of the serial or making any episode under that. Reliance was sought to be placed on this judgment for the purpose of supporting their claim on behalf of the petitioners that therein there is a mention about copy right and infringement thereof and according, to Shri Bhabha, the learned counsel, that indicates as to how the parties understood the nature of the suit. I am afraid, on going through, the entire judgment that does not appear to be so and even otherwise when the matter has now been decided a fresh assessment is permissible and fresh assessment has been made on the rational basis as prescribed under the law regarding recitals in the plaint, frame of the suit and for the reasons already discussed if that is taken into account in proper perspective then it would be a misnomer to style the suit as one based on infringement of copy rights.
23. Shri Anhyarujina, the learned counsel, has also relied on yet another circumstance, viz. the admission given by the defendant in the affidavit filed with reference to the said ad interim injunction notice wherein they admitted in terms that the valuation made by the plaintiff regarding the suit is proper meaning thereby that at that time they did not even whisper about the lack of pecuniary jurisdiction but on the contrary have expressly accepted the jurisdiction of City Civil Court on the basis of the plaint as it stood. At least to a limited extent this would have its own relevance though I may hasten to add that the decision at this stage is not based exclusively on that admission.
24. Reliance was placed by both the sides on the ratios available in that field. In view of the discussion on facts which is in reality the basic foundation, various ratios may pale in the background. However, in deference to parties, reference to only a few can be made which reference would on the contrary re-enforce the contentions canvassed by Shri Anhyarujina, the learned counsel for the plaintiffs and thereby the conclusion that has been reached in this proceeding.
25. Shri Bhabha, the learned counsel, no doubt submitted that the suit would fall within the purview of Copyright Act and sought to place reliance on S. 21 of the said Act which prescribes that the rights cannot be relinguished without notice and no such notice has been given. He also sought to place reliance on the provisions of S. 62 of the Act regarding jurisdiction of the Court over the matters arising under that chapter. It relates to civil remedies under Chapter XII and prescribes that every suit or other civil proceeding under this chapter in respect of infringement of copy rights shall be instituted in the District Court having jurisdiction and expanding that definition it is submitted that in this metropolis it can lie only in this Court. He also relied on the provisions of S. 105 of the Trade and Merchandise Marks Act, 1938 making similar provision for such suit for infringement of registered trade marks etc. shall be filed in the District Court having jurisdiction.
26. The learned counsel, therefore, submitted that the suit can be filed in this Court only and for that purpose he sought to extract support from the decision of the Division Bench of this Court in Mohan Meeken Limited v. Pravaea Sahakari Sakhar Karkhana Ltd. : (1987)89BOMLR356 which has reference to S. 105 of Trade and Merchandise Marks Act and in that context authority of the District Court has been construed and suggested thereby that the suit must lie on the original side of this Court. There is also reference to the provisions of Maharashtra Co-operative Societies. Act with reference to jurisdiction and other aspects. In my opinion, since I have held on facts without any reservation that the real frame of the suit has not even ostensible nexus with the infringement of copy-right or trade or merchandise marks, the question of instituting the suit on the original side of this Court does not survive at all.
27. The learned counsel then placed reliance on the ratio of the judgment of the learned single Judge in Mohan Meekin Breweries Ltd. v. Oceanic Imports and Ex-ports Corporation 1980 MLJ 803 in support of his claim that the provisions of S. 6(iv)(b) read with Art. 7 of Sch. I of Born-bay Court-fees Act would be applicable in the instant case. However, the facts in the said case are obviously distinguishable and it is on those facts that those provisions have been made applicable and the non-applicability of S. 6(iv)(j) on those facts have been emphasised. Therein the plaintiffs had agreed to deliver goods to defendant No. 2 and defendant No. 2 paid certain amount to the plaintiff. The plaintiff through their Bankers executed bank guarantee as security. On the plaintiffs failure to supply goods defendant No. 2, demanded the amount from the Bankers whereupon the plaintiff sued for declaration that defendant No. 2 had no right to demand the payment and correspondingly defendant No. 1 Bankers had no right to make the payment and consequential relief of injunction was sought for. The amount was specific which was for unpaid amount for sale of goods and there was no vagueness and bank guarantee was there for security. It is on those facts the learned single Judge held that the plaintiff in turn wanted to prevent loss of that particular amount and therefore, suit was capable of being valued in terms of money and therefore, provisions of Section 6(iv)(j) could not apply. This ratio also would not be applicable to the facts of the instant case.
