Mahesh Chandra ( 1 ) BY this order I propose to disposeof FA. 7181186 file under Order XXXIX Rule I read withsection 151 of the Code of Civil Procedure, for grant of adinterim injunction restraining the defendants, their agents, servants, dealers, representatives or nominees from printing, binding, publishing, offering for sale or selling, despatching the 26thedition of Indian Penal Code by Rattanlal and Dhirajlal andto recall back the stocks of the said book sold in Delhi andoutside and surrender the same to the plaintiff and also I. A. No. 516187 filed under Order XXXIX Rule 4 read with Secton 151 of the Code of Civil Procedure by defendants 1 and 2for vacating the ad-interim ex-parte injunction issued on 2 9/12/1986 and the dismissal of application I. A. 7181186. I have heard the learned counsel for the parties and have gonethrough the file and after giving my considered thought lothe matter before me I have come to the following findings. ( 2 ) THE facts giving rise to these I. As are that the plaintiffhad filed a suit for permanent injunction and accounts againstdefendants 1 to 4 and I. A. 7181186 for ad-interim injunctionwas filed in the said suit and M. K. Chawla, J. vide orders dated29th Deember 1986 had restrained the defendants, their agentsand servants from despatching the 26th edition of the Indianpenal Code by Rattanlal Dhirajlal to any dealer or offering themfor sale and in consequence this fresh I. A. 516/87 has been, filed by defendants 1 and 2. ( 3 ) IT is settled law that in granting or not granting adinterim injunction three factors have to be kept in view, namely,the establishment of a prima facie case, the balance of convenience between the parties, and whether if the interim injunction is not issued will cause irreparable injury to theapplicant. The position could be no different in cases of infringement of copyrights and passing off. Thus, in order toentitle the ad-interim injunction it would be necessary in thefirst instance for the plaintiff to establish that it has got apnma facie case and let us now consider if it has one. The position could be no different in cases of infringement of copyrights and passing off. Thus, in order toentitle the ad-interim injunction it would be necessary in thefirst instance for the plaintiff to establish that it has got apnma facie case and let us now consider if it has one. ( 4 ) THE admitted case of the parties is that the copyrightwith regard to books, namely, Law of Crimes (Lawyers Edition), Indian Penal Code, the Law of Torts, Indian Evidenceact, the Code of Criminal Procedure, and the Criminal Casesof Bombay High Court written by late Rattanlal Ranchoddasvakil with late Dhirajlal Thakore vested in one Mrs. Marym. R. Vakil by reason of consent terms dated 15/07/1980in Bombay High Court in Petition No. 576175 and said Mrs. Mary Vakil granted a licence in regard to above-mentionedfirst five publications to defendant No. 2 on 6/10/1980but some disputes arose between them which resulted in civilsuit No. 2182 being instituted in the Court of District Judge,nagpur, by defendant No. 2 which in turn resulted in a compromise/consent decree recorded on 12/07/1984 wherebydefendant No. 2 acquired complete rights with regard to fourbooks, namely, Indian Penal Code, Law of forts, Indianevidence Act and the Code of Criminal Procedure while thefifth book Law of Crimes (Lawyers Edition) continued tovest exclusively in above-mentioned Mrs. Mary Vakil, that inbetween the, plaintiff had negotiated and entered into an agreement dated 8/10/1982 with above-said Mrs. Maryvakil for exclusive sale and transfer of all rights including copyrights with regard to above-mentioned Law of Crimes whichagreement was later on supplemented on 5/02/1986and now the plaintiff is proposing to publish 23rd Edition of thelaw of Crimes while defendants 1 and 2 are publishing 26thedition of the Indian Penal Code. Maryvakil for exclusive sale and transfer of all rights including copyrights with regard to above-mentioned Law of Crimes whichagreement was later on supplemented on 5/02/1986and now the plaintiff is proposing to publish 23rd Edition of thelaw of Crimes while defendants 1 and 2 are publishing 26thedition of the Indian Penal Code. So far so good, but thedispute which have arisen between the parties is that according to the plaintiff, the defendants 1 and 2 were publishing 26thedition of the Indian Penal Code in such a fashion as to givean impression that it is a Lawyers Edition of Commentary onthe Indian Penal Code rather than a Students Edition as itoriginally stood and thereby the copyrights of the plaintiff werebeing infringed by misrepresentation that the book to be published