ORDER
Navin Chandra Sharma, J.
1. This is a review petition filed by Shri Fateh Singh Mehta under Order 47, Rule 1 C.P.C. seeking review of this Court's order dt. Feb. 16, 1987 passed in Civil Miscelleneous Appeal No. 9 of 1984 against the order-of District Judge, Jodhpur dt. Oct. 28, 1983 whereby this Court dismissed the appeal of Shri Fateh Singh Mehta and affirmed the temporary injunction granted by the District Judge against Shri Mehta and University of Jodhpur.
2. Facts leading to the filing of this review petition are that on July 31, 1982 Shri Om Prakash Singhal instituted Civil Suit No. 119 of 1982 against the University of Jodhpur. Shri Fateh Singh Mehta and Shri Murari Lal Mathur with the allegations that the plaintiff had obtained a degree in Master of Engineering (Mechanical) during the academic session, 1979-80 from the University of Jodhpur. In order to obtain that degree, a student apart from appearing in written examination and viva voce, has to submit a thesis on a selected special matter connected with the subjects after collecting the necessary data and materials and after carrying out experiments and research on the subject. The preparation of thesis involved the student's own skill, labour, intelligence and judgment and giving of the original expression of his thoughts in a concrete form on that subject. The plaintiff Shri O.P. Singhal selected for his thesis the subject 'An Experimental Investigation of Swirling Flow in Cylinderical Chambers'. The plaintiff conducted experiments and research on this subject and Shri Fateh Singh Mehta was his guide. After consulting several books, carrying out experiments and collecting data, the plaintiff completed his thesis and submitted the same to the University of Jodhpur. The thesis submitted by the plaintiff was accepted by the University for his M.E. Degree and on its basis the degree wasconferred on the petitioner. It was alleged that the plaintiff was the author of this thesis and had copyright over its contents.
3. Shri Fateh Singh Mehta, who was Guide of the plaintiff in the preparation of the above thesis, had in the year 1968 applied to the University of Jodhpur for degree of Ph.D. For this degree an applicant has to carry out research work under the supervision of some other person. Shri Fateh Singh Mehta could not submit his thesis for many years and he applied for re-registration as a fresh candidate for Ph.D. some time in the year 1980-81 Shri Fateh Singh Mehta prepared a thesis bearing the subject 'An Aerodynamic Study of Swirling Jets' and read his thesis on Oct. 9, 1981. Shri L.N.C. Agarwal, who was a professor in the Faculty of the Mechanical Engineering raised an objection that the thesis read over by Shri Fateh Singh was not his original research work but was largely and materially a copy of the research work which had been submitted by the plaintiff for his M.E. Degree in Mechanical Engineering. The plaintiff has alleged that Shri Fateh Singh Mehta had in his thesis verbatim copied various chapters, pages summary paras and conclusions from the thesis which had been submitted by him for his M.E. Degree in the Mechanical Engineering. The act of Shri Fateh Singh Mehta infringed the copyrights of the plaintiff. The plaintiff appended to his plaint Schedule 'A' in order to show the various chapters, pages and figures which had been (sic) by Shri Mehta from the thesis on the subject of 'An Experimental Investigation of Swirling Flows in Cylinderical Chambers' which had been submitted by the plaintiff to the University of Jodhpur in connection with his obtaining of the M.E. Degree in Mechanical.
4. Along with the suit, the plaintiff submitted an application for temporary injunction under Order 39, Rule 2 and Section 151, C.P.C. for restraining the University of Jodhpur from conferring a degree on Shri Fateh Singh Mehta of Ph.D. on the basis of the thesis submitted by him on June 8. This application was opposed by Shri Fateh Singh Mehta by his reply filed on September 13, 1982 along with an affidavit. According to Shri Mehta,the plaintiff has only prepared a dissertation and not a thesis on the above subject. According to him, a student is required to submit a dissertation in partial fulfilment of the requirement of the Master's degree. He submitted that he had himself submitted a thesis for obtaining Ph.D. degree on June 8,1981 to the University of Jodhpur, but it was denied that his thesis or any substantial or material portion of it contained any literary theft or piracy or that it contained any re-production from any work in which the plaintiff had a copyright. Shri Mehta pleaded that no copy right existed in dissertation submitted by Shri O.P. Singhal plaintiff for obtaining his post Graduate Degree in Mechanical Engineering. It was further pleaded that he was Guide of Shri O.P. Singhal plaintiff and in his dissertation work the plaintiff had acknowledged with gratitute the expert guidance given to him by Shri Fateh Singh Mehta and also for his permission to use rig fabricated for his own Ph.D. work. It is stated that the plaintiff had no prima facie case and no injury would ensue to him. On the other hand, if an injunction was granted restraining the University from conferring the Degree of Ph.D. on Shri Mehta it would operate very harshly upon him. The balance of convenience was also in his favour. He, therefore, prayed for the dismissal of the application for temporary injunction. The District Judge, Jodhpur on Oct. 28, 1983 allowed the application of the plaintiff and granted a temporary injunction against the University of Jodhpur restraining it from conferring the Ph.D. Degree on Shri Fateh Singh Mehta on the basis of the thesis submitted by him. However, the University was allowed to complete other formalities required to be completed under the Jodhpur University Act and Ordinances in connection with the conferring of the degree. A temporary injunction was also issued against Shri Fateh Singh Mehta restraining him from reproducing his research work or permitting its reproduction by any one else.
