Eastern Talkies (P) Ltd. v. Sandhya Chitra — 1981 DIGILAW 171 (CAL)

JUDGMENT Mookherjee, J.: The Eastern Talkies Private Ltd. claiming to be the owner of the copyright of the cinematograph film, SAHAR THE KEY DUREY including its story, scenario and dialogue had instituted in the Court of the District Judge, 24-Parganas, a suit under section 55 of the Copyright Act, 1957 against M/s. Sandhya Chitra and Smt. Lila Rani Devi. The learned Additional District Judge, 14th Court, Alipore had decreed the said suit in part against the defendants and has ordered that the plaintiff would get a decree of damages provisionally for Rs 500/- against the defendant No.1, -M/s. Sandhya Chitra and the plaintiff would be entitled to get a further decree on ascertainment of amount of damages and on payment of additional Court-fees. The plaintiff's prayer for permanent injunction has been dismissed by the trial court. 2. M/s. Eastern Talkies Pvt. Ltd., the plaintiff above named being aggrieved by the said judgment and decree refusing its prayer for permanent injunction has presented F. A. No. 241 of 1980. M/s. Sandhya Chitra, the defendant No.1, has also filed F.A. No. 242 of 1980 against the judgment and decree for damages passed against it. 3. We may first briefly set out the cases of the respective parties. The plaintiff company has averred that it was incorporated, inter alia, for the purpose of production, distribution and exhibition of films. In or about the year 1943 the plaintiff through its Managing Director had allegedly negotiated with late Sailajananda Mukherjee for getting written a story dealing with the social evironment and life in villages in Bengal. Late Sailajananda Mukherjee had agreed and at the instance of the plaintiff it was, inter alia, agreed that for a total consideration of the sum of Rs. 10001/- out of which Rs. 1001/- was to be paid as earnest money for: (a) late Mukherjee would write the synopsis of such story in consultation with the plaintiff's Managing Director and also Sri Subal Dasgupta and Sri Sailen Roy, who were respectively to be the Music Director and the Lyricist of the proposed film, (b) late Mukherjee would write the scenario and dialogue also on such consultation and (c) late Mukherjee would direct the said film. The plaintiff alleged to have paid Rs. 1001/- as earnest money in terms of a written agreement which was executed in duplicate. The plaintiff alleged to have paid Rs. 1001/- as earnest money in terms of a written agreement which was executed in duplicate. In pursuance of the said agreement and in consideration mentioned hereinbefore, the story was written and the film named and styled SAHAR THEKEY DUREY was produced. The plaintiff claimed that late Mukherjee was paid the balance of the consideration money of Rs. 9000/-. The said film SAHAR THEKEY DUREY was censored, released and published on 24th December, 1943. The picture had a unprecedented success. On the success of the said film at the request of the publishers, late Sailajananda Mukherjee consented to the publication of a novel in Bengali styled SAHAR THEKEY DUREY. The said novel was claimed to be substantially and mainly based on the scenario of the film. The plaintiff's further case is that in April 1917, Sri Tarun Majumdar was the proprietor of the defendant No.1, M/s. Sandhya Chitra, during a meeting had stated that he had been approached by the widow of late Sailajananda Mukherjee for the purchase of the filming rights of the novels written by him. Subsequently, the defendant No.1, had applied to the Eastern India Motion Pictures Association for registration of the title of SAHAR THEKEY DUREY written by late Sailajananda Mukherjee. The plaintiff had lodged a written objection. There was also correspondence between the parties. The plaintiff had received information that the defendant No.1 had started the shooting of the film SAHAR THEKEY DUREY based on the story/novel written by late Sailajananda Mukherjee in clear infringement of the plaintiff's copyright. Ultimately, on 5th June, 1978, the Eastern Talkies Private Ltd., instituted the suit under section 55 of the Copyright Act. 4. The defendant No.1 in his written statement, inter alia, stated that it was not aware as to when the plaintiff had made any negotiation with late Sailajananda Mukherjee since deceased. The defendant No.1 did not also admit that there was any agreement for consideration of Rs. 10001/-with late Sailajananda Mukherjee, since deceased as alleged by the plaintiff or that the synopsis of the story was written by late Sailajananda Mukherjee pursuant to any agreement with the plaintiff. The defendant No.1 denied that the plaintiff had ever become the first owner of the copyright of the story as per synopsis, scenario or dialogue for the film SAHAR THEKEY DUREY. The defendant No.1 denied that the plaintiff had ever become the first owner of the copyright of the story as per synopsis, scenario or dialogue for the film SAHAR THEKEY DUREY. The defendant No. 1 claimed that the plaintiff was not entitled to obtain any order or injunction or any other relief in respect of the production of the film SAHAR THEKEY DUREY by the defendant No. 1. On 8th of June, 1977 Smt. Lila Rani Devi, the widow of late Sailajananda Mukherjee, had executed a deed of assignment in his favour and the defendant No. 1 was entitled to make the film, SAHAR THE KEY DUREY based on the novel SAHAR THEKEY DUREY published in the year 1945. 5. The first point in these two appeals is whether the plaintiff, the Eastern Talkies Private Ltd., has any copyright as claimed or at all in respect of the cinematograph film SAHAR THEKEY DUREY including its story, scenario and dialogue. The learned Additional District Judge has held that the plaintiff company was the first owner of the copyright of the film, SAHAR THEKEY DUREY anti late Saibjananda Mukherjee, the husband of the defendant No.2 Smt. Lila Rani Devi, had no subsisting cinematographic right of the novel SAHAR THE KEY DUREY and his widow Smt. Lila Rani Devi had no right or authority to assign this right to the defendant No. 1. 6. There is overwhelming evidence on record that in the year 1943 the plaintiff, the Eastern Talkies Private Ltd., had produced the film Darned SAHAR THEKEY DUREY. The averments to the above effect made in the plaint were not specifically traversed in the written statement filed on behalf of the defendant No. 1. The defendant No. 2 who was the widow of late Sailajananda Mukherjee did not file any written statement. Surendra Ranjan Sarkar, P. W. 3, the Managing Director of the plaintiff company, deposed that the plaintiff company had produced SAHAR THEKEY DUREY which was censored and released on 24th December, 1943. His evidence was corroborated by Madhab Lal Ghosal, P. W. 4, Satyendra Nath Bose, P. W. 5, who at the material time was the accountant of the plaintiff and Binoy Banerjee, P. W. 6, who was the editor of the film SAHAR THE KEY DUREY produced by the plaintiff company. The plaintiff's claim of ownership of the film SAHAR THEKEY DUREY is also corroborated by Ext. The plaintiff's claim of ownership of the film SAHAR THEKEY DUREY is also corroborated by Ext. 9 series in particular, the censor certificates dated 24th December, 1943 and 27th July, 1953 (Exts. 9a and 9b) which described the plaintiff as the producer of the said film. Smt. Lila Rani Devi, the defendant No.2, who was examined on commission, as a witness on behalf of the defendant No. 1, in her examination-in-chief admitted that she knew that the Eastern Talkies Pvt. Ltd., had produced the film SAHAR THEKEY DUREY. 