Judgment ( 1 ) THE unsuccessful plaintiff in the Court below in the suit claiming copyright in the Literary work of late Shri. V. S. Khandekar is the appellant herein. The substantive First Appeal is directed against the judgment and decree dated 3-2-2001 in Civil Suit No. 2 of 1998 passed by the learned Third Additional district Judge, Pune, whereby the suit filed by the appellant came to be dismissed, whereas Appeal from Order is against the order dated 20-2-2002 passed below Exh. 5 in Copyright Suit No. 2 of 2002 by the Vth additional District Judge, Pune, whereby interim injunction came to be refused. The parties are same, issues involved are identical, facts are common, so a single judgment will dispose of both appeals. Hereinafter parties will be referred to as arrayed in the original suits. The Factual Matrix ; the tactual matrix giving rise to the present appeals in nutshell can be summarised as under: ( 2 ) M/s. Deshmukh and Company publishers (P) Ltd. , Pune, a leading publisher of books; carrying on business at Pune, filed a suit under Section 62 of the Copyrights Act, 1957, inter alia, claiming - (i) a declaration that the plaintiff (appellant herein) has a subsisting copyright in publication of 14 books mentioned in the Schedule annexed to the plaint; with (ii) negative declaration that none of the defendants has any right to print or publish the same during the subsistence of the copyright in its favour; with (iii) a further decree for permanent injunction; to restrain the respondents - defendant Nos. 2 to 6 from dealing with, transferring, destroying or printing or publishing or otherwise authorising others from publishing or printing or selling or otherwise dealing with the books listed in the plaint Schedule in any manner whatsoever. In addition, the plaintiffs have also claimed compensation in the sum of Rs. 10,000/ -. ( 3 ) THE respondent No. 1 herein is also a publisher of the books, whereas the respondent Nos. 2 to 6 are the legal heirs of well known Marathi literary figure late Shri. V. S. Khandekar, who had won Gyanpeeth award" for his literary work; crowned with a very distinguished honour for his literary work in the Marathi language. He was a person of very high repute. ( 4 ) THE plaintiffs case is that Shri. Ram Jayawant Deshmukh was a publisher based at Pune. He was a person of very high repute. ( 4 ) THE plaintiffs case is that Shri. Ram Jayawant Deshmukh was a publisher based at Pune. He was carrying on his proprietary business of publishing books in his own name. He had published books/ literary work of late Shri. V. S. Khandekar for several year since 1939 or so. On 19-5- 1974 late Shri. V. S. Khandekar entered into a written agreement with Late Shri. R. J. Deshmukh under which exclusive publishing rights of his books were given to him. Shri. V. S. Khandekar left for heavenly abode on 2-9-1976 leaving behind his 'will' under which another literary celebrity and well known author Shri. Ranjeet Desai was appointed as Executor of his Will. ( 5 ) THE respondent Nos. 2 to 6 herein, legal heirs of late V. S. Khandekar; after his death had raised a dispute in the company of Shri. Ranjeet Desai, an executor of the Will of late Shri. V. S. Khandekar, who had strained relations with late Shri. Ram jaywant Deshmukh. As a result, the first litigation by way of civil suit being Civil Suit no. 1174 of 1981 came to be filed against Shri. Deshmukh and his proprietorship firm (At the relevant time plaintiff-Company was not in existence) in the Court of Civil Judge, Junior division, Kolhapur, alleging that heirs of Late shri. V. S. Khandekar had revoked the said agreement dated 19-5-1973 and claimed declaration to that effect and also claimed relief of injunction against Shri. R. J. Deskhmukh. Shri. Deshmukh expired on 2- 6-1985. Mrs. Sulochana Deshmukh was brought on record as his legal representative. The said suit was dismissed. However, certain directions to delete some part from the autobiography of Shri. V. S. Khandekar, eka Panachi Kahani" were given by the trial court and permanent injunction to that limited extent was issued. ( 6 ) THE aforesaid Decree passed in civil Suit No. 1174 of 1981 was assailed in regular Civil Appeal No. 40 of 1989 filed in the District Court at Kolhapur. ( 6 ) THE aforesaid Decree passed in civil Suit No. 1174 of 1981 was assailed in regular Civil Appeal No. 40 of 1989 filed in the District Court at Kolhapur. The said appeal was partly allowed by the learned additional District Judge, Kolhapur by judgment and order dated 11-2-1991 under which the defendants were restrained by perpetual injunction from printing, and/or publishing or getting printed and/or published sixty books of late Shri. V. S. Khandekar since those books were not published during the stipulated time frame prescribed in the agreement however, with respect to 13 books which were published within time frame permanent injunction to print and publish came to be refused. The said suit with respect to other twelve books came to be dismissed. So far as another book 'eka Panachi Kahani' is concerned, the decree of the trial Court was confirmed. In other words, it was held that