JUDGMENT M.N. Shukla, J. - The plaintiffs filed a suit for accounting, for delivery of books and for an injunction restraining the defendants, their agents, servants and officers from continuing or repeating any infringement of the plaintiffs copyright. The plaint allegations were that Sri Abhay Dev (plaintiff No. 2) wrote a book 'Vedic Vinay in three volumes some time between 1930 and 1934, that he was employed in various capacities in the Gurukul Vishwa Vidyalaya (defendant No. 3) from time to time from 1923 to 1942 and had also left service on several occasions during this period i.e. there were gaps in the continuity of the employment. It was also the case of the parties that the said book was published 63' defendant No. 3 from time to time during the period 1930 and 1956 and its profits appropriated by the said institution, However, plaintiff No. 2 alleged that he was the sole owner of the copyright in the book till 5-10-1950 when he transferred his copyright to plaintiff No-1. It was also alleged in the plaint that the defendant's had with the permission of plaintiff No. 2 published the first, second and third editions of the first volume and the first and second editions of- the second volume and the first and second editions of the third volume, that thereafter plaintiff No. 2 definitely instructed the defendants not to print, publish or sell any more any of the volumes of the said book but notwithstanding such instructions the defendants not only infringed the copyright of the plaintiff No. 2 possessed by him prior to 6-10-1950 and the copyright of the plaintiff No. 1 (assignee) subsequent to 6-10-1950 by publishing, printing and selling without the plaintiffs knowledge and permission the said books but also mentioned them-selves as the owner of the copyright therein, that since the publication of the said books by the defendants the sale of the books of the plaintiff No. 1 had considerably fallen in the market, inasmuch as the defendants had been selling continuously the books complained of that the plaintiff No.1 served the defendants a notice not to publish, print or sell any of those books but in spite of the notice the defendants had published and sold some of the books complained of. It was averred in the plaint that the above acts constituted an infringement of the copyright of the plaintiffs Nos. It was averred in the plaint that the above acts constituted an infringement of the copyright of the plaintiffs Nos. 1 and 2 respectively in these books during the relevant periods, that this was a continuing wrong and hence the suit. 2. The defence case was that the book had been written by Sri Abhay Dev (plaintiff No. 2) while he was in the employment of Gurukul Vishwa Vidyalaya, Kangri and in the course of his employment and as such the defendants were the first owners of the copyright under Section 5 (1) (b) of the Indian Copyright Act, 1911. It' was also pleaded that the Gurukul Vishwa Vidyalaya Kangri through its Mukhya Adhishtata (defendant No. 2) as representing the Arya Pratinidhi Sabha (defendant No. 1) had been all along getting various editions of these books printed and published openly and within the knowledge of the plaintiff No. 2 since Sambat 1988 and the idea of such a book written had also originated from the Antarang Sabha (Executive Body) of defendant No.1 and plaintiff No. 2 had been directed by the said Sabha to write the books for the benefit of the Gurukul (defendant No. 3) and consequently the suit was barred by the principles of estoppel, acquiescence and waiver. Of course, the plaintiffs had alleged that this publication had been done with the permission of plaintiff No. 2 but such permission was denied by the defendants. It was further alleged by the defendants that a long time had passed during which the Gurukul had been publishing the said book as of right and the suit was barred by limitation. It is important to mention that in the last paragraph of the written statement the plea of a tradition and practice had also been set up to the effect that the Acharyas and other employees of the Gurukul Vishwa Vidyalaya had been writing books for the benefit of the said institution and their copyrights had been vested in defendant No. 1 and the books were deemed to have been dedicated to the said Sabha as representing the said institution without reservation of any right for the writer. It is a fact that no issue was actually framed on this last pleading of the defendants. 3. The plaintiffs suit was decreed and aggrieved by the same the defendants have preferred this appeal. It is a fact that no issue was actually framed on this last pleading of the defendants. 