7. The trial court has accepted the plaintiff's case that in the year 1943 there was a written contract between the plaintiff company, on the one hand, and late Sailajananda Mukherjee, on the other and under the same it was agreed that for a total consideration of Rs. 10001/- late Mukherjee would write the synopsis of a story dealing with the social environment and life in a village in Bengal in consultation with the plaintiff's Managing Director, the Music Director and Lyricist of the proposed film, (2) the scenario and the dialogue and also the Director of the film Rs. 1001/- was paid as earnest money. The agreement was allegedly executed in duplicate and the plaintiff had retained one copy of the same. Thus, at the plaintiff's instance and for valuable consideration late Sailajananda Mukherjee had allegedly written the story, scenario and the dialogue of the film. Late Sailajananda Mukherjee was also the Director of the said film. The plaintiff did not produce its alleged agreement in writing with late Saibjananda Mukherjee mentioned in paragraphs (2) and (4) of the plain. The plaintiff alleged that on 17th August, 1948 there was a devastating fire in the first floor of the building where the plaintiff had its office and all its valuable records and documents including the said agreement with late Sailajananda Mukherjee were completely destroyed. The plaintiff has purported to prove this part of its case mainly on the basis of oral evidence adduced by it. 8. The plaintiff had produced a certified copy of the judgment of a Presidency Magistrate, Calcutta, dated 25th August, 1949 in Case No. 874 of 1949 (Ext. The plaintiff has purported to prove this part of its case mainly on the basis of oral evidence adduced by it. 8. The plaintiff had produced a certified copy of the judgment of a Presidency Magistrate, Calcutta, dated 25th August, 1949 in Case No. 874 of 1949 (Ext. 7) which showed that Surendra Ranjan Sarkar, the Managing Director of the plaintiff company, was prosecuted under section 285 of the Indian Penal Code and also under section 14 of the Fire Brigade Act for having stored combustible materials without any licence. The learned Presidency Magistrate had, however, acquitted Surendra Ranjan Sarkar, of the aforesaid charges. Mr. Dasgupta has fairly conceded that the said judgment 9f the Criminal Court was admissible in evidence only to show that the said Surendra Ranjan Sarkar was tried and acquitted in the case. But the contents of the said judgment could not be used as a proof of the fact that the aforesaid written agreement between the plaintiff company and late Sailajananda Mukherjee •was actually destroyed by fire. Mr. Dasgupta has, however, submitted that the plaintiff has satisfactorily proved by oral evidence that the original copy of the said agreement which was in the plaintiff's possession was in fact destroyed by fire. Accordingly, the plaintiff was entitled to adduce secondary evidence about the terms of the said agreement between the plaintiff and late Sailajananda Mukherjee regarding the writing of the scenario, dialogue and for giving direction of the film SAHAR THEKEY DUREY. Both Surendra Ranjan Sarkar, P. W. 3, the Managing Director of the company and Satyendra Nath Bose, P. W. 5, the Accountant of the company, had deposed that on 11th August, 1948 there was a fire in the office of the plaintiff company in the first floor of premises No. 127B, Lower Circular Road and the agreement papers which were in the plaintiff's production department situated in the floor of the said building along with other papers - were destroyed. The defendant No. 1 did not adduce any evidence in rebuttal and could not even effectively cross-examine P.W.s 3 to 5 regarding their evidence about the said alleged fire in the plaintiff's office and the destruction of the aforesaid agreement. The defendant No. 1 did not adduce any evidence in rebuttal and could not even effectively cross-examine P.W.s 3 to 5 regarding their evidence about the said alleged fire in the plaintiff's office and the destruction of the aforesaid agreement. Therefore, we agree with the trial court that the plaintiff had satisfactorily proved that there was an agreement between the plaintiff and late Sailajananda Mukherjee and the written agreement kept in plaintiff's custody was in fact destroyed by fire. 9. Mr. Dutt, learned Advocate for the appellant, submitted before us that the oral evidence given on the side of the plaintiff regarding the terms of the alleged agreement between the plaintiff company, on the one hand, and late Sailajananda Mukherjee, on the other, was not admissible evidence. Mr. Dutt further submitted that according to the plaintiff, at least one more copy of the agreement was prepared and signed by both parties and the same was allegedly left in the possession of late Saiiajananda Mukherjee. After the plaintiff's copy of the agreement was destroyed by fire in the year 1946 the plaintiff never attempted to obtain the duplicate copy of the said agreement from late Sailajananda Mukherjee, who died in the year 1946. During the pendency of the suit, the plaintiff did not cause any notice under section 66 of the Evidence Act to be served upon late Sailajananda Mukherjee's widow, Smt. Lila Rani Devi, the defendant No.2. Therefore, according to Mr. Dutt, the preconditions for adducing secondary evidence were absent in the instant case. 10. We have already held that there was no reason to disbelieve the plaintiff's case about the destruction by fire of the original written agreement between the plaintiff and late Sailajananda Mukherjee regarding the writing of the story, scenario and dialogue and for giving direction of the film SAHAR THEKEY DUREY. Smt. Lila Rani Devi, the widow of late Sailajananda Mukherjee, in course of her evidence given on commission deposed that the papers of late Sailajaminda Mukherjee were not with her and claimed that they got lest during removal from one house to another. She had also deposed that the copy of the Eastern Talkies• agreement in respect of the film, SAHAR THEKEY DURER was not with her. Therefore, in these circumstances, the secondary evidence by way of oral testimony was admissible in evidence. She had also deposed that the copy of the Eastern Talkies• agreement in respect of the film, SAHAR THEKEY DURER was not with her. Therefore, in these circumstances, the secondary evidence by way of oral testimony was admissible in evidence. The mere fact that after destruction of the original agreement, the plaintiff company never requested late Sailajananda Mukherjee to make over the other copy to it is not fatal to the plaintiff's case. Smt. Lila. Rani Devi in course of her evidence had submitted that there was great cordiality between late Sailajananda Babu and Surendra Ranjan Sarkar of Eastern Talkies. She also admitted that she previously used a Vauxhall car belonging to the Eastern Talkies and she could not deny that the Eastern Talkies used to pay all the expenses of running the said car. It further appeared from the correspondences between late Sailajananda Mukherjee and Surendra Ranjan Sarkar that later on late Sailajananda Mukherjee apparently had faced financial difficulty but relations between the two continued to be cordial and intimate and late Sailajananda Mukheljee more than once sought Surendra Babu's advice and help. Therefore, there was nothing unnatural in the conduct of the plaintiff who did not ask late Sailajananda Mukherjee to make over the other original copy of the agreement which was in the latter's custody. 