by the defendants is intended for lawyers use and thesaid 26th edition of Indian Penal Code is being deliberatelypassed off as Lawyers Edition for use by the lawyers and notby the students and is a colourable imitation of the classiclawyers Edition of the Indian Penal Code in the name of Lawof Crimes and consequently the suit for permanent injunctionand accounts and this interim application under Order XXXIXRule I of the Code of Civil Procedure. The contention of thedefendants on the other hand is that the 26th Edition of theindian Penal Code by Rattanlal is being published in exerciseof the rights transferred to them by Mrs. Mary Vakil by agreement above-mentioned and without infringing any copyrights ofhe plaintiff or in any manner passing it off as Lawyers Editionand it has been prayed that the interim injunction should bevacated and the application of the plaintiff should be dismissed. ( 5 ) IT would be appropriate to n-tention at the very outsetthat the learned counsel for the plaintiff has conceded at thebar that he has no dispute with the rights of defendants 1 and 2to publish enlarged edition of the Indian Penal Code by Rattanlal. It has further been conceded by him that so far as thetext of the 26th edition of the Indian Penal Code by Rattanlalbeing published by the defendants is concerned, he has nocomplaint and the same tits in within the agreement betwenmrs. Mary Vakil and defendant No. 2 and the said contentsdo not infringe upon the. copyrights of the plaintiff. It has further been conceded by him that so far as thetext of the 26th edition of the Indian Penal Code by Rattanlalbeing published by the defendants is concerned, he has nocomplaint and the same tits in within the agreement betwenmrs. Mary Vakil and defendant No. 2 and the said contentsdo not infringe upon the. copyrights of the plaintiff. Even otherwise a photostat copy of the said compromise has been filed bythe defendants and a perusal of page 7 thereof would show thatmrs. Mary Vakil had transferred to defendants 1 and 2 all herrights of further "publications, reprinting, revision, printing,publishing, distribution, advertising, selling in India and abroad"which also includes "the rights to revise, enlarge, abridge, adapt,translate or modify" in respect of the four books including theindian Penal Code (Students Edition ). The main thrust ofsubmission of the leanied counsel for the plaintiff is that inbringing out 26th edition of the Indian Penal Code the defendants have changed its size from demi to royal and also raisedthe price to Rs. 180 and furthermore the jacket of the26th edition has also been given such a shape as to suggestthat it was meant for the lawyers rather than for the students and thus the rights of the plaintiff have been infringed andattempt by the defendants in passing off has been made. Thelearned counsel for the defendants has drawn my attentionto deed of assignment dated 12/07/1984 whereby Mrs. Mary Vakil had transferred her copyrights to defendants1 and 2 in the Indian Penal Code and my attention has beendrawn in this behalf to para 4 of the said deed wherebydefendants 1 and 2 had been transferred and conferred "therights to revise, enlarge, abridge and shorten for shorter editions, summarise, adapt, translate or modify" the said Indianpenal Code". He has similarly drawn by attention to para 8of the said deed whereby "use of paper, printing, reprinting,publishing, advertising, binding, fixation of price, pre-publication price, number of copies to be printed or reprinted, get up,use of particular paper or print, revision of further editions,of translations and adaptations, abridgements etc. " were left to the entire descretion of defendants 1 and 2. " were left to the entire descretion of defendants 1 and 2. Certainly oncethese rights have been transferred and conferred and assignedto the defendants it would- be difficult for the plaintiff to findfault with the action of the defendants in bringing out the 26thedition of the Indian Penal Code in the form, shape, get upand at the price it is proposed to by them. All this is beingdone by the defendants in exercise of the rights vesting inthem. As regards the contention of the learnedcounsel forthe plaintiff that the original Students Edition of the Indian"penal Code was intended for only the students, the learnedcounsel for the defendants has drawn my attention to an advertisement in the Bombay Law Reporter, Volume LIV,with regard to 20th edition of the said book wherein it hasbeen mentioned that "it will be useful to the Bench and thebar. . . . . . . . . " and it has also been mentioned therein that thesame "can be had of book sellers throughout