the defendants had lost their right to publish 60 books except twelve + one mentioned in the decree. The present dispute relates to the nature of rights of the publisher with respect to the said excluded twelve books together with one more book viz. "sonerin swapna Bhangaleli" which does not find place in the agreement dated 19-5-1973. ( 7 ) AS per plaint allegations, Late shri. R. J. Deshmukh, as per his Will had bequeathed all his property to his wife Mrs. Sulochana Deshmukh, who later on, formed and incorporated the plaintiff company in the year 1989 and transferred all her publishing rights in the books of late Shri. V. S. Khandekar in favour of the plaintiff Company vide written document dated 12-3-1996. Based on this document, the plaintiff- appellant herein claimed exclusive publishing rights with respect to fourteen books referred to hereinabove. In order to assert their right they filed a civil suit to claim reliefs prayed therein, the details of which are mentioned in para-2 (supra ). ( 8 ) THE respondent No. 2 (defendant no. 1) Anil Mehta, who is the proprietor of defendant No. 7 - firm, is also engaged in publishing business and claimed to have obtained Power of Attorney from defendant nos. 2 to 6 to represent their interest in the suit. ( 8 ) THE respondent No. 2 (defendant no. 1) Anil Mehta, who is the proprietor of defendant No. 7 - firm, is also engaged in publishing business and claimed to have obtained Power of Attorney from defendant nos. 2 to 6 to represent their interest in the suit. He tried to publish and print 14 books set out in the schedule to the plaint i. e. the books spared or excluded in the judgment and decree passed in Civil Suit No. l 174 of 1981 by the learned Civil Judge, Junior Division, kolhapur, as modified in Regular Civil appeal No. 40 of 1989 by the learned additional District Judge, Kolhapur. ( 9 ) ON being summoned, the defendants appeared in the suit. Anil Mehta and Mehta Publishing Company, defendant nos. 1 and 2 respectively filed their written statement. The very same written statement was adopted by the other defendants vide their purshis dated 27-4-2000 (Exhibit 36 ). They denied rights claimed by the plaintiff in literary work of late Shri. V. S. Khandekar. It was denied that the plaintiff inherited or received any such right either from late Shri r. J. Deshmukh or his wife late Mrs. Sulochana Deshmukh as pleaded in the plaint. The interpretation on the agreement dated 19- 5-1974 put by the plaintiff was challenged on various grounds. It was also contended that late Shri. R. J. Deshmukh or his wife or person claiming through them did not fulfil their obligations flowing from the agreement dated 19-5-1973. That they not only failed to pay amount of royalty to the heirs of late shri. V. S. Khandekar or to the executor of his Will, as agreed but also failed to supply copies of the books on its publication as agreed and did not even render any account about such publication work. The defendants thus prayed for dismissal of suit. ( 10 ) THE trial Court was pleased to frame issues relevant to the pleadings and permitted the parties to lead their respective evidence. ( 11 ) ON the basis of the documentary and oral evidence available on record, considering various clauses of the agreement trial Court was pleased to hold that the said agreement had conferred upon the publisher late Shri. R. J. Deshmukh a mere licence to publish books written by late Shri. V. S. Khandekar. ( 11 ) ON the basis of the documentary and oral evidence available on record, considering various clauses of the agreement trial Court was pleased to hold that the said agreement had conferred upon the publisher late Shri. R. J. Deshmukh a mere licence to publish books written by late Shri. V. S. Khandekar. Trial Court in support of its findings mainly relied upon judgment of the m. P. High Court in the case of Mishra bandhu Karyalaya Vs. Shivratanlal koshal (AIR 1970 M. P. 261 ). The trial court in unequivocal terms held that the agreement in question was nothing but a simple licence granted to print and publish certain subject books on certain conditions as mentioned in the agreement subject as to the payment of royalty stipulated therein. The trial Court also relied upon the admission given by the publisher Shri. Deshmukh in one of the books of late Shri. V. S. Khandekar published by him known as Yayati on 6-7- 1976. The front page of the book carried following endorsement :- (All rights are with the author) the trial Court was, thus, pleased to hold that the plaintiff has failed to prove exclusive right to publish Marathi literature of late Shri. V. S. Khandekar with respect to 14 books mentioned in the plaint schedule based on agreement dated 19-5-1973. It was thus held that plaintiff was not entitled to a declaration and permanent injunction as prayed for in the said suit. The suit accordingly came to be dismissed. ( 12 ) ONE more litigation tagged with this appeal also needs brief reference. The plaintiff appellant herein has also instituted one more litigation being Copy Right Suit no. 1 of 2002 in the District Court, Pune, for declaration and injunction. Declaration