11. We may now proceed to discuss the evidence on the point that at the plaintiff's instance and for valuable consideration late Sailajananda Mukherjee had written the story, scenario and dialogue of its film SAHAR THEKEY DUREY. Secondly, whether the plaintiff company was the owner of the copyright of the story, scenario and dialogue' of the said film. 12. The plaintiff company's case is that in the year 1943 it became the first owner of the copyright in respect of the cinematograph film SAHAR THE KEY DUREY, its story, scenario and dialogue, etc. At the relevant time the Indian Copyright Act, 1914 was in force; under the said Act of 19!4, subject to certain modifications, the Copyright Act of 1911 of the Imperial Parliament then applied in India. Therefore, the pertinent question would be whether or not according to the provisions of the Copyright Act, 1911 the plaintiff could and did become the owner of the said copyright. Therefore, the pertinent question would be whether or not according to the provisions of the Copyright Act, 1911 the plaintiff could and did become the owner of the said copyright. The Indian Copyright Act, 1914 and the Copyright Act, 1911 as modified in its application to India were repealed by sub-section (1) of section 79 of the Copyright Act, 1957 enacted by the Indian Parliament. The sub-section (4) of section 79 of the Copyright Act, 1957 has laid down that where a copyright subsisted in any work immediately before the commencement of the Copyright Act, 1957, the rights comprising such copyright shall, as from the date of such commencement, the rights specified in section 14 of the 1957 Act in relation to the class of the works to which such work belongs. Therefore the plaintiff was required first to establish that under the Copyright Act, 1911 read with Indian Copyright Act, 1914 it was entitled to the copyright claimed in the instant suit and further that immediately before the commencement of the Copyright Act, 1957, the said copyright was in the plaintiff. Only in that event the plaintiff can successfully assert, that, after the commencement of the Copyright Act, 1957 in relation to the said cinematograph film, it was entitled to the rights specified in section 14(1)(c) of the Copyright Act, 1957. 13. Copinger and Skone James on Copyright (11th Edition) in paragraph 753 pointed out that under the Copyright Act, 1911 there was no copyright in a film as such. 'Regarded as a series of photographs, each photograph was protected as an artistic work.' Similarly, 'the sound track, was protected as a contravance by means of which sounds might be mechanically reproduced. The production was protected as a dramatic work where the arrangement or acting form, or combination of incidents represented, gave the work an original character. According to the learned authors, there could be also separate literary or dramatic work and copyright in any scenario or script. The making of the film might well involve infringement of the separate copyright of authors and composers whose separate works were embodied in the film. Both the English Copyright Act, 1956 and the Copyright Act, 1957 enacted by British Parliament have brought about certain changes with regard to copyright in cinematograph films. Both these Acts now confer an additional independent copyright in the cinematograph films as such. 14. Mr. Both the English Copyright Act, 1956 and the Copyright Act, 1957 enacted by British Parliament have brought about certain changes with regard to copyright in cinematograph films. Both these Acts now confer an additional independent copyright in the cinematograph films as such. 14. Mr. Dasgupta, learned Advocate for the plaintiff-appellant, has rightly pointed out that under section 35(1) of the Copyright Act, 1911 the cinematograph film was included within the definition of the expression "dramatic work" and "the arrangement or acting form or the combination of incidents represented which were of original character" were protected under the Copyright Act, 1911. The expression 'artistic work' under section 35 of the said Act included photographs; and 'photograph' in their turn included 'cinematograph' which previously mainly consisted of pictorial representation of the playas acted (see paragraph 744 of Copinger and Skone James on Copyright, (11th Edition). Thus, it had been held that if incidents or dramatic effects were reproduced in the same order or arrangement in another work, the author of the latter work would be guilty of piracy. It has been also held that when verbal composition of the defendant's works are similar the same would throw a light on the question of infringement of copyright [see (1) Tate v. Fulbrook, 1908(1) KB 821]. 15. Mr. Dutt submitted before us that late Sailajananda Mukherjee had admittedly written the scenario and dialogue of the film, SAHAR THEKEY DUREY and, therefore, he ought to be held as the first owner of the copyright therein. According to Mr. Dutt, the plaintiff did not prove that late Sailajananda Mukherjee had made any valid assignment of his said copyright and, therefore, his widow, Smt. Lila Rani Devi, the defendant No.2, had lawfully transferred her rights therein in favour of the defendant No. 1. At the relevant time sub-section (2) of section 5 of the Copyright Act, 1911 was in force and under the said provision no assignment or grant was valid unless it was in writing signed by the owner of the copyright. But in the instant case, the plaintiff neither pleaded nor sought to prove that late Sailajananda Mukherjee had assigned the copyright in question in favour of the plaintiff. But in the instant case, the plaintiff neither pleaded nor sought to prove that late Sailajananda Mukherjee had assigned the copyright in question in favour of the plaintiff. The plaintiff's case was that it had commissioned late Sailajananda Mukherjee to write the synopsis, scenario and the dialogue of the above named film and to direct the same and, therefore, the plaintiff was the owner of the copyright in respect of the aforesaid things. 16. But under the Copyright Act, 1911 and also the Copyright Act, 1957 ordinary writer would be the first owner of the copyright of his literary, dramatic or musical work and he would have the right to authorise, inter alia, reproduction of the work in any material form and to make a cinematograph film in respect of the same. But the proviso (a) and (b) to sub-section (1) of section 5 of the Copyright Act, 1911 contained exceptions to the said general preposition that the author of a work shall be the first owner of the copyright therein. The clauses (a) to (e) of the proviso under sub-section (1) of section 17 of the Copyright Act, 1957 contain exceptions to the rule that the author of a work is its first owner. Under clause (a) of the proviso to sub-section (1) of section 5 of the Copyright Act, 1911 where in 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, the person by whom such plate or other original was ordered would be the first owner of the copyright. We have already pointed out that under section 35 of the Copyright Act, 1911 the cinematograph film was within the definition of the expression 'photograph' and the same was also an artistic work. Thus, when the aforesaid clause (a) of proviso to section 5(1) of the Copyright Act applied it was not the maker of the photograph or the engraving etc. but the person who had placed the order and had paid valuable consideration would be the owner of the copyright. Therefore, if it is established that the plaintiff company had paid the consideration money and had ordered the cinematograph film, SAHAR THEKEY DUREY to be made, the plaintiff would be the owner of the copyright therein. 17. but the person who had placed the order and had paid valuable consideration would be the owner of the copyright. Therefore, if it is established that the plaintiff company had paid the consideration money and had ordered the cinematograph film, SAHAR THEKEY DUREY to be made, the plaintiff would be the owner of the copyright therein. 