Ganga Nath, J - (1.)This is defendant 1's appeal and arises out of a suit brought against him and defendant 2 Sudarshan Lal, respondent, by the plaintiffs respondents for damages, recovery of infringing copies and an injunction to restrain the defendants from infringing the plaintiffs copyright. The plaintiffs are the printers and publishers of a book, Ex. 1, entitled "Sachitra Bara Kok Shastra". It was printed for the first time in 1928 and has run into four editions since. Defendant 1 printed and published Ex. 2, called "Asli Sachitra Kok Shastra" in 1930. Defendant 2 is said to be the author of it. The plaintiffs case is that Ex. 2 is a colourable imitation of their book Ex. 1 and has infringed the plaintiffs copyright in Ex. 1. The defendants admitted the plaintiffs copyright in Ex. 1, but not in the passages and ideas which they (plaintiffs) had bor. rowed from previous works. They contended that they had not infringed the plaintiffs copyright. The trial Court found that the plaintiffs copyright in Ex. 1 was infringed by the defendants, and it awarded damages and special costs under Section 35-A and ordered delivery of infringing copies. It also issued an injunction restraining the defendants from infringing the plaintiffs copyright. Defendant 1 has come here in appeal.
(2.)Issues were framed on 11 May 1932. On 8 June 1932 an application was made by the plaintiffs for the appointment of a Commissioner to submit a report expressing his opinion on the matter in Issue 1, which was as follows : "is the publication of Ex. 2 an infringement of the plaintiffs copyright in Ex. 1?" The Commissioner was required to examine and compare the two books and record the necessary evidence and hear the parties. On the same day Pt. Ranga Nath Sharma, who was nominated by both the parties, was appointed Commissioner by the Court. An objection has been taken to the legality of the appointment of the Commissioner on behalf of the appellant. As stated above, the Commissioner was appointed with the consent of the defendant, and consequently it does not lie in his mouth to object to the appointment after the Commissioner has submitted his report which has gone against him. In a case like this, which involves minute scrutiny of alleged similarities and dissimilarities and extensive and lengthy comparison, it is not only proper but essential that the case should be tried with the aid of experts who might be appointed Commissioners to investigate and report similarities. In Sita Nath Basak V/s. Mohini Mohan Singh in a similar case it was observed: Apart from this, we are of opinion that in this class of cases, the Court should be reluctant to sit as experts and to decide the question of infringement of copyright without the aid of expert evidence.
(3.)As would appear from the application of the plaintiffs for appointing the Commissioner, the Commissioner was to examine and compare the two books, record the necessary evidence which the parties wished to produce and to submit his report as to his opinion on the matter in issue No. 1. It may be stated at once here that the opinion of the Commissioner is no evidence. The Commissioner did not give evidence on oath and we have not considered and acted on it. As regards the recording of evidence, there was no illegality or irregularity. Section 75, Civil P.C. provides: Subject to such conditions and limitations, as may be prescribed, the Court may issue a commission to examine any person....