that the plaintiff-company (Appellants) as an assignee of Smt. Sulochanabai Deshmukh has absolute right to print and publish and published work together with unedited unpublished writings of late Shri. V. S. Khandekar and also prayed for permanent injunction pursuant to various prayer clauses incorporated in the suit. During the pendency of the suit, plaintiff-appellant moved an application for interim injunction (Exh. 5 ). On contest the trial Court vide its order dated 20-2-2002 was pleased to reject prayer for interim relief holding absence of prima facie case, balance of convenience and possibility of suffering any legal injury. During the pendency of the suit, plaintiff-appellant moved an application for interim injunction (Exh. 5 ). On contest the trial Court vide its order dated 20-2-2002 was pleased to reject prayer for interim relief holding absence of prima facie case, balance of convenience and possibility of suffering any legal injury. ( 13 ) BEING aggrieved by the aforesaid judgment and decree in Civil Suit no. 2/98, dated 3-2-2001, and the order of the trial Court refusing to grant prayer for injunction (Exh. 5) in Copy Right Suit No. 1/ 2002 vide order dated 20-2-2002, the appellant herein; has preferred these appeals to challenge the above verdicts of the trial Court delivered in both proceedings. Submissions ; ( 14 ) DR. Vircndra V. Tulzapurkar, learned Senior Counsel appearing for the appellant-original plaintiff, submitted that the document dated 19-5-1973 is a deed of partial assignment. That it is not a mere licence to print and publish books. In support of his contention, he has referred to and relied on following amongst other clauses of the agreement the gist of which is as under :- (i) right to publish books given to Shri. R. J. Deshmukh; (ii)if the books are not published within a period of five years that right will be reverted to the author; (iii) the author retains the right of translation or making film or play on the basis of said books, and (iv) after the death of Shri. R. J. Deshmukh, rights under the agreement would devolve as per his Will. According to him, clause (iv) supra providing for devolution of rights under the agreement as per his Will is sufficient to show that the rights given under the agreement were not mere personal rights but were heritable and transferable. According to him, above clause (iv) of the agreement is inconsistent with the concept of a licence. ( 15 ) DR. Tulzapurkar would further submit that copyright is a bundle of rights as enumerated in Section 14 of the Copyright act, and, therefore, there was no need to provide for various rights retained by the author in the agreement; if it was only a licence. According to him, section 18 of the act recognises the owner's right to assign copyright either wholly or partially. According to him, section 18 of the act recognises the owner's right to assign copyright either wholly or partially. In his submission, an assignment creates an interest of ownership in favour of the assignee, whereas, a license merely permits a licensee to do something which but for the licence would amount to violation of the owner's rights. In support of his submissions he relied upon the decisions in (i) British Actors Film co. Vs. Glover, (1918)1 KB 299 at p. 306 and (ii) Heap Vs. Barley, (1889)42 Ch. D. 461 at page 470. ( 16 ) DR. Tulzapurkar urged that mere use of the term "licensor or Licensee or licence" by itself does not determine as to whether or not the instrument is a licence. According to him, reservation of certain rights in the agreement, provision for reverting back to the author of the rights granted by the agreement show that the agreement is nothing but assignment and not a licence. He pressed into service various decisions viz. (i) messager Vs. British Broadcasting Co. Ltd. (1929 Appeal Cases 151); (ii) Loew's incorporate Vs. Littler and Ors. (1958 (2) all England Reports 200); (iii) Jonathan cape Ltd. Vs. Consolidated Press Ltd. (1954 (3) ALL ER 253) and (iv) Dharam dutt Dhawan Vs. Ram Lai Suri and Sons. (AIR 1953 Punjab 279 ). He also relied upon the decisions in (i) William Butler Yets Vs. Prof. Eric Dickson (AIR 1938 Lah 173) and (ii) Asia Publishing House Vs. John wyley and Sons (71 Bom. Law Reporter 777 ). ( 17 ) ON the second issue, Dr. Tulzapurkar would submit that the trial Court is clearly in error, inasmuch as, the decision in the earlier suit could never operate as constructive res judicata for the simple reason the issue as to whether the agreement was a copyright or a licence was not in issue in the earlier suit. In any event, the question as to whether or not Shri. R. J. Deshmukh was the owner by way of copyright; could not have been decided in the earlier suit as the said court had no jurisdiction to decide that question. Thus, he would submit that both the issues ought to have been answered in favour of the appellant and the suit ought to have been decreed with costs. Thus, he would submit that both the issues ought to have been answered in favour of the appellant and the suit ought to have been decreed with costs. ( 18 ) PER contra The learned Counsel appearing for the