17. We may also refer to clause (b) of the proviso to section 5(1) of the Copyright Act, 1911. In the absence of any contract to the contrary, the employer would be the first owner of the copyright in respect of the work made in course of employment by his employee or apprentice. This provision in clause (b) of section 5(1) of the Copyright Act, 1911 was not applicable to an article or other contribution to a newspaper, magazine or similar periodical and the author thereof in the absence of any agreement to the contrary was entitled to restrain the publication of the work otherwise than as a part of a newspaper, magazine or similar periodical. 18. The clause (a) of the proviso to section 17(1) of the Act of 1957 substantially corresponds to last part of clause (b) of the proviso to section 5(1) of the Copyright Act, 1911 and deal with the copyright in literary, dramatic or musical work made by the author in course of his employment by the proprietor of a newspaper, magazine or similar periodical. The said clause is not relevant for decision in the present case. The clause (b) of the proviso to section 17(1) of the 1957 Act is substantially the same as clause (a) of the proviso to section 5(1) of the Act of 1911 and the said section 17(1)(b) has expressly mentioned cinematograph films which has now been made a separate subject-matter of copyright. Under the said clause in case of a photograph taken or a painting or a portrait drawn, or any engraving or cinematograph film made for valuable consideration at the instance of any person, such person shall, in the absence of any agreement to the contrary, be the first owner of the copyright therein. Under the said clause in case of a photograph taken or a painting or a portrait drawn, or any engraving or cinematograph film made for valuable consideration at the instance of any person, such person shall, in the absence of any agreement to the contrary, be the first owner of the copyright therein. Copinger and Skone James on Copyright (11th Edition) in paragraphs 310 and 311 have discussed the legal position with regard to such commissioned work both under section 5(1)(a) of the Copyright Act, 1911 and under section 4(3) of the English, Copyright Act, 1956 and have pointed out that although the expression 'cinematograph film' did not occur in the definition of photograph in the earlier Act of 1911, under the said Act cinematograph film was protected as a photographic work. 19. We have already mentioned that the Copyright Act, 1957 enacted by the Par1iament of India has now repealed the Copyright Act, 1914 and the Copyright Act, 1911 (as applicable to India). The Copyright Act, 1957 has now enacted that copyright shall subsist in cinematograph film as a whole and the owner of the film at the time of its completion shall be the author of the film (vide section 2(d)(v) of the Copyright Act, 1957). But as at present advised, we hold that the Copyright Act, 1957 does not deprive the owner of a cinematograph film which was made before the repeal of the Copyright Act, 1911, his exclusive right to the arrangement or acting form or the combination of incidents represented which 'give the work an original character. We have also referred to the different clauses of the proviso to section 17(1) of the Copyright Act, 1911 which have made provisions about the ownership of commissioned works. 20. The Supreme Court in (2) Indian Performing Right Society Ltd. v. Eastern Indian Motion Picture Association and Ors., AIR 1977 SC 1443 , affirmed a Division Bench decision of this Court reported in (3) AIR 1974 Cal. 257 , and inter alia. interpreted the section 14 and clauses (b) and (c) of the proviso to section 17(1) of the Copyright Act, 1957. In the said case, the following two questions arose for decision: first, whether the author or the composer of a literary or musical work forming part of a cinematograph film has any copyright. 257 , and inter alia. interpreted the section 14 and clauses (b) and (c) of the proviso to section 17(1) of the Copyright Act, 1957. In the said case, the following two questions arose for decision: first, whether the author or the composer of a literary or musical work forming part of a cinematograph film has any copyright. Secondly, whether section 17(b) of the Copyright Act, 1957 had any application to such literary or musical work in respect of which a film had been made. The Supreme Court in Indian Performing Right Society Ltd.'s case (supra), upheld the claim of the producers of the cinematograph film that in case one is commissioned to make component parts of a cinematograph film such as lyric or musical work at the instance of a film producer and for valuable consideration the copyright in such component part shall as well vest in the producer of the film. The producer becomes the first owner of the copyright under proviso (b) of section 17(1) of the Copyright Act, 1957. The Supreme Court further held that the author (composer) of a lyric or musical work has authorised a cinematograph film producer to make a film of his work thereby permits the latter to appropriate his work by incorporating or recording it on the sound track of a cinematograph film and cannot restrain the author (the owner of the film) from causing the acoustic portion of the film to be performed, projected or screened in public for profit or from making any record embodying the recording in any part of the sound track associated with the film. According to the Supreme Court, in the aforesaid circumstances, a protectable copyright (comprising a bundle of exclusive rights mentioned in section 14(1) (c) of the Copyright Act, 1911) comes to vest in the owner of the film and the rights of the music composer or lyricist can be defeated by the producer of the cinematograph film in the manner laid down in the provisions (b) and (c) of section 17(1) proviso of the Act, 1957. The above Supreme Court decision is binding upon us and we hold that when the conditions laid down either in clause (a) and (b) of the proviso to section (5) of the Copyright Act, 1911 correspond to clauses (b) and (c) of the proviso to section 17 of the Copyright Act, 1957 are fulfilled, the owner of the cinematograph film acquired exclusive rights in the cinematograph film and its components enumerated in section 14(1)(c) of the Copyright Act, 1957. In case either of the above clauses apply, the actual maker of the components of the film never becomes the owner, of the same but their works are appropriated by the producer or the owner' of the film. For the foregoing reasons, the defendant No.1 cannot make a cinematograph film which is substantially a copy of the earlier cinematograph film in which the plaintiff has a subsisting copyright. We shall hereinafter consider what are the legal tests for determining whether one cinematograph film is a copy of another. 