4A. Shri Fateh Singh Mehta filed Civil First Appeal No. 9 of 1984 against the order of the District Judge, Jodhpur dated Oct. 28, 1983 granting the above temporary injunctionin this Court. This appeal was dismissed by me on Feb. 16, 1987. While deciding the appeal, I observed as under: --
'Plaintiff Om Prakash Singhal by his studious efforts prepared a thesis entitled 'An Experimental Investigation of Swirling flow in Cylinderical Chambers' and on the basis of that thesis along with passing in other subjects, he obtained a degree of Master of Engineering in Mechanical Engineering. In gratitude like a true disciple he conveyed his heartful thanks to his Guide and Supervisor Fateh Singh Mehta, who was employed as a teacher in the Department of Mechanical Engineering for the guidance, encouragement and also his permission to use the rig fabricated for Fateh Singh Mehta's Doctor of Philosophy degree. But here was a teacher of modern age Shri Fateh Singh Mehta who aspired to obtain a degree of Doctor of Philosophy in Mechanical Engineering and for that purpose, it prima facie appears, from the report submitted by Dr. K. Lingaiah, professor and Head of the Department of Mechanical Engineering and principal University of Visvesvaraya College of Engineering, Bangalore that Shri Fateh Singh Mehta freely copied from the 'work' of his previous ward Shri Om Prakash Singhal in order to fulfil his aspirations. Prima facie his act is not less than copying in an examination hall and the learned District Judge was right in issuing the temporary injunction against which this miscelleneous first appeal has arisen. A teacher cannot be allowed to copy the work of his student and obtain a degree of Doctor of Philosophy and earn future promotions on that basis.'
5. Shri Fateh Singh Mehta has filed the present review petition. Mr. Marudhar Mridul, appearing for Shri Fateh Singh Mehta has urged that in the appeal filed by Shri Mehta, it was his case that plaintiff had not been able to make out a case of irreparable injury being caused to him and also regarding balance of convenience in his favour, but these questions were not decided by this Court while dismissing Civil Miscellaneous Appeal No. 9 of 1984, and, therefore, there is an error apparent on the face ofthe record justifying the grant of review. It was also urged that the plaintiff had himself acknowledged to help given to him by Shri Mehta in the preparation of his dissertation. Merely because the dissertation was submitted by Shri O.P. Singhal plaintiff previous to the submission of his thesis by Shri Mehta, it could not be said that Shri Mehta had indulged in plagiaris. Lastly, it was urged that Shri Fateh Singh Mehta has placed a document dt. Feb. 3, 1985 now before the trial court. This document came into existence subsequent to the order passed by the District Judge, Jodhpur granting temporary injunction. In the annual meeting of Senate of the University of Jodhpur held on 22nd and 23rd Mar. 1985 Shri Mehta was asked to submit revised copy of his thesis indicating due acknowledgements at proper places. It was further urged that the case was referred to an independent expert Dr. Rule Natrajan, Professor and Chairman of Mechanical Engineering, Education Development Centra, Indian Institute of Technology, Madras and he gave different opinion than given by earlier expert prof. K. Lingaiah. Then the matter was referred to another independent expert professor N. Rule Subramaniam. After considering the reports, the Research Board decided that Ph.D. degree be awarded to the petitioner. It is urged that the earlier opinion of Dr. K. Lingiah has lost its value in view of the reports of the above two other experts. It was submitted that these new -materials, which have come in existence, should be taken into consideration by this Court and it may review its order dt. Feb. 16, 1987 dismissing the appeal filed by Shri Fateh Singh Mehta. Shri H. M. Parekh appearing for the University of Jodhpur has supported the contentions put forward by the learned counsel for Shri Fateh Singh Mehta.