respondents while refuting the submissions made by Dr. Tulzapurkar urged that the agreement dated 19-5-1973 was nothing but a mere licence to publish books in favour of late Shri. R. J. Deshmukh. It was not an assignment of a copyright. While developing this submission the learned counsel for the respondents would submit that the entire plaint of the suit if perused would show that it nowhere raises a contention that the agreement in question is an assignment of copyright. In her submission, entire agreement is silent about the term 'copyright' as such, it is, required to be treated as a mere publishing licence; that too a conditional personal licence in favour of late Shri. R. J. Deshmukh. It did not create any permanent right in his favour. It was revocable at the wish and Will of the grantor. ( 19 ) ACCORDING to the learned counsel for the respondents, at no point of time, the intention of the parties to the suit agreement was to create any copyright in favour of late Shri. R. J. Deshmukh or his legal heirs. The learned Counsel for the respondents relied upon the decisions in (1) air 1970 M. P. 261 (para 22), (2) AIR 1938 lahore 173, and (3) AIR 1970 M. P. 261 (para 16) in support of her submission. ( 20 ) THE learned Counsel for the respondents would further contend that if the intention of the parties to the agreement is gathered, it is clear that payment was to be made with the publication of each edition by sharing the profit by way of royalty by way of consideration, as such there was a continuous obligation on the part of the publisher to make payment of royalty with obligation to render accounts even to the heirs of late Shri. V. S. Khandekar. In this view of the matter, she submits that the agreement in question has to be construed merely as licence to publish books and no more. In support of this submission, reliance was placed on clauses 5 and 6 of the agreement. In this view of the matter, she submits that the agreement in question has to be construed merely as licence to publish books and no more. In support of this submission, reliance was placed on clauses 5 and 6 of the agreement. ( 21 ) LEARNED Counsel for the respondents further contends that para 3 of the agreement provides that, if Shri. R. J. Deshmukh does not publish books within a period of five years or refuses to publish, then, the publishing rights would revert back to heirs is of late Shri. V. S. Khandekar. This term, in the submission of the learned Counsel, had only given publishing rights in favour of late shri. R. J. Deshmukh. She would further submit that late Shri. R. J. Deshmukh himself during his lifetime had admitted that he did not have copyright, which in her submission, is clear from the first page of book "yayati" published by him on 6-7-1976, which specifically says that "all rights reserved with the author". ( 22 ) THE learned Counsel for the respondents has also pressed into service para 10 of the written statement (Exh. 71) which was filed by Shri. R. J. Deshmukh in kolhapur Court in Regular Civil Suit no. 1174 of 1981 and submitted that even according to Shri. Deshmukh, late Shri. Khandekar had granted only right to print and publish his literature during his life time. In her submission, this can also be inferred from the averments made in para (2) of Civil appeal No. 1280 of 2001 and para (16) of the affidavit in rejoinder filed by Shri. R. J. Deshmukh in the said appeal. In other words, according to the learned Counsel, even Shri. R. J. Deshmukh during his life time never claimed any copyright or exclusive licence in his favour. According to her, the learned additional District Judge, Kolhapur, has clearly recorded a categorical finding in para (43) of his judgment (Exh. 87) that "no copyright was transferred in favour of Shri. R. J. Deshmukh in terms of the agreement". In her submission, this categorical finding is very much binding on both the parties and operates as res judicata between them. 87) that "no copyright was transferred in favour of Shri. R. J. Deshmukh in terms of the agreement". In her submission, this categorical finding is very much binding on both the parties and operates as res judicata between them. ( 23 ) THE learned Counsel for the respondents would further contend that assuming but not admitting that the suit agreement had created copyright in favour of late Shri. R. J. Deshmukh, since the company did not apply tor registration of said copyright under section 45 of the Copyright Act, as such non-registration of the copyright must lead to a conclusion that the plaintiff is not entitled to use the same. Reliance is placed on Mishra bandhu Karyalaya Vs. S. Koshal, AIR 1970 M. P. 261 (paras 9 and 10) in support of the submission made. ( 24 ) LASTLY, the learned Counsel for the respondents by way of alternate submission contended that the suit agreement automatically came to an end with the demise of Shri. R. J. Deshmukh, as, he did not nominate or appoint any person, so as to transfer his right under the suit agreement after his demise. Alternatively, it is submitted that wife of Late Shri. R. J. Deshmukh did not comply with any of the obligations flowing from the