21. We may briefly discuss the evidence on the question whether at the instance of the plaintiff late Sailajananda Mukherjee had written the story, scenario and dialogue of the film SAHAR THEKEY DUREY and 'whether the said late Mukherjee had received valuable consideration for the said work, We have already mentioned that the plaintiff did not produce the original agreement pleaded in paragraphs (2) and (3) of the plaint on the plea that the same had been destroyed by fire. We have already dealt with the evidence regarding the destruction of the plaintiff's records including the said agreement in a fire which allegedly broke out in the plaintiff's office. But in view of the evidence of P. W. 3, regarding the agreement between the plaintiff and late Sailajananda Mukherjee and payment of consideration to the latter have been satisfactorily proved. Surendra Ranjan Sarkar, P. W. 3, in his examination-in-chief stated that in March, 1943 late Sailajananda Mukherjee was paid Rs. 1001/- as earnest money and the balance at the rate of Rs. 10001/- per month was agreed to be paid with effect from April 1943. Late Sailajal1anda Mukherjee did all the jobs in terms of the agreement and was paid the remuneration. P.W.3, Surendra, claimed that Madhab Ghosal and Binoy Mukherjee were present at the time of the talks with late Sailajananda Mukherjee and also at the time of the agreement was made. Late Sailajal1anda Mukherjee did all the jobs in terms of the agreement and was paid the remuneration. P.W.3, Surendra, claimed that Madhab Ghosal and Binoy Mukherjee were present at the time of the talks with late Sailajananda Mukherjee and also at the time of the agreement was made. He also mentioned the name of Satyendra Nath Bose, the Accountant of the Company. As one of the persons who knew of the payment of Rs. 10001/-to late Sailajananda Mukherjee. Madhab Ghosal, who claimed that he was connected with the film since 1939 was examined as P.W. 4, Satyendra Nath Bose, who was the Accountant of the plaintiff company at the relevant time, P. W. 5, and Binoy Bannerjee who edited the film SAHAR THEKEY DUREY, P. W. 6, fully corroborated Surendra Ranjan Sarkar that there was agreement between the plaintiff and late Sailajananda Mukherjee and that late Sailajananda Mukherjee, had received the remuneration from the plaintiff. It may be noted that Binoy, P.W. 6, was admittedly very intimate with late Sailajananda Mukherjee. There is nothing to show that these three witnesses were independent witnesses. There was not even any effective cross-examination on the defendant's side regarding the evidence by those witnesses about the payment of the consideration by the plaintiff company to late Sailajananda Mukherjee for making of the film, SAHAR THEKEY DUREY. 22. The defendant did not give any evidence to contradict the plaintiff's case that at their instance late Sailajananda Mukherjee had written the story, scenario and dialogue and had directed the film and further he was paid a remuneration for the same. Smt. Lila Rani Devi, the widow of late Sailajananda Mukherjee, in her evidence admitted that she knew that the plaintiff had produced the film, SAHAR THEKEY DUREY. She also knew that her husband had written the story and had given direction to that film. She, however, claimed that she had no knowledge about the agreement between the plaintiff and late Sailajananda Mukherjee. In her cross-examination, Smt. Lila Rani Devi stated that she did not know for certain whether late Sailajananda Mukherjee had only received the amount agreed to have been paid in respect of writing the story, scenario and dialogue of the story of each of the films of the plaintiff. She also claimed that she did not know whether late Sailajananda Mukherjee had received a sum of Rs. She also claimed that she did not know whether late Sailajananda Mukherjee had received a sum of Rs. 10001/- as per agreement in respect of the film, SAHAR THEKEY DUREY. She had also no recollection as to whether she had asked Surendra Babu to pay Rs. 5000/- more for successful running of the film or whether Surendra Babu had given her the cheque for Rs. 5000/- drawn in favour of late Sailaja Babu. Thus, in course of her long deposition given on commission Smt. Lila Rani Devi admitted that as per instructions of Surendra Babu, late Sailajananda Mukherjee had written the story, scenario and dialogue of the film SAHAR THEKEY DUREY and she also claimed that she had no knowledge how much had been paid to late Sailajananda Mukherjee for the said works done by him. Therefore, the plaintiff's evidence regarding their payment of consideration to late Sailajananda Mukherjee remain un-contradicted. It is also reasonable and probable that the plaintiff had paid remuneration to late Sailajananda Mukherjee who had admittedly written the story, scenario and the dialogue and had given directions for the film, SAHAR THEKEY DUREY. 23. The plaintiff has also given evidence about the conduct of late Sailajananda Mukherjee subsequent to the making of the film, SAHAR THEKEY DUREY. It appeared that in his later life late Sailajananda Mukherjee had faced financial difficulties and made correspondence with Surendra Ranjan Sarkar, the Managing Director of the plaintiff company, with whom late Sailajananda Mukherjee appeared to have maintained cordiality. He sought the help of Surendra Babu for raising money by giving his filing right of his another novel to a party from Dacca. Late Sailajananda Mukherjee had visited Bombay for work. At no stage late Sailajananda Mukherjee had asserted any claim in the story of the film, SAHAR THEKEY DUREY or had admitted to raise money by assigning his rights therein. Even the proprietor of the defendant company had first approached Surendra Ranjan Sarkar for obtaining the right to make a new cinematograph film based on the story of SAHAR THEKEY DUREY. But no agreement was made between them. Surendra had disclosed to him that the agreement and other papers relating to the making of the film, SAHAR THEKEY DUREY had been allegedly destroyed. Tarun Majumdar ultimately obtained a deed of assignment from Smt. Lila Rani Devi, the widow of late Sailajananda Mukherjee. Mr. But no agreement was made between them. Surendra had disclosed to him that the agreement and other papers relating to the making of the film, SAHAR THEKEY DUREY had been allegedly destroyed. Tarun Majumdar ultimately obtained a deed of assignment from Smt. Lila Rani Devi, the widow of late Sailajananda Mukherjee. Mr. Dutt, learned Advocate appearing on behalf of M/s. Sandhya Chitra, who have made a new film based on the film, SAHAR THEKEY DUREY, has submitted that the plaintiff is not entitled to claim that its copyright had been infringed. Mr. Dutt submitted that the plaintiff has not proved that it either itself or by its servant had produced the story, scenario and dialogue for the film, SAHAR THE KEY DUREY. According to Mr. Dutt, late Sailajananda Mukherjee was the original owner of the copyright and the plaintiff had failed to prove that late Sailajananda Mukherjee had assigned his said rights in favour of the plaintiff. We have already rejected these arguments and have found that it was at the plaintiff's instance late Sailajananda Mukherjee had written the story, scenario and dialogue of the film, SAHAR THEKEY DUREY and he had also directed the said film. The plaintiff has also proved that it had paid remuneration to late Sailajananda Mukherjee for the above work. Therefore, late Sailajananda Mukherjee had no subsisting right therein. 