3. The plaintiffs suit was decreed and aggrieved by the same the defendants have preferred this appeal. Two questions arise for decision in this case - (1) whether the books were gifted to the Gurukul Vishwa Vidyalaya, Kangri and (2) whether the books in dispute were written under a contract of service and in the course of such employment? If so its effect on the rights of the parties. In fact, only these two points were canvassed by the counsel for the appellants. I propose first to deal with question No. 1. The trial court summarily rejected the defence contention on the ground that no case of surrender or gift had been taken by the defendants at the trial and hence they could not be permitted to take up this position at the time of argument's. This observation of the trial court was plainly wrong. I have already adverted to the specific plea raised by the defendants in this behalf in paragraph 30 of the written statement. It is true that it did not form the subject-matter of any issue, nevertheless the parties went to trial with full awareness of the plea of dedication or gift of the books to the Gurukul Vishwa Vidyalaya, Kangri and also led evidence on the point. Hence, mere omission to frame a specific issue on this point would not justify the shutting out of the defendants case. The ruling reported in AIR 1956 SC 593 , Nagubai Ammal v. B. Shama Rao is on all fours with the present case. In the Supreme Court decision it was held that where parties go to trial with the knowledge that a particular question is in issue, though no specific issue has been framed thereon, and adduce evidence relating thereto, the plea must be taken into account by the court and the absence of specific pleading on the point is a mere irregularity which results in no prejudice to the parties. The record of the present case abundantly shows that there was considerable evidence to prove the case of dedication or gift of copyright by plaintiff No. 2. The record of the present case abundantly shows that there was considerable evidence to prove the case of dedication or gift of copyright by plaintiff No. 2. The letter dated 29th March (Exhibit 6) Sambat 2005 (1948 A. D.) not only contains an emphatic assertion of the factum of dedication but virtually upbraids plaintiff No- 2 for his dishonest attempt to go back on the gift. It was written to plaintiff No. 2 on behalf of the Gurukul Vishwa Vidyalaya, Kangri and says that the books in question had been dedicated to the Gurukul and the gift was irrevocable. The letter also refers to the prevailing custom of dedicating such books to the Gurukul and says that till that time many persons had gifted their books to the Gurukul and had never tried to revoke such gift and that plaintiff No. 2 by asking for the return of his books was setting the first precedent of its kind and that he had neither the moral nor legal right of going back upon his previous dedication. The second letter dated 2-4-1948 (Exhibit 5) is a significant document and gives a glimpse into the working of the mind of plaintiff No. 2. In this letter he asked the Gurukul not to publish these books in future, inasmuch as he desired to make out some income for himself from the publication of those books. The letter actually concludes with an offer of plaintiff No- 2 that he was willing to consider the proposal of even future publication by Gurukul if the latter was prepared to allow plaintiff No. 2 to appropriate a part of the proceeds of some of those books. Obviously this letter indicates that the Gurukul had been publishing these books in the past and that there was a gradual transformation in the attitude of plaintiff No. 2 who now expressed his desire of appropriating a part of the income derived from the publication and sale of the books which he had actually dedicated to the institution. In this context the letter dated 12th October Sambat 2007 reveals the extraordinarily sympathetic and indulgent attitude of the Gurukul Vishwa Vidyalaya, Kangri which after emphasising that the books written for and dedicated to the institution could not be withdrawn, however, makes the concession that the Gurukul was prepared to pay 10% of the net profit from the books to plaintiff No. 2. The letter dated 6-2-1951 written by plaintiff No. 2 further betrays the higgling and commercial attitude in which he had unabashedly lapsed. Its contents are that plaintiff No. 2 claimed 20% of the price of the books sold as his profit and was not prepared to accept merely 10% net profit as proposed by the Gurukul, and that it was always very easy for the institution to show that there was no net profit in the sale of the books. On the other hand, quite consistent with the defendants case is the letter dated 19-5-2008 Sambat (Exhibit 8) (1952 A. D.) in which the Gurukul stated that plaintiff No. 2 was not at all justified in publishing the books which had been gifted to the institution, still, however, considering the extraordinary plight of plaintiff No. 2 and in order to avoid any dispute with him it was prepared to allow him to publish those books provided that they clearly mentioned Gurukul Kangri as the place from which the books were available. The letter ended with a clear -declaration that