agreement. She did not pay a single pai to the heirs of late Shri. V. S. Khandekar and that the document dated 12- 3-1996 transferring rights to print and publish in favour of the plaintiff company by sulochanabai is a suspicious document. The learned Counsel for the respondents thus prayed for dismissal of the appeals with costs. ( 25 ) IN rejoinder, Dr. Tulzapurkar, submitted that in para 14 of the plaint it was specifically averred that the plaintiff is claiming copyright. The suit which was filed in the Court inferior to the District Court was withdrawn so as to file it in the Court competent to try a suit relating to copyright. In any case, both the parties proceeded on the footing that the claim put forth by the plaintiff-appellant was for copyright. In his submission, the issues framed by the trial court also clearly demonstrated that both the parties were aware that the plaintiff-appellant was claiming copyright under the agreement. He, thus, contends that now it is too late for the respondents to urge that there were no proper pleadings to claim copyright. In his submission, the issues framed by the trial court also clearly demonstrated that both the parties were aware that the plaintiff-appellant was claiming copyright under the agreement. He, thus, contends that now it is too late for the respondents to urge that there were no proper pleadings to claim copyright. In his submission, the contentions in this behalf are devoid of any substance. ( 26 ) DR. Tulzapurkar also strongly refuted the contention of the respondents that the suit agreement was a personal licence granted in favour of Late Shri. R. J. Deshmukh and it came to an end with his demise. He submits that four clauses of the agreement referred to in para 15 (supra) clearly indicated that it was a partial assignment of copyright providing for devolution of rights on the heirs of Shri. R. J. Deshmukh. It is also submitted that payment of royalty periodically and not a lumpsum amount is not determinative of the factor whether the agreement is an assignment or a licence. In his submission, judgments relied upon by the respondents are, thus, clearly distinguishable. ( 27 ) SO far as third contention of the respondents that in one of the books published by Shri. R. J. Deshmukh contained a declaration that the copyright belonged to the author, Dr. Tulzapurkar submits that such an inscription was for the information of general public that if any member of the public desired to deal with the said book for exploiting any other copyright it is the author who was required to be contacted. ( 28 ) THE learned Counsel for the appellant, in reply to the contention of the respondents that the Will of late Shri. R. J. Deshmukh did not grant any rights in favour of his wife, submitted that entire estate had been bequeathed by Shri. Deshmukh to his wife Mrs. Sulochana. The author had accepted and recognised the right of Shri. R. J. Deshmukh to bequeath the rights given to him. Thus, wife of Late Shri. R. J. Deshmukh was legally entitled to inherit and transfer those rights in favour of the plaintiff- company. Sulochana. The author had accepted and recognised the right of Shri. R. J. Deshmukh to bequeath the rights given to him. Thus, wife of Late Shri. R. J. Deshmukh was legally entitled to inherit and transfer those rights in favour of the plaintiff- company. ( 29 ) IN reply to the contention of the respondents that non-payment of royalty disentitled the appellant from claiming any equitable relief, it is submitted that the said contention is mis-conceived, inasmuch as the assignment was absolute and in any event, alleged non-payment of royalty does not ipso facto result in vitiating the assignment. The claim, if any, of the heirs of the author is only to claim royalty amount and nothing more. ( 30 ) DR. Tulzapurkar, lastly, prayed for allowing the appeal by reversing the judgment and decree of the trial Court and prayed for decree in terms of prayers in the suit with an interim injunction in terms of exh. 5 filed in Copy Right Suit No. 1/2002. Crux of the Issues : ( 31 ) THE crux of the issues on the pleadings and rival contentions as between the parties are as follows : issues Findings (1) Whether the plaintiff/ -No- (What is appellant has proved established is any right muchless the licence to exclusive right to print print and and publish in Marathi publish (non- work of Late Shri. V. S. exclusive) in khandekar in respect favour of Late of 14 books as per agree- Shri. R. J. ment dated 19-5-1973 ? Deshmukh. (2) If no, what was the Non-exclusive nature of right given licence in fav- under the agreement our of Late dated 19-5-1973 executed Shri. R. J. by late Shri. V. S. Deshmukh but khandekar in favour of not in favour shri. R. J. Deshmukh. of the plaintiff whether it is an assign- -company, ment of licence ? (3) Whether the impug- Yes. ned judgment and decree in Civil Suit No. 2/98 dated 3-2-2001 and order dated 20-2-2002 (Ex. J) passed in Copy right Suit No. 1/2002 is legal and valid ? (4) Whether appellant is No. entitled to claim interim injunction pursuant to the prayer made in application (Ex. 5) moved in copy Right Suit no. 