India, Pakistan,burma and Ceylon". It has also been urged by the learned counsel for the plaintiff that it has been mentioned in the jacket thatthe Indian Penal Code is a legal classic" and "it is themost original, authentic, dependable. . . . . . . . , its vast readership that covers judges, lawyers, police officers, administrators,law teachers and academicians, students, research scholars" andonumental work" and as such it is likely to confuse thereaders. I am afraid the mere user of these words inadvertising their book would not tantamount to either passingoff or infringing copyrights of the plaintiff. Might be it isan exaggeration but that by itself does not lead us to theconclusion that it infringes the copyrights of the plaintiff. Furthermore keeping in view the fact that these books are to beread by persons no less than judges, lawyers police officer, administrators, law teachers and academicians, the possibility oftheir being misled or decived too far fetched and cannotbe. accepted. Similar is the position with regard to mentionof the book in one of the advertisements as "a great hookof great authors", or "most prestigious publication" or "mustfor everyone concerned with criminal law and-justice". Solong as the defendants are doing what is lawful for themlender the agreement with Mrs. Mary Vakil it would bedifficult to accent that th defendants, are assing of theirbook. Solong as the defendants are doing what is lawful for themlender the agreement with Mrs. Mary Vakil it would bedifficult to accent that th defendants, are assing of theirbook. as that of the plaintiff of they are infringing the copyrightsof the plaintiff. This also has been urged that there aredifferent channels of distribution of he two books but reference to advertisement in Volume LIV of the Bombay Lawreporter would show that even a students edition was channeled through books sellers throughout India, Pakistan andceylon and consequently this ground also does not held muchwater. The learned counsel for the plaintiff has further submitted that real apprehension is that alter putting this26th edition in royal size a the market the defendants wouldalso put a demiedition in the market. But it would be wrongand unsafe to work, on that hypothesis m disposing of this application. It may be mentioned here that the learned counsel forthe plaintiff has not been able to invite my attention to any placewhere any reference has been made to the "law of Crimes" byrattanlal in this book or m the advertisements or pablicity ofthis book. A. perusal of the agreement entered iato between theplaintiff and Mrs. Mary Vakil would show that the plaintiff verywell knew of the terms of settlement and conpromise betweendefendants 1 and. 2 and Mrs. Mary Valal and ths plaintiff has entered into that agreement in 1986 with his eyes open as regardsthe rights of the defendants in the Indian Penal Code and hecannot now have any camse for complant. ( 6 ) FROM whichever angle 1 consider the matter before mei do not find either any probability of deception or passing ofin the act of the defendants publishing 26th Edition of the. Indianpenal Code. I would like to advert to the question of enlargement of the size of the book. There has developed further caseslaw on the Indian Penal Code and consequently some enlargement of the size is bound to take place and with the enlargementof size and the rise in cost of paper and print ng the price is alsobound to go up and coasequeady no fault can be fwind withthe acts of the defendants on that score either. There has developed further caseslaw on the Indian Penal Code and consequently some enlargement of the size is bound to take place and with the enlargementof size and the rise in cost of paper and print ng the price is alsobound to go up and coasequeady no fault can be fwind withthe acts of the defendants on that score either. It may be mentioned here that books OB legal subjects have to be consideredon different footing than the other general books and unless abook on legal subject is up-to-date with latest case law it wouldfetch practically no market and would not be acceptable to eventhe students of law much less to- other person? concerned withadministration of justice including the lawyers fraternity. Tirosevery new edition of a legal work would aecessarily be an ehlarged edition if it has to find acceptability of its read s. Inthese circumstances, if the contents of 26th edition of Indianpenal Code by Rattanlal swell, it is bound to result in thechange in the size and format and also the price thereof andconsequently plaintiff can have no ground to assai the publication and sale of 26th edition of the Indian Penal Code by