28. In Jafferalli Allibhai v. S.R. Dossa & Co., : AIR1969Bom66 , the learned single Judge of this Court had also an occasion to consider the provisions of Art. 7 of schedule I and Section 6(iv)(j) of the Court-fees Act. Therein the creditors filed suit under Section 63 of the Transfer of Properly Act peeking declaration that D.eed of Assignment executed by the defendant is void against the plaintiff when it was observed by the learned single Judge taking resume of several cases in that field that the subject-matter of the suit as framed is not the property comprised in the Deed of assignment which was sought to be set aside, but it is the relief by way of declaration itself viz., declaration that the Deed of assignment was void as against the plaintiff and on that interpretation it was held that the same is not susceptible to monetary evaluation and therefore, would be governed squarely by Section 6(iv)(j) of the Court-fees Act. It was also observed that such a suit is also not the one which is otherwise provided for by the Court-Fees Act and since the suit falls squarely under Section 6(iv)(j) of the Act, residuary clause under Article 7 of Schedule I of the Act would not be attracted. All the alternate aspects have been considered by the learned single Judge including one of the claim of different creditors and specified amount and it is thereafter that it has been held while answering the question as to whether the suit can be said to be for the property comprised in the Deed of Assignment, and ultimately held that it is not so as is apparent from the prayer clause when it is for only declaration that the said Deed of Assignment is void as against the plaintiff and it is further indicated that even if the plaintiff had succeeded in that suit he could not get that property or any pan thereof. The learned single Judge took note of several decisions available in that field and he emphasised that the relief claimed in the suit is more relevant . and the relief restricted to a declaration that the said Deed of Assignment is void and therefore, the property comprised under it obviously pale in the background. This ratio is rightly relied upon by Shri Andhyarujina, the learned counsel for the respondents.
29. There is yet another decision having relevance in this field, of the learned single Judge of Gujarat High Court in Inderlal Panwarma v. Khiald as Shewaram, : AIR1971Guj86 . Therein the plaintiff sought to have an agreement to sell his shop for a particular sum declared as void as according to him he was coerced to sign the agreement and claimed relief of permanent injunction. It was held that the suit would fall squarely under Section 6(iv)(j) of the Court-fees Act. It was also indicated that the relief claimed was not for removing any cloud over title and since that relief could not be valued in terms of money Article 7, Schedule I also would not be applicable. Significantly, the shop had fixed consideration under the said conveyance and as such it was contended that the suit could have been susceptible of being valued in terms of money. The plaintiff no doubt contended therein that no consideration is passed and hence the said transaction as agreement was obtained from him under coercion though agreement itself mentions that the received specified amount as consideration. It was then observed that if the plaintiff succeeds in the suit accepting this plea of coercion then the Court would hold that no consideration had passed as recited in that agreement. If the agreement remains outstanding and a voidance of agreement is not granted then various consequences may follow but that would not change the frame and substance of the plaint and it cannot be said to be a suit to obtain substantive relief of monetary gain or prevention of monetary loss and the learned Judge further observed that it is one thing to say that as a result of declaration granted by the Court upon the plaintiff's suit, he would got some relief regarding the alleged payment of monetary consideration by the defendant to plaintiff and it is another thing altogether to say that the substance of the suit is to obtain the relief capable of being valued in terms of monetary gain or prevention of monetary loss. It is further held that the substance of the suit is to avoid the alleged agreement and the rest are the consequences purely flowing from such cancellation or avoiding of the agreement by the Court. Ultimately it has been held that the suit has been rightly valued by him as prescribed under the provisions of Section 6(iv)(j) of the said Act.
30. In the same decision the learned single Judge also observed that the Court-fees provision applicable to case must be fixed having regard to the substance and not the form of a plaint. A relief not asked for cannot be imported so as to charge Court-fee thereon. Where the plaintiff is entitled to consequential relief and frames his suit as one for declaration only, the Court should not corn-pel him to pray for such consequential relief and pay Court-fee therefor. The real nature of the suit therefore, is to be looked into.