the Gurukul would also -continue to publish those books. Another important corroborative evidence in the case is a copy of the proceedings -of the executive committee of the Arya Pratinidhi Sabha and its resolution No. 28 (Ex. 9) saying that the gift of the books once made could not be revoked but considering the special circumstances +of the plaintiff No. 2 he might be allowed to share 10% of the net profit accruing from the books. I may also refer in this connection to the letter dated 16-3-1949 written by plaintiff No. 2 to the Principal, Gurukul Vishwa Vidyalaya, Kangri whereby he had requested the latter to supply one copy each of the last edition of the first and second volume of the books to him and thus had recognised the right of the Gurukul to that extent at least. Such apologetic letter would have never been written by the plaintiff No. 2 if he had actually possessed a copyright in the books. Such apologetic letter would have never been written by the plaintiff No. 2 if he had actually possessed a copyright in the books. This furnishes an important clue to the gradual change in the attitude of plaintiff No. 2 and the documentary evidence considered as a whole proves that plaintiff No. 2 had actually made a gift of the books to the Arya Pratinidhi Sabha representing the Gurukul Vishwa Vidyalaya, Kangri but in course of time his intentions became dishonest and he succumbed to the lure of money. Thus, the plaintiff No. 2 having unreservedly placed the book into the hands of the defendants could not be regarded as the owner of the copyright. The ruling reported in Muhammad Abdul Jalil v. Ram Dayal, (1916) ILR 38 All 484 is a case in point and fully supports the contention of the appellants. The plaintiff in that case had prepared a selection of, passages from Persian authors for being prescribed as a course of studies for different examinations of the Allahabad University. The plaintiff was himself a member of the Board of Studies of the said University, and after approval of his selections, the University included those selections in its prescribed syllabus. The defendant brought out a book on the basis of that syllabus, and the plaintiff claimed copyright and alleged that the defendant had infringed his rights. Their Lordships held that by laying the result of his labour (in selecting the passages) unreservedly , at the disposal of University authorities, the plaintiff had surrendered his copyright in that selection and when the syllabus was published for general information, the University authorities also surrendered their own copyright, if any, in the said selection, in favour of the general public. 4. Even though there was no issue framed by the trial court on this question, there was clear pleading in the written statement and the parties went to trial court with full consciousness of the plea raised on behalf of the defendants that the Acharyas and other employees of Gurukul Vishwa Vidyalaya had been writing books for the benefit of the said institution and their copyright had always vested in defendant No. 1, and the books had been deemed to have been dedicated to the institution. Evidence had also been adduced to prove these allegations. Evidence had also been adduced to prove these allegations. In such circumstances no prejudice could possibly be said to have been caused to the parties by the non-framing of the issue and the court below was in error in refusing to entertain this specific plea of the defendants. 5. The second point canvassed on behalf of the appellants relates to an important proposition of law and poses the fundamental question as to who is the first owner of the copyright on the facts of the present case. The answer to this question must depend on the interpretation of Section 5 of the Indian Copyright Act, 1914 which reads: - "5. Ownership of copyright, etc. (1) Subject to the provisions of this Act the author of a work shall be the first owner of the copyright therein: 2. Provided that - (a) Where, in the case of an engraving, photograph or portrait, the plate or other original was ordered by some other person and was made for valuable consideration in pursuance of that order, then, in the absence of any agreement to the contrary, the person by whom such plate or other original was ordered shall be the first owner of the copyright; (b) Where the author was in the employment of some other person under a contract of service or apprenticeship and the work was made in the course of his employment by that person, the person, by whom the author was employed shall, in the absence of any agreement to the contrary, be the first owner of the copyright, but where the work is an article or other contribution to a newspaper, magazine, or similar periodical, there shall, in the absence of any agreement to the contrary, be deemed to be reserved to the author a right to restrain the publication of the work, otherwise than as part of a newspaper, magazine, or