1. ' Through this common order, I intend to dispose of two (2) interlocutory applications, filed by the plaintiffs for prohibitory injunction against the defendants in these suits, as the question of infringement and copyright pertains to the same set of books.
2. ' In Suit No,338 of 1996, it is claimed that plaintiff No,1, namely, F.E.P. International (Pvt.) Limited is a company incorporated under the Laws of Singapore with its Head Office at Singapore, while defendant No,2, namely F.E.P. International (Pvt.) Limited, Karachi is a company incorporated in Pakistan under the Companies Act, 1913 (now Companies Ordinance, 1984), hereinafter both these companies are referred to as the "F.E.P. Singapore" and "F.E.P. Pakistan", respectively. It is further claimed that F.E.P. Pakistan was duly incorporated in Pakistan and registered with the Registrar, Joint Stock Companies, on 29th July, 1980. In this suit, defendant is also a company namely, Friend Education Publisher (hereinafter referred to as Friend Publisher) which is a company incorporated under the Companies Ordinance, 1984 on 23rd November, 1995. Suit No,472 of 1996 is filed by M/s. Friend Publisher Ltd. (defendant in Suit No,338 of 1996) for perpetual injunction against F.E.P.
3. Singapore and F.E.P. Pakistan.
4. ' The case of the plaintiffs in Suit No,338 of 1996 is that through a memorandum, dated 20th September, 1985, F.E.P. Singapore granted F.E.P. Pakistan unrestricted copyright to adapt, print, publish and sell in volume form, the works published F.E.P. Singapore. However, copy of such memorandum was neither produced in Suit No,338 of 1996 nor in Suit No,472 of 1996. In paragraph 5 of the plaint, it is claimed that the plaintiffs have obtained copyrights in respect of some thirty- nine publications, details of which have been disclosed in that paragraph. Plaintiffs have also filed Annexures 'A/1 to 'A/39', which are certificates of registration of copyrights, issued by the Registrar of Copyrights, Karachi and pertain to the period commencing from December, 1992 to March, 1993, which are in respect of all such books as disclosed in paragraph 5 of plaint in Suit No,338 of 1996. It is further case of the plaintiffs that they have also applied for registration of copyrights in respect of some fifty-eight publications, details of which have been disclosed in paragraph 6 of the plaint, which proceedings are still pending before the Registrar, Copyrights. Present grievance of the plaintiffs is that the defendant namely Friend Publisher with the similar name of F.E.P. (Pvt.) Limited itself got registered with the Joint Registrar of Companies, Sindh, in utter disregard of section 37(2) of the Companies Ordinance, 1984, and is publishing, printing and circulating books as mentioned in paragraph 5 of the plaint; that on 8th November, 1995 the defendant wrote to F.E.P. Singapore expressing their desire to publish their general books for children in Pakistan which was not approved by F.E.P. Singapore. In support, they have filed Annexures 'B' and 'C' with the plaint. It is claimed in the plaint of Suit No,338 of 1996 that Friend Publishers have committed acts of infringement of copyrights in respect of textbooks/literary works as mentioned in paragraphs 5 and 6 of the plaint and that the acts of defendant by illegally and unauthorisedly producing, publishing and selling the same, which amounts to infringement of copyrights of the plaintiffs, who are the lawful owners, the defendant has caused damage and losses to the plaintiff. For this reason, it is claimed by the F.E.P. Singapore and F.E.P. Pakistan that they have suffered irreparable loss and injury to their business. They have prayed for permanent injunction restraining Friend Publisher, their men, servants, agents, distributors, salesmen, booksellers from committing infringement of copyrights of plaintiffs in respect of books as mentioned in paragraphs 5 and 6 of the plaint, pending disposal of the suit.
5. ' Messrs Fiend Publisher in their written statement as well as in their counter-affidavit disputed the present status of plaintiff No,1 namely F.E.P. Singapore and have stated that the F.E.P. Pakistan has no written authority from the original author to publish such books. It has also claimed that there is no contract of assignment between F.E.P. Singapore and F.E.P. Pakistan. However, they have not specifically denied contents of paragraph 11 of the plaint, wherein it was alleged that Friend Publishers have approached F.E.P. Singapore for obtaining assignment of their copyrights. In their written statement, it is submitted that through a publication in a leading newspaper of Singapore "The Straits Time" they had invited objections from relevant quarter for the publication of such books, which are the same books which the F.E.P. Singapore and F.E.P. Pakistan have claimed in paragraphs 5 and 6 of their suits. It is further case of Friend Publishers that till this date they have not received any objection.