24. It is admitted that after the film, SAHAR THEKEY DUREY was made and exhibited the novel bearing the same name was published. Late Sailajananda Mukherjee in the preface of the first edition of the said novel (Ext. 11) had, inter alia, stated that he had hurriedly completed the film, SAHAR THE KEY DUREY which had received unprecedented reception from the public. Late Sailajananda Mukherjee further stated that he was never satisfied unless the stories of his films were published in the form of books. Hence, he is publishing the story of the scenario of SAHAR THEKEY DUREY in the form of a novel. He acknowledged that the book was being published on account of the eagerness of the two persons at the helm of Sri Krishna Library. In the first edition of the said novel one Sudhir Bandhu Banerjee had compiled the said novel. Hence, he is publishing the story of the scenario of SAHAR THEKEY DUREY in the form of a novel. He acknowledged that the book was being published on account of the eagerness of the two persons at the helm of Sri Krishna Library. In the first edition of the said novel one Sudhir Bandhu Banerjee had compiled the said novel. P.W. 3, Surendra, in course of his oral evidence deposed to the above effect and claimed that Sudhir Bandhu Banerjee had prepared that novel out of the scenario and dialogue written by late Sailajananda Mukherjee. Thus, it is practically undisputed that the story of the film SAHAR THEKEY DUREY made by the plaintiff and the story of the published novel were same. In fact, the said published novel appeared to consist largely of dialogue' and descriptions of different scenes. Further even if it is assumed that late Sailajananda Mukherjee had retained his right to publish in form of a novel the story of SAHAR THEKEY DUREY, the same cannot necessarily mean that he could assign the right to make a second cinematograph film based on his story. In our view, there being overwhelming evidence that at the plaintiff's instance late Sailajananda Mukherjee had written the story, scenario and dialogue of the film SAHAR THEKEY DUREY produced by the plaintiff and that he had received valuable consideration for the same, it was the plaintiff and not late Sailajananda Mukherjee who became the first owner of the cinematograph film SAHAR THEKEY DUREY including its story, scenario and dialogue. Therefore, late Sailajananda Mukherjee's widow, Smt. Lila Rani Devi, could not have made a valid assignment of the filming right of the said story in favour of the defendant. Thus, we conclude that the plaintiff was the owner of the film SAHAR THEKEY DUREY and accordingly he was also the owner of the component parts of the said film including the story, scenario and the dialogue, etc. He was exclusively entitled to the performance of the said story in the cinematograph medium. 25. Before we consider the next question whether or not the defendant No.1 had infringed or threatened to infringe the plaintiff's said copyright, we may refer to the relevant law on the subject laid down by, the Supreme Court in (3) R. G., Anand v. De-lux Films, AIR 1978 SC 1613 . 25. Before we consider the next question whether or not the defendant No.1 had infringed or threatened to infringe the plaintiff's said copyright, we may refer to the relevant law on the subject laid down by, the Supreme Court in (3) R. G., Anand v. De-lux Films, AIR 1978 SC 1613 . The Supreme Court in R. G. Anand's case (supra), had considered whether copyright of the plaintiff dramatist in a drama had been infringed by a cinematograph film made by the defendant. In the said case, the cause of action accrued before the commencement of the Copyright Act, 1957 but the principles and tests laid down by the Supreme Court in R. G. Anand's case (supra), would be applicable to the present state of law on the subject. Fazal Ali, J. in his leading judgment elaborately referred to the authorities and judicial precedents on the subject and in paragraph 46 of his judgment formulated the general principles. It was pointed out that there could be no copyright in an idea, subject-matter, themes, plots and historical or legendary facts and violation of the copyright is confined to the form, manner and arrangement and expression of the idea by the author of the copyrighted work. Further, in order to be actionable the copy must be a substantial and material one which at once leads to the conclusion that the defendant is guilty of an act of piracy. The learned Judge further indicated that "one of the surest and safest test to determine whether or not there has been a violation of copyright is to see if the reader, spectator or the viewer 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". The same thing was somewhat differently stated by Bayley, J. in (4) West v. Francis (1822) 1 B & Ald. 737. "... an imitation will be a copy which gives so near to the original as to suggest the original to the mind of every person seeing it. In other words, if after having seen the picture a person forms a definite opinion and gets a dominant impression that it has been based on or taken from the original play by the appellant, that will be sufficient to constitute violation of the copyright". In other words, if after having seen the picture a person forms a definite opinion and gets a dominant impression that it has been based on or taken from the original play by the appellant, that will be sufficient to constitute violation of the copyright". Another proposition enunciated by Fazal Ali, J. in R. G. Anand's case (supra), was that where the theme is same but is presented and treated differently so that the subsequent work becomes completely a new work no question of violation of copyright arises. In case there are materials and broad dissimilarity and coincidences appearing in the two works are not clearly identical, there would be no infringement of the copyright. 26. In the light of the above principles we may now consider the question whether or not the cinematograph film, SAHAR THEKEY DUREY made by the defendant No. 1 was substantially a copy of the earlier film produced by the plaintiff company. At the outset we may point out that the film produced by the defendant is undisputedly based on the novel, SAHAR THEKEY DUREY. The learned Additional District Judge had decided the said point practically on the basis of the report of Sri Sudhamoy Gautom, who was appointed as a commissioner at the instance of the plaintiff. Before we decide whether or not the learned Additional District Judge was justified in doing so, we may first deal with the submissions made on behalf of the defendant No. 1 appellant regarding the appointment of the said Pleader Commissioner. 27. On 18th July, 1979 the plaintiff had filed a petition in the trial court for appointment of a Commissioner for inspection of the two films. On 27th July, 1979 the defendant No. 1 had taken no step and was found absent on calls. The trial court by its order No. 42 dated 27th July, 1979 allowed the plaintiff's prayer for appointment of a Commissioner to see the two films and to submit a report. The plaintiff was directed to put in Rs. 100/- provisionally towards the cost of the Commissioner. The trial court by its order dated 18th July, 1979 had appointed Sri Sudhamoy Gautom as the Commissioner to report as to the points mentioned in the plaintiff's petition dated 18th July, 1979 after viewing the two films. The plaintiff was directed to put in Rs. 100/- provisionally towards the cost of the Commissioner. The trial court by its order dated 18th July, 1979 had appointed Sri Sudhamoy Gautom as the Commissioner to report as to the points mentioned in the plaintiff's petition dated 18th July, 1979 after viewing the two films. Before the said order was passed, the defendant No. 1 neither filed any objection nor opposed the order for appointment of a Commissioner. On 20th August, 1979 the defendant No.1 had filed a petition for recalling the Order No. 42 dated 27th July, 1979. The trial court by its Order No. 50 dated 21st August, 1979 rejected the said petition of the defendant No.1 as not moved. The defendant did not press his prayer for the recall of the Commission but filed another petition praying that the Commissioner be directed to observe the dissimilarities as marked in the Schedule 'A'. But the trial court by its order No. 55 dated 31st August, 1979 recorded that the petition was not moved and the same be kept with the record. 