similar periodical. (2) The owner of the copyright in any work may assign the right, either wholly or partially, and either generally or subject to limitations, to the United Kingdom or any self-governing dominion or other part of His Majestys dominions to which this Act extends, and either for the whole term of the copyright or for any part thereof, and may grant any interest in the right by licence, but no such assignment or grant shall he valid unless it is in writing signed by the owner of the right in respect of which the assignment or grant is made, or by his duly authorised agent: Provided that where the author of a work is the first owner of the copyright therein, no assignment of the copyright and no grant of any interest therein, made by him (otherwise than by will) after the passing of this Act, shall be operative to vest in the assignee or grantee any rights with respect to the copyright in the work beyond the expiration of twenty-five years from the death of the author, and the reversionary interest in the . copyright expectant on the termination of that period shall, on the death of the author, notwithstanding any agreement to the contrary, devolve on his legal personal representatives as part of his estate, and any agreement entered into by him as to the disposition of such reversionary interest shall be null and void but nothing in this proviso shall be construed as applying to the assignment of the copyright in a collective work or a licence to publish a work or part of a work as part of a collective work. (3) Where under any partial assignment of copyright, the assignee becomes entitled to any right comprised in copyright, the assignee, as respects the rights so assigned, and the assigner, as respects the rights not assigned, shall be treated, for the purposes of this Act as the owner of the copyright, and the provisions of this Act shall have effect accordingly." The above section enacts that subject to the provisions of this Act the first owner of the copyright shall be the author of the work but the provisos carve out the exceptions to the general rule. In my opinion the exception contained in proviso (b) to Section 5 (1) is fully attracted in the present case. In my opinion the exception contained in proviso (b) to Section 5 (1) is fully attracted in the present case. The employer is entitled to the copyright provided the work was done in the course of his employment and (b) under a contract of service or apprenticeship. The words "in the course of his employment" mean "in the course of the work which the author is employed to do and what is incidental; to it." Thus, it connotes two things. In' the first place, it can be said that by and large the work must be executed during: the continuance of the employment but in some cases it may so happen that the work arising out of the employment may have to be completed even after the termination of the employment. Thus, these words do not necessarily mean "during the currency of the engagement". In other words, the work need not always be conterminous with employment. In the second place, the work must become an integrated part of the business of the employment and should not be extraneous to it. Therefore, if a permanent employee does some special work for the proprietor entirely in his own time and; under an independent engagement, outside his ordinary duties, the work is not; done by him "in the course of his employment". In Byrne v. Statist Co., (1914)1 1 KB 622 it was held that the copyright in a translation made by a person on the regular staff of a newspaper, but during his spare time, did not vest in his employers, but remained in the-translator. In the case of Stevenson Jordan & Harrison Ltd. v. Macdonald & Evans, (1952) 1 TLR 101, an accountant, who was employed under a contract of service, during the period of his employment prepared and wrote lectures for delivery to universities and to learned and professional societies dealing with, the business in which he was employed. The giving of the lectures was helpful to* the company in that it served as an advertisement for the company and, oh that account the company paid to the-accountant the expenses he incurred. Still it was held that the lectures were-not prepared in the course of the accountants employment and that the copyright in the lectures remained with the accountant. The giving of the lectures was helpful to* the company in that it served as an advertisement for the company and, oh that account the company paid to the-accountant the expenses he incurred. Still it was held that the lectures were-not prepared in the course of the accountants employment and that the copyright in the lectures remained with the accountant. Denning, L. J. said that one-important feature of the contract of: service was that the man was employed as part of the business and his work Was done as an integral-part of the business whereas under a contract for