B.J Wadia, J.:—
This is a suit in respect of an alleged infringement of copyright. Plaintiffs are a company having their registered office in London and are the present owners of a copyright in a musical work or composition called “Classica”, which copyright is still subsisting. They allege that the defendants infringed that copyright on March 23, 1937, by either performing the musical work or causing it to be performed on their premises without the plaintiffs' knowledge and consent. Plaintiffs have accordingly filed this suit for an injunction and damages through their constituted attorney Mr. Charles Mortimer Eastley, a partner of the firm of Messrs Little & Co., attorneys of this Court.
The defendants contended at first that the musical composition “Classica” could not form the subject-matter of a copyright, and a commission was accordingly issued to England to take evidence on the point. That contention was, however, abandoned at the hearing. Defendants further denied that the copyright still subsisted or was vested in the plaintiffs, but that contention has also been given up, and no issue has been framed on it. Defendants only deny the alleged infringement on March 23, and accordingly deny liability. They have, however, raised three issues with regard to the frame of the suit which I will first deal with.
The first issue is whether Mr. C.M Eastley is the constituted attorney of the plaintiffs. The power-of-attorney under which the suit is filed is dated March 10, 1932, and is given in favour of the members of the firm of Messrs Little & Co., plaintiffs' attorneys, including Mr. C.M Eastley. It is a general power-of-attorney, and has been put in as Exhibit 1. The power is given under the seal of the Company which is affixed at the end, but defendants' counsel argued that under art. 48 of the Articles of Association of the Company the seal of the Company could not be affixed to any instrument except by the authority of a resolution of the Directors and in the presence of at least two Directors and the Secretary or such other person as the Board of Directors may appoint for the purpose, and that such resolution has not been produced. A true copy of the resolution was, however, produced and shown to the Court. The power-of-attorney is given under the seal of a Notary Public of the city of London, and has been duly executed and attested. Under s. 85 of the Indian Evidence Act the Court shall presume that a power-of-attorney executed before, and authenticated by, a Notary Public, was so executed and authenticated. The provision is mandatory, and it is open to the Court to presume that all the necessary requirements for the proper execution of the power-of-attorney have been duly fulfilled. I may further point out that under s. 57(6) of the Indian Evidence Act the Court shall take judicial notice of, inter alia, all seals of Notaries Public. It has also been held in In re Sladen(1) that there are different legal modes of executing a power-of-attorney, and that the provision of s. 85 was not exhaustive. There is a certificate annexed to the power-of-attorney in suit by the Notary Public in which he says that the common seal of the plaintiff Company had been affixed to the power, and that it was executed in his presence in pursuance of a resolution of the Board of Directors and in the presence of two Directors of the Company and its Secretary. In my opinion, the power-of-attorney is properly executed, and I, therefore, answer issue No. 1 in the affirmative.
The second issue is whether Mr. Eastley is the recognised agent of the plaintiffs. It is provided by O. III, r. 1, of the Civil Procedure Code that any appearance, application or act in or to any Court, required or authorised by law, may be done by the party in person, or by his recognised agent. Under O. III, r. 2, the recognised agents of parties by whom such appearances, applications and acts may be made or done are amongst others persons holding powers-of-attorney, authorising them to make and do such appearances, applications and acts on behalf of such parties. The word “general” preceding the words “powers-of-attorney” in s. 37 of the old Code of 1882 was omitted in O. III, r. 2, and the clause making specific provision for Mukhtears in that section has also been deleted. The result was that O. III, r. 2(a), as it originally stood, authorised any person holding a power-of-attorney to act or make applications or appearances in Court. The rule, however, has been amended from time to time; but it is not necessary to discuss the different amendments in this place. The present amendment in force which is applicable rung as follows:—
(a) “Persons holding on behalf of such parties either (i) a general power-of-attorney, or (ii) in the case of proceedings in the High Court of Bombay an Attorney of such High Court …, holding the requisite special power-of-attorney from parties not resident within the local limits of the jurisdiction of the Court within which limits the appearance, application or act is made or done, authorising them or him to make and do such appearances, applications and acts on behalf of such parties.”
It was argued that the two parts of this amended rule were disjunctive, and the power-of-attorney under which an attorney of the High Court could act in High Court proceedings could only be a special power-of-attorney and no other. The word “persons” in the first part of the amendment is comprehensive, and does not exclude an attorney of the High Court. What is meant under the second part is that an attorney of the High Court of Bombay can also appear under a special power-of-attorney. It is a person who is not an attorney who can only act for a party under a general power-of-attorney. It was pointed out that it was not clearly stated in part two that the special power-of-attorney was in addition to a general power-of-attorney under which an attorney could act. The rule is not clearly worded. But if it had been the intention of the makers of the amended rule to restrict an attorney only to a special power-of-attorney, it would have been provided specifically that an attorney of the Court could only act under a special power-of-attorney and no other. The words “requisite special power-of-attorney” do not mean that only a special power-of-attorney is required. They mean that the special power-of-attorney must be a proper power. If an attorney could not act also under a general power-of-attorney, a great deal of inconvenience would arise if the attorney who had to file suits on behalf of an absent party and to make interlocutory applications immediately was to wait to get a special power-of-attorney in every case. Defendants' counsel argued that a general power-of-attorney might be easily abused by an attorney who might be tempted to file suit after suit without reference to the party. But to that the answer is that a general power-of-attorney need not be given to the attorney if the party does not so wish. In my opinion, therefore, an attorney of this Court can act both under a general as well as a special power-of-attorney, but a person who is not an attorney can act only under a general power. I, therefore, hold that Mr. Eastley is the recognised agent of the plaintiffs, and would answer issue No. 2 also in the affirmative.
The third issue is whether the plaint is properly signed and verified. My attention was drawn to O. XXIX, r. 1, of the Code under which suits by a corporation may be signed and verified on its behalf by the Secretary or by any Director or other principal officer of the corporation who is able to depose to the facts of the case. It was argued that this plaint had not been verified by a person who would fall under any one of these categories. It has, however, been held by the Appeal Court in Calico Printers' Association, Ltd. v. Karim & Bros., that O. XXIX, r. 1, is a permissive rule and does not exclude the operation of O. VI, rr. 14 and 15 of the Code. That case was also followed by Rangnekar J. in Bundi Portland Cement Limited v. Abdul Hussein Essaji.(2) Under O. VI, r. 14, every pleading shall be signed by the party and his pleader (if any): prodded that where a party pleading is, by reason of absence or for other good cause, unable to sign the pleading, it may be signed by any person duly authorised by him to sign the same or to sue or defend on his behalf. The plaint has been signed by Mr. Eastley as the constituted attorney of the plaintiffs, and I have already held that his appointment as such is valid and that he is the recognised agent of the plaintiffs. It is provided by O. VI, r. 15, that every pleading shall be verified at the foot by the party or by some other person proved to the satisfaction of the Court to be acquainted with the facts of the case. It is further provided that the person verifying shall specify by reference to the particular paragraphs of the pleading what he verifies of his own knowledge and what he verifies upon information received and believed to be true. There is nothing in this rule which prevents the person verifying from saying that the whole plaint is upon information received and believed to be true. That has been done, and I would therefore also answer issue No. 3 in the affirmative.
[His Lordship then dealt with the merits of the case and found as a fact that there was an infringement of the copyright and granted the injunction prayed for and awarded Rs. 50 as damages for the breach.]
Decree accordingly.
N.K.A
Comments