1/2002? (3) Whether the impug- Yes. ned judgment and decree in Civil Suit No. 2/98 dated 3-2-2001 and order dated 20-2-2002 (Ex. J) passed in Copy right Suit No. 1/2002 is legal and valid ? (4) Whether appellant is No. entitled to claim interim injunction pursuant to the prayer made in application (Ex. 5) moved in copy Right Suit no. 1/2002? contours of appellate jurisdiction in substantive appeal ; ( 32 ) BEFORE I go to the points canvassed on behalf of the rivals let me say a few words in relation to the appeal Court's functions. The law provides the remedy of an appeal because of the recognition that those manning the judicial tier too commit errors. A Court of appeal has right and is indeed under an obligation to appraising and conclusions reached by the Court of the first instance so as to set right what are the errors of fact as also of law. Here, a well restraint which Courts of appeal place upon themselves is the inadvisability of rushing into a substitute a finding in conformity with the material on record, merely because the court of appeal left to itself or functioning as the Court of the first instance, would have come to a different conclusion. In other words, the Court of appeal will not interfere with a conclusion on facts reached by the trial court simply because it occupies a higher place in the judicial hierarchy. He who comes in appeal has to establish that the error on facts is of such a character as to necessitate intervention by the Court of appeal, because the error left uncorrected would constitute a blot on the fair name of justice. (See panjikaran Paulose Joseph Vs. Kusum vithal Patil, 1993 Mah. LJ. 1135 ). ( 33 ) THE Apex Court in the case of madhusudan Das Vs. Narayani Bai, AIR 1983 SC 114 has said : 'the principle is one of practice and governs the weight to be given to a finding of fact by the trial Court. There is, of course, no doubt that as a matter of law, if the appraisal of the evidence by the trial court suffers from a material irregularity or is based on inadmissible evidence or on a misreading of the evidence or on conjectures and surmises the appellate court is entitled to interfere with the finding of fact. There is, of course, no doubt that as a matter of law, if the appraisal of the evidence by the trial court suffers from a material irregularity or is based on inadmissible evidence or on a misreading of the evidence or on conjectures and surmises the appellate court is entitled to interfere with the finding of fact. " pleading and Proof: ( 34 ) BEFORE embarking upon the issues, keeping in mind the above parameters of the appellate jurisdiction, let me now turn to the pleading and proof available on record. At the outset, it must be pointed out that in the plaint (Ex. 1) available on record nowhere pleads an agreement dated 19-5-1973. What is pleaded is an agreement of 1974. In paragraph (4) of the plaint: while reiterating the said agreement: what has been pleaded in the plaint is the agreement of 1974. Thus, what is pleaded in the plaint is the agreement of 1974 (which does not exists ). In other words agreement dated 19-5-1973 has not been pleaded in the plaint. ( 35 ) BE that as it may, if one turns to para (6) of the plaint a reference is made to 14 books on the basis of the judgment in Civil appeal No. 40 of 1989; whereas that judgment has dismissed suit with respect to 13 books only. How right in respect of one more book viz. Soneri Swapna Bhangaleli was claimed is not to be found in the plaint. In para (7) of the plaint there is a reference to the alleged will alleged to have been executed by Late shri. R. J. Deshmukh. However, no date of the said Will is to be found in the plaint. It has not been pleaded that it was a last Will of shri. R. J. Deshmukh. It is further pleaded in the very same para that Late Shri. V. S. Khandekar (sic - R. J. Deshmukh) devised all the property to his wife Mrs. Sulochanabai deshmukh. But there is no specific pleading in the plaint as to on what basis the right is being claimed by the plaintiff in the agreement dated 19-5-1973. It is further averred in the plaint that the company was formed in the year 1989 and later on Mrs. Deshmukh by writing granted all her publication rights in the books of Late Shri. Khandekar to plaintiff- company. It is further averred in the plaint that the company was formed in the year 1989 and later on Mrs. Deshmukh by writing granted all her publication rights in the books of Late Shri. Khandekar to plaintiff- company. However, no details of such writing are to be found in the plaint. No date of the alleged writing is to be noticed in the plaint. It is further stated in the said para that the photocopy of that writing is annexed and marked Annexure C, but the said annexure is not to be seen with the plaint. ( 36 ) IF one further travels through the plaint pleadings, para 10 of the plaint avers that the plaintiff learnt that defendants Nos. 1 and 7 are about to publish and bring another book namely Yayati out of 14 books mentioned in the schedule. No date of alleged knowledge, source of information thereof has been disclosed or pleaded in the plaint. No material details or particulars