Rattanlal being brought out by defendants 1 and 2. Judicial noticecan be taken of the fact that cost of printing, editing as also costof paper have gone up considerably since the publication of25th edition of Indian Penal Code by Rattanlal and consequently there is nothing abnormal in the rise in the price thereof andno fault can be found the published price of the 26th editionthereof. ( 7 ) FROM my discussion it emerges that defendants 1 and 2 havea right to publish an enlarged edition of Indian Penal Code byrallanlal and have the liberty to change its size and also theprice and enlarge the contents thereof and this is precisely whatis sought to be done by these defendants in bringing out 26thedition thereof. Copyright is the exclusive right to do and toauthorise others to do and restrain others from doing certain actsin relation to a literary work which, inter alia, indudes workson legal subjects and nothing would be accepted as infringementof this right if what is sought to be done by the defendants isin exercise of a similar right vested in them under a contract ofassignment with the person who possesses that right. It wouldbe no infringement of copyright when the defendan: has beenconferred a right to bring out further editions whether in enlarged form or otherwise? and assignee of a copyright work hasthe right to publish the work as he pleases. More so when thereis no express or implied term controlling the form of publication. Strange as it may appear, the assignor in this case i. e. Mrs. Maiy Vakil has not been impleaded as a defendant in this casewhich indicates that the plaintiff does not challenge her, rightto assign the copyright in the Indian Penal Code to defendants1 and. 2. Where the plaintiff does not implead the assignor as aparty and does not challenge the assignor s right to assign copyright of a particular book in themanner he has done it, it wouldnot be open to the plaintiff to restrain the defendants-assigneefrom reproducing or republishing that books so long as theassignee does so within the framework of the assignment agreement, more so when the assignor happens to be the same personwho has assigned similar copyrights in respect of some other bookto the plaintiff. There could be no passing of either unless thething said to be passed off resembles the thing for which it is beingpassed off. It cannot be accepted that in the instant case only theplaintiff has a right to publ- sh books in royal size. There is nothing to suggest that the plaintiff has registered design eitherin his favour of the book jacket. There can be no dispute thatcopyright is transferable by assignment and defendants 1 and 2have been assigned copyrights in respect of the Indian Penalcode by Rattanlal by Mrs. Mary Vakil and to the knowledge ofthe plaintiff. In consequence, it cannot be prima facie acceptedthat the act of defendants 1 and 2 aims at deception or mis-representation much less passing off and, therefore, it would be difficult to hold that the plaintiff lias established any prima faciecase in its favour. ( 8 ) ONCE this Court conies to the contiusion that the plaintiff has failed to establish a prima facie case, balance of convenience would lie in favour of non-grant of ad-interim injonctionrather than in grant thereof otherwise irreparable injuly is likelyto occasion to the defendants. ( 8 ) ONCE this Court conies to the contiusion that the plaintiff has failed to establish a prima facie case, balance of convenience would lie in favour of non-grant of ad-interim injonctionrather than in grant thereof otherwise irreparable injuly is likelyto occasion to the defendants. The defendants must have alreadyinvested a considerable amount in preparation of the 26th edition and its advertisement and if the ad-interim injunction already granted is permitted to continue farther it would result inconsiderable loss to the defendants which may. even entailloss of reputation in failing to bring out the promised monumental work. In view of my discussion and findings above, Ihold that the plaintiff is not entitled to the ad-interim injunctionprayed for and the application I. A. 7181/86 is liable to be dismissed and consequently I. A. 516^87 deserves to be allowed. ( 9 ) IT would be appropriate to mention here that my observations above are solely for the purposes of disposal of these 1. As. and have no bearing on the merits of the case which would bedecided on the evidence led before the Court. ( 10 ) FOR my discussion and findings above, I. A. 7181186 isdismissed and the ad-interim, injunction already granted videorders dated 29th Etecember 1986 is vacated anil consequentlyi. A. 516187 is allowed. No order as to costs.