6. ' Facts of Suit No,472 of 1996 are more or less similar as of the above suit except that the parties are interchanged. In this suit Friend Publishers have filed application under Order XXXIX, rules 1 and 2, C.P.C. (C.M.A. 2944 of 1996) seeking temporary injunction against F.E.P. Singapore and F.E.P. Pakistan, their agents, distributors, and representatives restraining them from committing infringement of their rights in respect of the books as disclosed in paragraph 3 of the plaint in Suit No,472 of 1996. In this suit, defendants namely, F.E.P. Singapore and F.E.P. Pakistan have filed joint written statement and their case is identical as of the plaintiffs in Suit No,338 of 1996. However, in this suit alongwith their statement they have also filed an affidavit of Cho Jock Kim as Annexure 'D' through which signatures on Annexures 'A' and 'B', filed with the written statement in Suit No,338 of 1996, have been denied. Mr. Hassan Inamullah has raised objection to the admissibility of this affidavit as it was not sworn before the competent officer of the Embassy of Pakistan at Singapore.
7. ' I have heard Mr. Munawar Ghani, Advocate who has appeared on behalf of F.E.P. Singapore and F.E.P. Pakistan and Messrs Hassan Inamullah and Ch. Tanveer Amjad, who have appeared on behalf of Friend PublisheRs, It was contended by Munawar Ghani that in view of certificates of copyrights, issued by the Registrar of Copyrights and which were filed as Annexures 'A/1' to 'A/39' with the plaint in Suit No,338 of 1996, the plaintiff No,2, namely F.E.P. Pakistan has become lawful owner of the copyrights and that the registrations are prima facie proof of the same. He has referred to section 42 of the Copyright Ordinance, 1962. He has argued that till this date Messrs Friend Publishers have not applied for rectification of this registration as provided under section 41(2) of the Ordinance, 1962. This fact has not been denied by the defendant. He has also argued that the permission obtained by the defendant (Friend Publisher) from Provincial Government is defective and does not create any authority or entitlement in them to print, publish and sell all such books for which F.E.P.
8. Pakistan has obtained registration from the copyrights in Pakistan. On the other hand, it has been vehemently denied by Messrs Hasan Inamullah and Tanveer Amjad that in absence of any agreement or assignment from F.E.P. Singapore to F.E.P. Pakistan, they were not entitled to obtain such registration. They have also argued that there exist several irregularities in grant of registration to F.E.P. Pakistan. They have heavily relied on the permission extended by the Provincial Government, which they have filed as Annexures 'B/1' to 'B/8' with their Suit No,472 of 1996. Mr. Hasan Inamuallah has also referred to the case of Shakeel Adilzada v. Pakistan Television Corporation and 2 others 1990 CLC 714 and the case of Riaz Ahmed Mansuri v. Abid Ali Qazi and 2 others 1990 M LD 1786.
9. ' In the case of Shakeel Adilzada (supra) a Division Bench of this Court comprising of Ajmal Mian and Mukhtar Ahmad Junejo, JJ. (as their lordships then were), while hearing High Court Appeal against the order of a learned Single Judge whereby injunction was refused to the plaintiff, endorsed the views expressed by the learned Single Judge Mamoon Kazi, J., that the assignment must be in writing signed by the owner of the copyright and maintained the order of the Single Judge refusing to grant interim injunction. In that case the original author of the play "Jangloos" was before the Court as defendant/respondent No,2, who disputed the fact that he had assigned any absolute right in favour of the plaintiff. In the instant case, the original author of the publications are not before this Court. The original publishers (F.E.P. Singapore) have signed and verified on oath a joint plaint (Suit No,338 of 1996) and has also filed a joint written statement (Suit No,472 of 1996) advancing the contention that F.E.P. Pakistan is the assignee. Under the circumstances, in my view it would have been the original author, who alone can contest or challenge such assignment and not Friend Publishers, who themselves are using this title and are publishing the said books without any assignment. During the course of arguments, I have asked Mr. Hasan Inamullah whether he possesses any assignment as provided under section 15 of the Copyright Ordinance, 1962, to which he has very candidly answered in negative. The case of Riaz Ahmed Mansuri (ibid) though arises from a dispute of printing and publishing a magazine titled as "The Cricketer", it involves interpretation of section 20(2) of the Trade Marks Act, 1940 and, therefore, the rule laid down in that case is not relevant. I would like to point out that the criteria for granting interim injunction in the matter of copyrights was discussed by my learned brother Mamoon Kazi, J., in the case of Shakeel Adilzada v. Pakistan Television Corporation and 2 others 1989 CLC 2447 where following cautions were observed which are required to be observed by a Court while granting interim injunction:-- "16. The object behind giving the thumb nail summary of these cases is to highlight the factors the Court has to take into consideration before granting an injunction when infringement of a copyright is alleged. It follows from the above enumeration that copyright can be assigned only by a written agreement. Even though copyright has not been specifically assigned the Court can still draw its influence by looking at the agreement. The mere circumstances that an author has been engaged by a publisher to write a book for remuneration would itself not vest the copyright in the publisher unless such an intention can be clearly gathered from the agreement. In case the Court comes to a conclusion that the author has only given a licence to the publisher to publish the work, it will have to look into the agreement to determine the conditions on which the same was given to the publisher. However, copyright cannot be presumed and when action is brought before the Court by the plaintiff to prevent infringement of copyright; the Court would grant an injunction only when the right claimed by the plaintiff is clear. The conduct of the plaintiff would also be one of the relevant factors to be considered by the Court while granting or refusing an injunction."