of the facts alleged in this para are to be found in the plaint. ( 37 ) IN para 11 of the plaint, damages in the sum of Rs. 10,000/- are claimed without disclosing any basis with material particulars or details as to how damages were suffered and on what basis they were calculated. Entire plaint is silent about terms of copyright except in the prayer clause. It is nowhere stated in the entire plaint that the suit agreement dated 19-5-1973 was partial assignment of copyright. ( 38 ) THE verification of the plaint is also defective. As a r latter of fact there is no verification as per O. 6, R. 15 of the C. P. C. Under the caption of verification; what is done is the "solemn affirmation". No source of information pleaded in the plaint is to be found in the verification clause. Which paras of the plaint are verified from personal knowledge, which of them are verified from information received have not been mentioned. ( 39 ) IF one reads the plaint in toto, it is not possible to cull out the cause of action in support of each relief claimed in the suit. ( 40 ) BE that as it may, let me consider documentary and oral evidence, brought on record. It appears that vide list of documents (Exhibit 4) dated 13-4-2000, 4 documents were filed by the plaintiff: viz. ( 40 ) BE that as it may, let me consider documentary and oral evidence, brought on record. It appears that vide list of documents (Exhibit 4) dated 13-4-2000, 4 documents were filed by the plaintiff: viz. (i) photo copy of the agreement dated 19-5-1973; (ii) photo copy of the judgment in Reg. Civil Appeal no. 40/89 dated 11-2-1991 of the Additional district Judge, Solapur (iii) photo copy of the decree in Rev. Civil Appeal No. 40/89; and (iv) photo copy of the certificate of incorporation dated 11-5-1989. All these documents came to be exhibited on admission as Exs. 86 to 89 respectively. So far as other documents filed by the defendants vide list ex. 73-A are concerned, they were taken on record and on admission exhibited as Exhs. 75 to 80. ( 41 ) THE plaintiff vide Ex. 52 filed further documents with list of documents (Ex. 73) and produced thereunder photo copies of 18 documents. Advocate for the defendants made endorsement on Ex. 52 reading as under: "the defendants do not challenge the genuineness of these documents and the signatures thereon. The formality of proof of these documents be discussed (sic) with. Sd/-6-2-2001. " the trial Court exhibited above 18 documents as Exs. 53 to 70 treating the above endorsement as an admission of the documents on the part of the defendants. ( 42 ) LET me consider whether or not the above documents are proved. The defendants though dispensed with formal proof of documents filed vide list of documents under Ex. 73, but to my mind, they did not admit contents of the documents. Therefore, in my view, contents of the documents filed with list of documents at ex. 73, ought to have been proved by the plaintiff in accordance with the provisions of the Evidence Act. Perusal and acceptance of the above endorsements, at the most, can be construed as an admission of proof of signatures and genuineness of the documents but not the writing of the body of the documents exhibited as Exs. 53 to 70. In other words, concession with respect to formal proof of document does not dispense with necessity to prove truth thereof. Mere no objection to formally exhibit documents neither amounts to an admission of document nor it can be treated as an admission of contents thereof. 53 to 70. In other words, concession with respect to formal proof of document does not dispense with necessity to prove truth thereof. Mere no objection to formally exhibit documents neither amounts to an admission of document nor it can be treated as an admission of contents thereof. The only person competent to give evidence on the truthfulness of the contents of the documents is the writer thereof examined before the Court. No such writer was examined. The attempts to prove the contents of the documents by proving the signature has set at ought the well recognised rule that hearsay evidence cannot be admitted. In this view of the matter contents of Exs. 53 to 70 cannot be said to have been proved by the plaintiffs. ( 43 ) WITH the aforesaid documents on record, the plaintiff examined one Shri. Ravindra Godbole as its witness, who deposed in support of the plaintiffs' case. Relevant portion of the deposition on oath extracted for reference is reproduced hereinbelow. "on 19-5-1973 Ram Jay want Deshmukh had entered into an agreement dt. 19-5- 1973 with Shri. V. S. Khandekar to publish his literature and whereby he had acquired publishing rights of the literary work of Late Shri. V. S. Khandekar as far as his Marathi literary work was concerned. After the death of Ram jay want Deshmukh, those rights to publish the Marathi literary work of Shri. V. S. Khandekar were assigned to and received by his wife Sulochanabai. Later on sulochanabai had assigned these rights. Therefore, now at present plaintiff company holds those rights. " ( 44 ) SHRI. Ravindra Godbole has deposed that after the death of Shri. R. J. Deshmukh, who had a right to publish