services, his work, although done for the business, was not integrated into it, but was only accessory to it. 6. The other significant phrase in proviso (b) to Section 5 (1) which needs emphasis and elucidation is "under a contract of service or apprenticeship". A distinction has been drawn between the expressions "contract of service" and "contract for service". The essence of a "contract of service" is the masters right to control the method of doing the work. In Short v. J. and W. Henderson Ltd., (1946) 39 BWCC 62 which was a case in the House of Lords under the Workmens Compensation Act, Lord Thankerton observed that the principal requirement of a contract of service was the right of the master in some reasonable sense to control the method of doing the work and this factor of superintendence and control had frequently been treated as decisive of the legal quality of the relationship. In National Federation of Sub-Postmasters v. Minister of Health, (1939) 161 LT 337 at p. 333 Branson J. held that the existence of an employment under contract of service could be inferred from and depended on the amount of control which the employer exercised over the person whom he employed. Where a man employs another to do work for him under his control, so that he can direct the time when the work shall be done, the means to be adopted to bring about the end. and the method in which the work shall be carried on, then the contract is a contract' of service. Where a man employs another to do work for him under his control, so that he can direct the time when the work shall be done, the means to be adopted to bring about the end. and the method in which the work shall be carried on, then the contract is a contract' of service. If, on the other hand, a man employs another to do certain work but leaves it to that other to decide how that work shall be done, what steps shall be taken to produce the desired effect, then it is a contract for services. (See Copinger on 'Copyright 11th Edition, paragraph 326, page 145). In the case of Simmons v. Heath Laundry Co., (1910) 1 KB 543 it was held that the applicant, who attended at a pupils residence to give her music lessons, was not under a contract of service with her employer. The question really turned upon the degree of control exercised by the employer ever the employee. As observed by Fletcher Moulton L. J. in the above case, "The greater the amount of direct control exercised over the person rendering the services by the person contracting for them, the stronger the ground for holding it to- be a contract of service; and, similarly, the greater the degree of independence of such control, the greater the probability that the services rendered are of the nature of professional services, and that the contract is not one of service". In the same case Buckley L. J. remarked: "In each case the question to be asked is, what was the man employed to do? Was he employed upon the terms that he should, within the scope of his employment, obey his masters orders, or was he employed to exercise his skill and achieve an indicated result in such. manner as, in his judgment, was not likely to ensure success". In an Australian case, Sun Newspapers Ltd. v. Whipple, (1928) 28 SR (NSW) 473 a cartoonist who was employed by a newspaper on terms including a provision that he should obey and comply with all orders and directions of his employers, was held to be employed under a contract of service. In an Australian case, Sun Newspapers Ltd. v. Whipple, (1928) 28 SR (NSW) 473 a cartoonist who was employed by a newspaper on terms including a provision that he should obey and comply with all orders and directions of his employers, was held to be employed under a contract of service. In Copinger on 'Copyright (11th Edition, paragraph 327 page 146) the law has been summed up in the following words; "It is clear, therefore, that if an author or an artist is employed by a publisher to write a book or draw a picture, he does not necessarily become the servant of the publisher. The person who employs him must have the right' under his contract to require the author or artist to produce such a work as the employer desires, and if the work does not meet with his approval, to require the author or artist to alter his work. Subject to these general principles, each-case must depend upon its own facts." 