31. Shri Andhyarujina, the learned counsel also sought to place reliance on the decision of the Supreme Court in Tara Deyi v. Sri Thakur Radha Krishna Maharaj : AIR1987SC2085 , wherein it is observed that in suit for declaration with consequential relief falling under Section 7(iv)(c) of the Court-Fees Act the plaintiff is free to make his own estimation of the reliefs sought in the plaint and such valuation both for the purpores of Court-fee and jurisdiction has to be ordinarily accepted and if it appears to the Court on a consideration of the facts and circumstances of the case that the valuation is arbitrary, unreasonable and the plaint has been demonstratively undervalued, the Court can examine the valuation and can revise the same. As an analogy the learned counsel submits with justification that the frame of the suit, reliefs claimed, declaration sought for as also relief of Court-fee as done by the plaintiff cannot be said to be unreasonable or arbitrary and therefore, normally the same should be accepted. On the contrary in the instant case the same as made by the plaintiff is the only correct mode under the facts and circumstances. Shri Andhyarujina, the learned counsel also suggested relying on the provisions Order XIV Rule 2 of the Civil Procedure Code that many times it is not permissible to try the issue as preliminary issue especially when it involves the question of fact and law and the learned counsel wanted to suggest that this case also would be covered since some facts would be required and as such it was not permissible for the learned trial Judge to have this question tried a's preliminary and he should have decided the same along with other issues at the trial. The proposition no doubt is well founded and reasoning based on that proposition also can well be accepted. However, the learned counsel maintains that on the record as it stands and without there being required any further material on facts the suit has been properly valued and therefore, maintains that the issue has been rightly decided.
32. On the analysis of this entire material in the field of fact and law I have not the slightest reservation to endorse the finding recorded by the trial Judge that the suit squarely falls under Section 6(iv)(j) whereas the provisions of Section 6(iv)(b) and Article 7 of Schedule I have no application. Consequently, therefore, it is rightly held that the City Civil Court is competent enough and has pecuniary jurisdiction to try the suit. The Revision, therefore, carries no substance and deserves to be dismissed.
33. Shri Andhyarujina, the learned counsel however, made a grievance before concluding his arguments that there is calculated attempt to prolong the litigation and for that purpose submitted certain catalogue of events and dates, which no doubt to some extent supports his contention. Thus for instance the suit was filed in 1986 and obviously had some urgency. Against the ad interim relief which was passed on 23rd January 1986 an appeal was filed and there were certain developments in appeal from time to time and even the matter was carried to the Supreme Court at an interlocutory stage where the defendants miserably failed. The appeal was disposed of by this Court on 14th March 1986 and this Court directed the City Civil Court to dispose of the suit on or before 31st December 1986. In spite of that the defendants took several adjournments and filed their written statement on 12th September 1988. Correspondingly they obtained extension from time to time from this Court for disposal of this suit and ultimately the learned single Judge of this Court extended the time up to 31st August 1989. It is on 4th July 1989 that the issues were framed and matter was fixed on 11th July 1989 for recording of evidence and it is on that day that the question of pecuniary jurisdiction was raised as preliminary issue, which was decided against the defendants on 13th July 1989 against which this revision was filed on 20th July 1989, though it is stated at the Bar that the suit was posted for hearing on 26th July 1989 and was to continue day to day thereafter, whereas in the meantime this revision was got circulated and placed for admission on 26/27th July 1989. The learned counsel, therefore, submits that after having failed on other forums there was an attempt to prolong the litigation on this ground. However, the grievance now is that this Court on the earlier occasion had directed disposal of the suit immediately obviously with some object and in order not to frustrate that object fresh direction be issued to take up the suit immediately for day to day hearing and dispose of the same. This request appears to be quite reasonable and in my opinion, the learned trial Judge can be directed to dispose of the same at the most by 15th October 1989.
34. Since the suit is yet to be heard on merits there is no expression of opinion on merits at all and all the points are left open for beingdecided by the learned trial Judge in his unfettered discretion.
35. In the result, Revision being devoid on merits is rejected.
36. The learned trial Judge is directed to endeavour to dispose of the said suit expeditiously as far as possible under the circumstances by 15th of October 1989.
37. Parties to appear before the trial Court on 23rd August 1989 on which day the learned trial Judge shall fix the schedule of the trial in order to achieve the direction of the time limit.
38. Shri Bhabha, the learned counsel for the petitioners, makes a motion that the occupation of this order be stayed for three weeks. Having regard to the facts and circumstances and the findings reached and the fact that the litigation has been unduly prolonged in spite of this Court's directions, it is not possible to subscribe to this request. Motion rejection.
Order accordingly.