28. Not only the petitioner did not oppose the appointment of the Commissioner but after the submission of the report by the Commissioner did not file any objection to the report. The defendant No. 1 had prayed that it may be allowed to examine the Pleader Commissioner as a witness. The Court below by its Order No. 60 dated 15th November, 1979 observed that the Commissioner was appointed at the plaintiff's instance and it was the plaintiff who was required to examine the said Commissioner to have his report and proceedings admitted into evidence. Thereafter, on 10th January, 1980, Sri Sudhamoy Gautom, the Commissioner, was examined and cross-examined and his report and proceedings were marked as Exts. 17 and 18 without objection. We may observe that there is no substance in the submission made on behalf of the defendant No.1 that the Court below had committed any error by considering the said report of the learned Commissioner, Sri Sudhamoy Gautom. We have already pointed out that the defendant No. 1 had neither opposed the appointment of the said Commissioner nor had filed any objection to his report which was marked as exhibits without objection. Therefore, the defendant No. 1 cannot object to the admissibility of the said report as evidence. We have already pointed out that the defendant No. 1 had neither opposed the appointment of the said Commissioner nor had filed any objection to his report which was marked as exhibits without objection. Therefore, the defendant No. 1 cannot object to the admissibility of the said report as evidence. But it was certainly open to the defendant No.1 to make its submission about the evidentiary value of the said report and whether or not the same establishes that the defendant No. 1 substantially copied the story, scenario and dialogue of the film, SAHAR THEKEY DUREY produced by the plaintiff. 29. In our view, at this stage the defendant No.1 who never objected in the trial court either to the appointment of Sri Gautom as the Commissioner or had filed any objection to his report, can urge about the competence of Sri Gautom to act as the Commissioner. 30. There is also no substance in the contention of Mr. Dutt that the opinion expressed in his report by Sri Sudhamoy Gautom was not solely his own. Sri Gautom in course of his examination-in-chief had stated that the proceeding was written to his direction by his brother, Sri Nirmalendu Gautom, when the films are being screened. The dictation was correctly recorded. He also stated that the final report wag written by his sister in consultation with his draft. In other words, the proceeding and the final report were respectively in the handwriting of the brother and the sister of the learned Commissioner. But there was not even any suggestion on behalf of the defendant No. 1 in course of the cross-examination of the defendant No. 1 that P.W. 7 did not dictate the proceeding to his brother or that the final report did not embody solely his opinion and views. The defendant No. 1 at no stage had even alleged that anyone else had interpolated his or her opinion in the proceeding and the report (Exts. 17 and 18). 31. The learned Commissioner by his report pointed out the alleged similarities and dissimilarities between the cinematograph film produced by the plaintiff and the film produced by the defendant No.1 and came to the conclusion that after seeing the end one would be convinced that the film produced by the defendant No. 1 was the very same film although the images might have been changed due to colours. 32. 32. Although we agree with the trial court that the above opinion of the learned Commissioner was a relevant piece of evidence, we are of the view that the issue ,regarding alleged infringement fromed by the trial court cannot satisfactorily determined solely on the basis of the said report of the learned Pleader Commissioner. We are also fully aware of the fact that the defendant No. 1 was somewhat negligent in not taking necessary steps during the pendency of the Commission work and also after the learned Commissioner submitted his report. But the Supreme Court in R. G. Anand's case (supra), at page 1627 indicated that "one of the surest and the safest test is to see if the reader, spectator or the viewer after having read or seen both the works is clearly of the opinion that he gets an unmistakable impression that the subsequent work appears to be a copy of the original." Therefore, practically solely on the basis of the Commissioner's report, we are reluctant to reach any conclusion about the probable impression of the 'average viewer and spectator who might see the two films. We are of the opinion that in the interest of justice and for deciding the case in accordance with law, the parties may be given further opportunities to adduce evidence in order to enable the Court to decide whether the audience are likely to get an impression that the second film produced by the defendant No. 1 was substantially a copy of the first. 33. Our attention has been drawn to the following course adopted by the Supreme Court in R.G. Anand's case (supra), In order to test the correctness of the finding of the trial court, the learned Judges of the Supreme Court got the play read to them by the plaintiff in the presence of Counsel for the parties and the learned Judges had also seen the film which was screened in a auditorium. Fazal Ali, J. in paragraph 47 of his judgment mentioned the said facts and observed that the same were done merely to appreciate the judgment of the trial court and the evidence led by the parties and was not at all meant to be just a substitute for the evidence led by the parties. Fazal Ali, J. in paragraph 47 of his judgment mentioned the said facts and observed that the same were done merely to appreciate the judgment of the trial court and the evidence led by the parties and was not at all meant to be just a substitute for the evidence led by the parties. Fazal Ali, J. in his judgment had proceeded to give the summary of the play and the film and their themes and, thereafter out of the points of similarity and dissimilarity between the play and the film. 34. Therefore, we propose to remit the case back, inter alia for again determining whether the copyright of the plaintiff in his film, SAHAR THEKEY DUREY has been infringed. The Commissioner's report and the other evidence adduced in the case would remain as evidence on record. The Court would be at liberty to allow the parties to adduce further evidence in respect of the said question of alleged violation of the plaintiff's copyright. The Court below also would be at liberty to direct the parties to screen the two films so that the same may be viewed by the learned Additional District Judge himself and also by the learned law years of the two parties. In case, the learned Additional District Judge attends screening of the two films, he would keep on record his impressions about the two films. Upon fresh consideration of the, evidence the Court below will again decide the above point in accordance with law. 35. We may now proceed to consider whether the Trial Court was justified in refusing the plaintiff's prayer for permanent injunction and in granting a decree for damages in preliminary form in favour of the plaintiff. According to the learned Additional District Judge, in the instant case, the Court in its discretion ought to refuse equitable relief by way of injunction because if the same is issued, the defendant No. 1 would suffer irreparable loss and damages. The plaintiff may, on the other hand, be sufficiently compensated monetarily. In the opinion of the learned Additional District Judge it is fit and proper that the plaintiff should get a decree for damages provisionally for Rs. 500/-. 36. The plaintiff may, on the other hand, be sufficiently compensated monetarily. In the opinion of the learned Additional District Judge it is fit and proper that the plaintiff should get a decree for damages provisionally for Rs. 500/-. 