marathi literature of Shri. V. S. Khandekar those rights were assigned and received by his wife Smt. Sulochanabai. Reading of this piece of evidence would show that no evidence was led to establish as to how those rights were claimed; under which documents they were acquired by Smt. Sulochanabai, and how they were transferred by her in favour of the plaintiff. Nothing is to be found in this behalf in the oral evidence of Shri. Godbole in this behalf. Nothing is to be found in this behalf in the oral evidence of Shri. Godbole in this behalf. At this juncture, I must mention that both parties to the suit including that of the trial Court proceeded to hear and decide the suit on the incorrect assumption that all the documents were proved on admission, as such, notwithstanding my above findings, I propose to consider this appeal on merits without prejudice to my findings recorded hereinabove, since, in my opinion, even on merits plaintiff-appellant has no case to succeed even if all the documents and contents thereof taken as proved. As to Issue No. 1 : ( 45 ) THE resolution of the above issue centers around the written agreement dated 19-5-1973, including the pleadings and the oral evidence led by the plaintiff to claim right to print and publish the work of Shri. V. S. Khandekar with respect to 14 books mentioned in the plaint schedule. So far as the existence of proof of agreement dated 19- 5-1973 is concerned, its existence, execution and contents having been admitted by the defendants (Exh. 4), the said agreement though in the form of photo copy placed on record (Exh. 86) can conveniently be read as proved document. Having said so, if one turns to contents of clause 2 thereof it reads as under: (These books are written by khandekar. The right of printing and getting these books published is given amongst us to party No. 2 Mr. R. J. Deshmukh, owner of deshmukh and Co.) ( 46 ) READING of the aforesaid clause of the agreement unequivocally goes to show that what was given under agreement was only a right to print and publish. There is no mention ofexclusive right to print and publish as claimed in the plaint. Thus, written agreement does not give exclusive right. What it gives is bare right to print and publish that too in favour of Late Shri. R. J. Deshmukh, not in favour of either Mrs. Deshmukh or plaintiff. ( 47 ) HAVING noticed above, if one turns to the plaint (Ex. Thus, written agreement does not give exclusive right. What it gives is bare right to print and publish that too in favour of Late Shri. R. J. Deshmukh, not in favour of either Mrs. Deshmukh or plaintiff. ( 47 ) HAVING noticed above, if one turns to the plaint (Ex. 1), pleadings in this behalf the same are as under : "in the year 1973, and to be exact in May, 1974, late Shri. Khandekar, who died in the year 1976 had entered into an agreement with R. J. Deshmukh, by which he granted exclusive right to publish his books to the said Deshmukh on certain terms and conditions. " ( 48 ) READING of the aforesaid pleadings would go to show that the plaintiff claimed exclusive right of publishing books in the plaint. Right to print is absent from the pleading for want of averments. ( 49 ) ON the canvas of above pleadings, let me again turn to the oral evidence of Shri. Godbole, a sole witness to find out whether or not pleadings in this behalf are proved. The evidence already extracted hereinabove, in para 42 (supra) reads as under :- "on 19-5-1973 R. J. Deshmukh had entered into an agreement dated 19-5- 1973 with late Shri. V. S. Khandekar whereby he has acquired publishing right of the literary work of Shri. V. S. Khandekar as far as his literary work is concerned. " ( 50 ) AS already pointed out hereinabove, plaintiff has pleaded in para (3) of the plaint that the late Shri. V. S. Khandekar had granted exclusive right to publish his books to Shri. R. J. Deshmukh under certain terms and conditions, but while leading evidence no evidence was led in support of the said pleadings. On the contrary, the deponent Shri. Godbole (Ex. 73) has stated that, "on 19-5-1973 R. J. Deshmukh had entered into an agreement dated 19-5- 1973 with late Shri. V. S. Khandekar to publish his literature and whereby he had acquired publishing rights of the literary work of Shri. V. S. Khandekar". There is no oral evidence to establish exclusive right or claim to print and publish the literary work of the late Shri. V. S. Khandekar as pleaded in the plaint. Omission to depose in support of "exclusive" right to print and publish must lead to the conclusion of non-establishment of exclusive right to print and publish. There is no oral evidence to establish exclusive right or claim to print and publish the literary work of the late Shri. V. S. Khandekar as pleaded in the plaint. Omission to depose in support of "exclusive" right to print and publish must lead to the conclusion of non-establishment of exclusive right to print and publish. The difference between the exclusive and nonexclusive right in the copyright is well known. The absence of evidence in this behalf must negate the claim of exclusive right to print and publish set up by the plaintiff in the suit.