7. In my opinion all the above ingredients which point to the existence of a copyright in favour of the employer are fully present in the instant case. The book was actually written some time between October 1930 and December 1931. The plaintiff No. 2 was appointed a teacher in the Gurukul on 1-12-1979 Sambat (1922 A.D.) on Rs. 75 per month (Exhibit 106-A)- His appointment as Lecturer in the Gurukul was made on 1-1-1980 Sambat (1923 A-D.) vide Exhibit 107-A on a salary of Rs. 85 per month. He was appointed the Principal (Acharya) on 1-10-1988 Sambat (1931 A.D.) He was on leave for six months Without pay in order to enable him to participate in the Freedom Movement from June 1987 Sambat (1930 A.D.) vide Exhibit A-16. This leave was actually granted on 29-6-1930. His Service Book Exhibit A-18 shows that he was appointed a teacher on a permanent post in the Education Department of the Gurukul-Thus, he was a confirmed and permanent employee and that is why he was granted long leave such as the one which he availed of for participating in the Freedom Movement. Besides, he was also granted leave without pay for full one year such as during the period 1926-27. His promotion chart which is on record shows that after leave he was 'reappointed on 1-10-1988 Sambat (1931 A.D-). Besides, he was also granted leave without pay for full one year such as during the period 1926-27. His promotion chart which is on record shows that after leave he was 'reappointed on 1-10-1988 Sambat (1931 A.D-). The word 'reappointed' in this context does not imply a break in the continuity of service. It appears to have been used loosely in a general sense, because there was evidence to show that plaintiff No. 2 was expending time and labour on the writing of the book even after coming out of the jail on 5-3-1931. It has been proved by the defendants that the first volume and half of the second volume of the book and collection of materials for the rest i.e. a major portion of the work was done while plaintiff No. 2 was in the employment of the defendants and he was in service for the bulk of his period of incarceration. I have already mentioned the fact that leave for six months was granted to him from 29-6-30. This period of leave without pay cannot be regarded as breach, in the continuity of service. The plaintiff No. 2 mentioned in his preface to the first edition of the first volume (Exhibit 11) that the work had been done by him during his leave in July and that recital came at a time when the controversy between the parties had not arisen. The said preface along with the testimony of plaintiff No. 2 abundantly proves that the entire material of first volume and half of the second volume was collected by plaintiff No. 2 during his stay in Kanpur -Jail- The preface is very revealing and it gives a glimpse into the procedure which the learned author had adopted for the purpose of writing the book. It also indicates that even after coming out of the jail, he would not have rested on his otherwise the remaining part of the book could not have been completed. The preface says that before embarking upon the work of commenting and translating the Shlokas he learned each Shloka by heart and continued to meditate upon it for the whole day, singing it again and again with great love and concentration and finally put down the commentary and translation the next day after getting into a pious frame of mind by worship etc. Reference may be made in this connection to Exhibit A-13, a letter written by plaintiff No. 2 to defendant No. 2 in which he expressed a desire to give his time exclusively and with concentration to the writing of the third volume of the book and sought permission to delegate his duties as Principal to the Vice-Principal. The plaintiff No. 2 explained in his deposition that by 'writing' he meant writing of a fair copy of the manuscript for the purpose of printing. This shows that he had already written the book. The preface of the first volume shows that he wrote it in Sambat 1987 (1930 A.D.) when he was lodged in Kanpur Jail and he was granted six months leave during this very period, Exhibit A-16 also shows that the book commenced on the bidding of the Arya Pratinidhi Sabha and plaintiff No. 2 was granted leave. This clearly proves continuity of employment. In four months he was able to write the first volume and half of the second volume. While he did this part of the work he was on leave which does not mean cessation of employment. It is also clear that he got the inspiration for the writing of the book from the Antarang Sabha (Executive Body) of the Sabha- As regards the second half of the third volume he sought leave for writing the same vide letter Exhibit A-15, which was granted. This shows that he was in employment when he wrote the same. This was from 1932 onwards vide Exhibits A-ll to A-15. He was arrested in August 1930 and for two months he remained in Saharanpur Jail and thereafter in Kanpur Jail (i.e. from October 1930 to March 1931). He was released on 5-3-1931 after the Gandhi Irwin Pact. He had written the first volume and half of the second volume in Kanpur Jail during the period October 1930 to March 1931 as deposed to by him. Therefore, for all intents and purposes the entire work was done by him during the course of his employment. I am of the view that the activity of writing includes the time occupied in preparation or selection of the material to be utilised in writing the book. Therefore, for all intents and purposes the entire work was done by