6. I have given my due consideration to the submissions put forward by the learned counsel for Shri Fateh Chand Mehta and the University of Jodhpur. The moral basis on which the statutory right of copyright rests is the Eighth Commandment 'Thou shall not steal'. It is for this reason that Lord Halsbury begins his judgment in Walter v. Lane, 1900 AC 539 with the words 'I should very much regret if I were compelled to come to aconclusion that the state of the law permitted one man to make a profit and to appropriate to himself that has been produced by the labour, skill and capital of another'.
7. The definition of 'literary work' given in Section 2(o) of the Copyright Act, 1957 (hereinafter, for short, 'the Act') is an inclusive definition and, therefore, not exhaustive. Its 'literary work' includes tables and compilations. Dissertation is, therefore, prima facie a literary work. The expression 'work' inter alia means a literary work. According to Section 13 of the Act, subject to the provisions of that Section and the other provisions of the Act, copyright subsists throughout India in relation to original literary work. The work 'original' does not mean that the work must he the expression of original or invented thought. Copyright Acts are not concerned with the origin of ideas, but with the expression of thoughts and in the case of 'literary work' with the expression of thoughts in print or writing. The originality which is required relates to the expression of the thought but the Act does not require that the expression must be in an original or novel form, but that the work must not be copied from another work that it should originate from the author (See University of London Press Ltd. v. University Tutorial Press Limited, (1916) 2 Ch 601. Thus it is well settled that the originality in work relates to the expression of thought. Much depends on the skill, labour knowledge and the capacity to digest and utilise the raw materials contributed by the others in imparting to the product the quality and the character which those materials did not possess and which differentiate the product from the materials used. It was stated in the decision reported in AIR 1970 Madh Pra 261. that the law of copyright do not protect ideas but they deal with the particular expression of ideas. It is always possible to arrive at the same result from independent sources. The compiler of a work in which absolute originality is of necessity excluded is entitled, without exposing himself to a charge of piracy, to make use of preceding work upon the subject, where he bestows such mental labour upon what he has taken, and subjects it to such revision andcorrection as to produce an original result. The question whether there has been aninfringement of copy right depends on whether a colourable imitation has been made.
8. Section 17 of the Act provides that subject to the provisions of the Act, the author of a work shall be the first owner of the copyright therein. The copyright subsists within the life lime of the author and until 50 years from the beginning of the calendar years next following the year in which the author dies. Copyright in a work is deemed to be infringed when any person, without a licence granted by the owner of the copyright does anything, the exclusive right to do which is by the Act conferred upon the owner of the copyright. Where a person has copyright in a literary work, and any other person produces or reproduces the work or any substantial part thereof in any material form, he is committing an infringement of copyright.
9. His Lordship Fazal Ali, J. in R.G. Anandv. M/s Delux Films (1978) 4 SCC 118 : (AIR 1978 SC 1613) after referring to various authorities and case law on the subject of copy right, extracted the following propositions : --
'1. There can be no copyright in an idea, subject matter, themes, plots or historical or legendary facts and violation of the copy rights in such cases is confined to the form, manner and arrangement and expression of the idea by the author of the copyrighted work.
2. Where the same idea is being developed in a different manner, it is manifest that the source being common, similarities arc bound to occur. In such a case the Courts should determine whether or not the similarities arc on fundamental or substantial aspect of the mode of expression adopted in the copy righted work. If the defendant's work is nothing but a literal imitation of the copyrighted work with some variations here and there it would amount to violation of the copy right in other words, in order to be actionable the copy must he a substantial and material one which at once leads to the conclusion that the defendant is guilty of an act of piracy.
3. One of the surest and the safest tests to determine whether or not there has been a violation of copyright is to see if the reader, spectator or the viewer after having read or seen both the works is clearly of the opinion and gets an unmistakable impression that the subsequent work appears to be a copy of the original.
4. Where the theme is the same but is presented and treated differently so that the subsequent work becomes a completely new one, no question of violation of copyrightarises.
5. Where, however, apart from the similarities appearing in the two works there are also material and broad dissimilarities which negative the intention to copy the original and the coincidences appearing in the two works are clearly incidental no infringement of the copyrights comes into existence.
6. As a violation of copyright amounts to an act of piracy it must be proved by clear and cogent evidence after applying the various tests laid down by the case law discussed above.
7. Where, however, the question is the violation of the copyrights of stage plays by a film producer or a director the task of the plaintiff becomes more difficult to prove piracy. It is manifest that unlike a stage play a film has a much broader prospective, wider field and a bigger background where the defendants can by introducing a variety of incidents give a colour and complexion different from the manner in which the copyrighted work has expressed the idea. Even so, if viewer after seeing the film gets a totality of impression that film is by and large a copy of the original play, violation of the copyrights may be said to be proved.'