36. The trial court has not decided the above point in accordance with law and in our view, without fully considering the relevant principles of law applicable, the learned Additional District Judge has held that even if the defendant No.1 had infringed the plaintiff's copyright in the said film, the plaintiff would not be entitled to any remedy by way of permanent injunction. The learned Additional District Judge relied upon the decision of the Madras High Court in (5) R. M. Subbiah and Anr. v. N. Sankaran Nair and Anr., AIR 1979 Mad. 56 . The said decision is not, however, apposite because the same dealt with the question of granting temporary injunction under Order 39 Rules 1 and 2 of the Code for a suit for infringement of the copyright. 37. In case, there had' been an infringement of the plaintiff's copyright within the meaning of section 51 of the Copyright Act, 1957, the plaintiff as the owner of the copyright would be entitled to obtain civil remeides. Section 55(1) of the Copyright Act, 1957 has laid down that where copyright in any work has been infringed, the owner of the copyright shall except as otherwise provided by the said Act, be entitled to all such remedies by way of injunction, damages, accounts and otherwise as are or may be conferred by law for the infringement of a right. The proviso to section 55(1) has further laid down that in case the defendant proves that at the date of the infringement he was not aware and no reasonable ground or believing that copyright subsisted in the work, the plaintiff shall not be entitled to any remedy other than an injunction in respect of the infringement and a decree for whole or part of the profits made by the defendant by sale of the infringing copies as the Court may in the circumstances deem reasonable. Thus, sub-section (1) of section 55 has firstly prescribed that the owner whose copyright has been infringed is entitled to remedies prescribed for infringement of a right. Thus, sub-section (1) of section 55 has firstly prescribed that the owner whose copyright has been infringed is entitled to remedies prescribed for infringement of a right. In case the defendant without having any knowledge or any reasonable ground for believing that the plaintiff had a subsisting copyright in respect of his work, infringes plaintiff's such copyright, then the plaintiff in an action against the defendant for such infringement is entitled to relief by way of injunction and a decree for the whole or a part of the profits made by the defendant. Although section 55 of the Copyright Act, 1957 has not laid down how the Civil Court has to exercise its discretion in this regard, the principles applicable thereto would be the principles which have long been settled in such matters. In case the defendant without having any knowledge or reasonable ground for believing that the plaintiff in an action against the defendant for such infringement is entitled to relief by way of injunction and a decree for the whole or a part of the profits made by the defendant. Although section 55 of the Copyright Act, 1957 has not laid down how the Civil Court has to exercise its discretion, the principles applicable thereto have been long settled. 38. Copinger and Skone James on Copyright (11th Edition), in Chapter-X paragraph 555. pages 234-35 have stated "the first and most usual remedy for infringing of copyright is by means of an injunction, but this remedy is not open to an architect suing for infringement of a work of architecture, if construction of the infringing building has been actually commenced. An injunction may be either interlocutory-that it, one granted prior to the trial and only until that trial, or further order-or final." 39. In Halsbury's Laws of England (4th Edition), Vol. 9 paragraph 942 it has been stated that the general principles upon which injunctions are granted for the protection of copyright do not differ from those upon which they are granted for the protection of other property. The nature of copyright however makes an injunction a peculiarly suitable, and indeed, the normal remedy. In foot-note (2) to paragraph 942 reference has been made to Fernald v. Jay Lewis Productions Ltd., 1953 Times, 6th February. In paragraph 945 of Halsbury's Laws of England (4th Edition), Vol. The nature of copyright however makes an injunction a peculiarly suitable, and indeed, the normal remedy. In foot-note (2) to paragraph 942 reference has been made to Fernald v. Jay Lewis Productions Ltd., 1953 Times, 6th February. In paragraph 945 of Halsbury's Laws of England (4th Edition), Vol. 9 it has been further stated that a plaintiff is entitled to a final injunction although he has not proved actual damage and although the infringement complained of is only a threat, provided that it is clearly established, that when published, the work complained of will be an infringement. The Court must, however, be satisfied that damage is likely to cause to the plaintiff. A final injunction will not be refused merely because the plaintiff has known of the infringing work for some years and has been sent copies of it, or because it is said that he must have known that the defendant would spend money in bringing out a new edition in the belief that, it would not be interfered with, or because he had taken no proceedings in respect of similar infringements of his copyright in the past. It is not an answer for the defendant to say that the plaintiff has long ceased to publish the work. 40. We conclude that the Court below did not properly consider all the aspects of the matter before refusing the plaintiff's prayer for permanent injunction. Therefore, the same also requires to be decided afresh in accordance with law. We have already indicated that the case should be remitted back to the trial court for a fresh adjudication whether or not the defendant No.1 had infringed the plaintiff's copyright in the film, SAHAR THE KEY DUREY. Therefore, the question what relief, if any, ought to be granted to the plaintiff should be also remitted back. In the event, it is found that the defendant No. 1 did not infringe the plaintiff's copyright, there would be no further question of deciding whether the damages or injunction would be the appropriate relief in the case. 41. We, accordingly, dispose of the two appeals in the following manner :- We allow the two appeals in part and set aside the judgment and decree of the learned Additional District Judge. 41. We, accordingly, dispose of the two appeals in the following manner :- We allow the two appeals in part and set aside the judgment and decree of the learned Additional District Judge. We remand the case for fresh decision in accordance with law on the evidence already on record and on further evidence, if any, adduced by the parties only on the point of alleged infringement of the copyright in the instant suit claimed by the plaintiff. The trial court shall decide again in accordance with law what relief, if any, the plaintiff would be entitled to. After remand, the trial court shall proceed on the basis that the plaintiff was the owner of the copyright of the film, SAHAR THE KEY DUREY, produced by it, including its scenario and dialogue. There will be no order as to costs. Let the records be sent down immediately. Sharma, J.: I agree. After we deliver our judgment, the learned Advocates for both parties prayed for certificates under Article 133 read with Article 134(A) of the Constitution. In our view, these cases do not involve any substantial question of general importance. Therefore, we are unable to opine that the questions involved in these two appeals need to be decided by the Supreme Court. Prayers for granting certificates under Article 133 of the Constitution are accordingly rejected.