him during the course of his employment. I am of the view that the activity of writing includes the time occupied in preparation or selection of the material to be utilised in writing the book. Moreover, if a major or even a substantial portion of either the collection of such material or the actual writing of the book is done in the course of employment, it is immaterial if there is little or no evidence to show as to when the remainder of the work was done. There is abundant evidence in the case to show that 75% of the work was done by plaintiff No. 2 in the course of his employment and if the -evidence relating to the remainder 25% of the work is.not clear or clinching, it cannot detract from the general inference that the entire book was written in the course of the employment. 8. There can also be no doubt that -writing of a book of this nature was closely connected with the business of the employer in the present case; it was an integrated part of the activities of the Gurukul, namely, propagation of the tenets of Arya Samaj. It is clear from Exhibit A-4, a letter written by the Secretary of the Sabha to plaintiff No. 2 and also from the preface of the book that the scheme of this stupendous work was to prepare a comprehensive prayer book 'Vedic Vinay by selecting and compiling suitable Shlokas or verses from the Vedas for the purpose of reading one Shloka and its commentary and translation every day for the entire 365 days of the year. Each volume was to consist of such material for four months of the year and was designed to act as a prayer book of the Arya Samaj. Thus, the writing of this book was intimately connected with the main activity of the Gurukul, namely, to propagate the teachings of the Arya Samaj whose main object was to popularise the study of the Vedas. Evidence is also not wanting in this case of the fact that during the entire period of the writing of the book plaintiff No. 2 remained under the general control of the 'Gurukul. Evidence is also not wanting in this case of the fact that during the entire period of the writing of the book plaintiff No. 2 remained under the general control of the 'Gurukul. The letters written by him show how time and again he was asking for leave in order to concentrate upon this work, i.e., the writing of the book which he had undertaken. For this purpose leave was granted to him by the Gurukul. I am inclined to hold that for the purpose of Section 5 of the Copyright Act 'control does not mean physical control but only a right to give directions. It was held in Morren v. Seinton and Pendlebury Borough Council, (1965) 1 WLR 576 that a general control and not control over minute details was the essential requirement of a contract of service. As Lord Parker C. J. emphasised : "Sometimes it is said quite generally that the test is whether the master can order or require what is to be done, where the true contract is one for services, or whether the master can order or require not only what is to be done, but how it shall be done, in which case it is a contract of service. That perhaps as an over-simplification. "The cases have over and over again stressed the importance of the factor of superintendence and control, but that it is not-the determining test is quite clear. In Cassidy v. The Ministry of Health (1951) 2 KB 343 Sommervell L. J. referred to this matter, and instanced, as did Lord Denning in the latter case of Stevenson, Jordon & Harrison v. McDonald & Evans, (1952) 1 TLR 101 (CA) that clearly superintendence and control cannot be the decisive test when one is dealing with a Professional Man, or a man of some particular skill and experience. Instances of that have been given in the form of the master of a ship, an engine driver, or a professional architect, or as in this case, a consulting engineer. In such cases there can be no question of the employer telling him how to do work, therefore, the absence of control and direction in that sense can be of little, if any , use as a test." 9. In such cases there can be no question of the employer telling him how to do work, therefore, the absence of control and direction in that sense can be of little, if any , use as a test." 9. Therefore, on a consideration of the entire material on record I have no hesitation in coming to the conclusion that the three volumes of the book Vedic Vinay were written by plaintiff No. 2 in the course of his employment and in contract of service with the defendants. He was, therefore, not the owner of the copyright in the said book and was consequently not entitled to an injunction restraining the defendants from publishing or selling any volume of the book written by plaintiff No. 2 or the settlement of accounts for delivery of books remaining unsold. 10. In the result this appeal succeeds. The decree passed by the trial court is set aside arid the plaintiffs suit is dismissed. In the circumstances of the case I make no order as to costs.