In R.G. Anand's case (AIR 1978 SC 1613), there were concurrent findings of the fact of the District Judge and Delhi High Court and they were not assailed before the Supreme Court. His Lordship R.S. Pathak, J. (as he then was) observed (at p. 1635): -
'If a reappraisal of the facts in the present case had been open in this Court, I am notsure that 1 would not have differed from the view taken on the facts by the High Court, but as the matter stands, the trial court as well as the High Court have concurred in the finding that such similarities as exist between the stage play 'Hum Hindustani' and the film 'New Delhi' do not make out a case of infringement...... This Court is extremelyreluctant to interfere with concurrent findings of fact reached by the courts below and for that reason 1 would allow the judgment under appeal to stand. In another, and perhaps a clearer case, it may be necessary for this Court to interfere and remove the impression which may have gained ground that the copyright belonging to an author can be readily infringed by making immaterial changes, introducing insubstantial differences and enlarging the scope of the original theme so that a veil of apparent dissimilarity is through around the work now produced. The Court will look strictly at not only blatant examples of copying but also at reprehensible attempts at colourable imitation.'
10. Without, in any way, finally expressing opinion on the merits of the ease, if would appear that Shri Mehta in his thesis from pages 21 to 25 has actually reproduced verbatim paras 1.7.1.2. to para 1.7.2.1. at pages 18 to 22 of the dissertation submitted by the plaintiff. The summary given by Shri Mehta in para 2 (page xiv) is also a reproduction of summary given by the plaintiff in paragraph 3 at page (xiii) pages 26 to 30 find reproduction in Shri Mehta's thesis at pages 46 and 47. Several other paras and figures as enumerated by the plaintiff in schedule appended to the plaint are also exactly same. There was a serious question between the parties to be so as to whether there has been an infringement of copyright.
11. As to the contention of the learned counsel for Shri F.S. Mehta that this Court did not go into the question of irreparable injury to the plaintiff and, therefore, the appellate order dated February 16, 1987 deserves to be reviewed it may be stated that Section 55 of the Act provides that where copyright in any work has been infringed, the owner of the copyright shall except as otherwise provided by the Act, be entitled to all such remediesby way of injunction, damages, accounts and otherwise as are or may be conferred by law for the infringement of a right. In Kartar Singh Gayani v. Ladha Singh, AIR 1931 Lahore 624, Tapp. J. said that the plaintiff alleged that the defendants are infringing his copyright and therefore they are committing an act which is contrary to law and consequently an injury. It was obvious that the plaintiff cannot protect himself from the consequence of such an injunction except by an injunction which is one of the remedies open to him under the Copyright Act. It follows that an injunction was the proper relief and his Lordship did not think that it was necessary to demonstrate that unless the defendants are restrained by a temporary injunction, the plaintiff will suffer an irreparable injury or inconvenience. The Court upheld the grant of temporary injunction. Kerron Injunctions (Ed. at page 24 stated): --
'In doubtful cases where the question as to the legal right is one on which the Court is not prepared to pass an opinion, or the legal right being admitted, the fact of its violation is denied. The course of the Court is either to grant the injunction pending the trial of the legal right, or to order the motion to stand over until the legal right has been tried.'
12. Before the trial court, there was report of Dr. K. Lingaiah, Professor and Head of Department of Mechanical Engineering and Principal, University Visveswaraya College of Engineering, Bangalore and he had stated that Shri Fateh Singh Mehta's thesis contains several reproductions from the thesis of the plaintiff. He has given details thereof in his report. Mere resolution of the 'Research Board, Faculty of Engineering at its meeting held on 22nd Nov. 1984 warning Shri Fateh Singh Mehta for not making due acknowledgments in his thesis of the material reproduced from the M.E. thesis of the plaintiff and asking him to submit the revised copy of thesis indicating due acknowledgments at proper places will not be material for the reason that no licence has been granted u/Section 30 of the Act by the owner of the copyright in favour of Shri Mehta. There is neither assignment copyright nor its relinquishment by the plaintiff.
13. In view of the above discussion, 1 am of the view that there is no error apparent on the face of the record justifying review of this Court's order dated February 16, 1987 and more so when injunction is provided as one of the remedies under the Act for any infringement of the copyright. I would, however make it clear that the observations made by me should not be understood in any way as prejudging the main case which is pending before the District Judge, Jodhpur. It would be for the District Judge to decide the case on its merits without in any way, being influenced by anything which I have said in this judgment and he will be at full liberty to form his own opinion on all questions of fact and law which arise in the same and which may be urged before him on behalf of the parties. I would also like to observe that the suit was instituted in July, 1982 and it should be expeditiously decided by the District Judge, Jodhpur.
14. The review petition has no force in it and it is hereby dismissed.