ALI NAWAZ CHOWHAN, J. -- This First Appeal from the order arises out of an order passed on 27.11.1997 by Mr. Badar uz Zaman Chathha, the learned Additional District Judge, Lahore in an application under Order 39 Rule 1 and 2 of the Civil Procedure Code, whereby, he dismissed tile aforesaid application. Teh relevant facts of the case are that HakeeM B.A. Shad and others brought a suit under the Copy Rights Ordinance, 1962 read with Order 20 Rule 16 of the Civil Procedure Code for a declaration with consequential relief in the shape of permanent injunction to restrain the respondents Mst. Fakhera Ashfaq and Minhas Publishers from publishing, printing, reproducing, copying, marketing or selling the hooks which were reflected in the corpus of the plaint as 'A' to 'I'.
2. According to plaintiff No. 1 he and Dr. Javed Iqbal were the co-publishers of different books alongwith Dr. Capt. Akhtar Raaz. That there was also a mutual understanding between these authors because of concerted efforts these books were published which are their intellactual property. That pursuant to the intellectual relationship, the co-authors were possession of manuscripts of the hooks afore-mentioned which are with Hakeem B.A. Shad who had the absolute right to publish them. That since he had been publishing these books during the life time of Dr. 'Captain Akhtar Raaz, it was absolutely manifest that he had the permission from Capt. Dr. Akhtar Raaz for the aforesaid purpose.. That because of the closeness of this intellectual relationship and of the acceptance of his position by Dr. Akhtar Raaz, no written assignment for the publication of these books was needed.
3. The cause of action arose to the present appellant when he learned that respondent Fakhera Ashfaq who happens to be the daughter of Dr. Akhtar Raaz, and the Minhas Publishers were jointly publishing some of these books in violation of the previous arrangement and understanding. He, therefore, tiled the suit tor declaration and also sought that respondents he restrained from publishing these hooks and pocketing the profit. An application was moved under Order 39 Rule 1 and 2 of the Civil Procedure Code with the Trial Court who in the case of Copy Rights Ordinance is the District Judge/Additional District and Sessions Judge. The learned Additional Sessions Judge rejected the application on the main ground that the appellant had not been able to produce any written assignment on behalf of Dr. Akhtar Raaz as required under the Copy Rights Ordinance.
Whereas, according to the appellant it was only necessary in connection with a single hook, namely, Aelopathic Practice of Medicine in which the sole author was Dr. Akhtar Raaz while in the case of other books, the situation was different because the plaintiffs were the co-authors and these hooks were not the exclusive intellectual property of late Dr. Akhtar Raaz. That the learned Judge did not apply his independent judicial mind while rejecting the application of the appellant.
That the appellant was willing to hand over the rights of that book to Fakhera Ashfaq daughter of Dr. Akhtar Raaz provided she entered into a proper compromise with him.
4. On the other hand, the learned counsel for the respondent states that all these hooks were authored by Dr. Akhtar Raaz and not by Hakeem, B.A. Shad or Dr. Javed Iqbal, therefore, written assignment was essential for the publication of these hooks.
5. This is a case of intellectual property and had to he dealt with in a slightly different manner. The objection of the respondent was that the plaintiffs were not the co-authors, whereas, the plaintiffs insisted that they were the co-authors. In this view of the matter, a statement under Section 10, CPC was necessitated permitting the parties to cross-examine each other for ascertaining not only the intellectual calibre for authoring these hooks but also abut the special relationship which the plaintiffs were having besides checking the manuscript alongwith the exception of the respondent regarding the custody of the manuscript with the plaintiffs as well as the past relationship between the three authors.
6. The learned counsel for both the parties are in agreement with this Court when it was suggested that in view of their arguments, the matter called for remand to the Trial Court for recording the statements of the parties under Order 10 of the Civil Procedure Code. Consequently, the case is remanded to this learned District Judge, Lahore who may hear the case himself or entrust the same to some other learned Additional District Judge at Lahore tin the disposal of the application under Order 39 Rule 1 and 2, CPC after recording the statements of the parties under Order 10, CPC.
The parties shall appear before the learned District Judge, Lahore on 15.7.1999. The Order impugned is set 'aside with no order as to the costs. In the terms noted above, this FAO is accepted.