10. (Underlining is mine).
11. ' In the case of Abbas Hussain Farooqui v. Messrs Royal Printing Press and Ali Printing Service, Karachi and 10 others PLD 1970 Kar. 554 a Division Bench of this Court, at length discussed the terms and phrase "literary work" and "original literary work". It was held, inter alia, that copyright being proprietary right, ignorance is no excuse for its infringement. In that case the plaintiff was publishing diary which, to much extent was similar to the diaries being published by the plaintiff. It was held as follows:-- "It is no doubt correct that a few changes have been introduced here and there in these diaries but that by itself would not deprive the plaintiff of his copyright. In many cases the alleged infringement does not consist of an exact or verbatim copy of the whole or any part of the earlier work, but merely resembles it in a greater or a lesser degree. Indeed, it is usual for an infringement to consist of an exact reproduction of the whole of the plaintiff's work."
12. ' In the instant case, it was also submitted on behalf of Friend Publishers that the books being printed and published by them are in the name of the original authors while F.E.P. Pakistan is printing and publishing the books in the name of Pakistani authors, therefore, it was argued that both publications are different and that the F.E.P. Are not entitled for injunction. I have compared all such books which were produced by the parties during the course of hearing. No doubt, some of the books being published by F.E.P. Pakistan, there appear names of Pakistani authors in reference to "edited by" and "compiled by" but majority of the books were in the name of original authoRs, The material, colour scheming and style of printing are similar in all these books. The Friend Publishers have taken three mutually destructive pleas which disentitles them from seeking interim injunction against F.E.P.. Firstly, it is claimed by them that in the years 1981-82 they obtained permission/assignment for printing and publication of these books from F.E.P. Singapore but at the same time they have denied its existence. If they are claiming assignment from F.E.P. They have to accept its existence. Secondly, if they possess assignment as claimed by them, then, why they have invited objections to publication of these books through an advertisement published in Singapore. Further, they have not filed any rectification application for the removal of F.E.P.
13. (Pakistan) registration in respect of copyright. Prima facie, all these show that they are neither original author nor assignee.
14. ' Reverting to the question of permission granted by Provincial Government to Friend Publisher it reveals that such permission was granted to one Messrs New Indus Publishers, having office at 34- New Urdu Bazar, Karachi, which is the same address as of Friend Publisher. It is claimed by Mr. Hasan Inamullah that this New Indus Publishers is a proprietary firm and is subsidiary of Friend Publisher. No doubt, under provisions of this Rule the Director Information of Provincial Government is competent to grant permission to print or publish a book but these rules do not vest any power in the said Director to permit publications in infringement of copyright. Therefore, simply to say that Friend Publisher have obtained permission from Provincial Government to print, publish and sell these books in the open market does not authorise them to violate copyrights as guaranteed under the Copyright Ordinance, 1962. I would like to observe that the 1969 Rules in no manner authorise the Provincial Government to permit violation of the provisions of Copyright Ordinance, 1962.
15. ' In view of the fact that under section 41 of the Copyright Ordinance, 1962 the Registrar Copyrights in respect of books mentioned in paragraph 5 have granted certificates which are still on the register of copyright and no attempt has been made for its rectification, I am afraid that the question D challenging its legality or validity cannot be considered in these proceedings, for which the proper course would be to apply before the Registrar for rectification. In presence of these registrations sanctity is prima facie attached to the owners of all such registrations. It is stated by Ch.Tanveer Amjad that Messrs Friend Publisher is only printing, publishing and selling nine of these books as mentioned in paragraph 5 of the plaint in Suit No,338 of .1996. As far as those books mentioned in paragraph 6 of the said plaint are concerned, it is stated by the learned counsel appearing for Messrs Friend Publisher that they are not printing, publishing or selling those books.
16. ' In view of the above discussion, I am satisfied that the F.E.P. Have good prima facie case and if injunction as prayed is not granted, they would suffer irreparable loss and injury and that the balance of convenience is in their favour. I, therefore, grant Civil Miscellaneous Application No,2275 of 1996 in Suit No,338 of 1996 in respect of books as mentioned in paragraph 5 of the plaint while Civil Miscellaneous Application No,2944 of 1996 in Suit No,472 of 1996 is dismissed. This interim injunction against Friend Publisher shall come into force at once in respect of printing the said books. However, they shall be entitled to sell and distribute all such books, which are already available in the market, but subject to submission of monthly accounts with the Nazir of this Court.
17. In this respect, the Friend Publisher is directed to file a statement in writing within 15 days showing how much books in number pertaining to each title are available in the market (including the names of booksellers) and which were printed prior to this order. In this regard, F.E.P. Singapore and F.E.P. Pakistan would be at liberty to file objections to the numbers of the books of Friend Publisher available in the market. The Friend Publisher are further directed to submit the names and addresses of all the printers of their books within the period as mentioned above. In case, all such books which are subject-matter of both these suits and belong to Friend Publisher, are not finally sold by 30th July, 1997, they shall withdraw the same from open market."
18. Injunction granted.