M.N.Shukla, J. - (1.) The plaintiffs filed a suit for accounting, for delivery of books and for an injunction restraining the defendants, their agents, servants and officers from continuing or repeating any infringement of the plaintiffs copyright. The plaint allegations were that Sri Abhay Dev (plaintiff No. 2) wrote a book 'Vedic Vinay in three volumes some time between 1930 and 1934, that he was employed in various capacities in the Gurukul Vishwa Vidyalaya (defendant No. 3) from time to time from 1923 to 1942 and had also left service on several occasions during this period i.e. there were gaps in the continuity of the employment. It was also the case of the parties that the said book was published 63' defendant No. 3 from time to time during the period 1930 and 1956 and its profits appropriated by the said institution, However, plaintiff No. 2 alleged that he was the sole owner of the copyright in the book till 5-10-1950 when he transferred his copyright to plaintiff No-1. It was also alleged in the plaint that the defendant's had with the permission of plaintiff No. 2 published the first, second and third editions of the first volume and the first and second editions of- the second volume and the first and second editions of the third volume, that thereafter plaintiff No. 2 definitely instructed the defendants not to print, publish or sell any more any of the volumes of the said book but notwithstanding such instructions the defendants not only infringed the copyright of the plaintiff No. 2 possessed by him prior to 6-10-1950 and the copyright of the plaintiff No. 1 (assignee) subsequent to 6-10-1950 by publishing, printing and selling without the plaintiffs knowledge and permission the said books but also mentioned them-selves as the owner of the copyright therein, that since the publication of the said books by the defendants the sale of the books of the plaintiff No. 1 had considerably fallen in the market, inasmuch as the defendants had been selling continuously the books complained of that the plaintiff No.1 served the defendants a notice not to publish, print or sell any of those books but in spite of the notice the defendants had published and sold some of the books complained of. It was averred in the plaint that the above acts constituted an infringement of the copyright of the plaintiffs Nos. 1 and 2 respectively in these books during the relevant periods, that this was a continuing wrong and hence the suit.
(2.) The defence case was that the book had been written by Sri Abhay Dev (plaintiff No. 2) while he was in the employment of Gurukul Vishwa Vidyalaya, Kangri and in the course of his employment and as such the defendants were the first owners of the copyright under Section 5 (1) (b) of the Indian Copyright Act, 1911. It' was also pleaded that the Gurukul Vishwa Vidyalaya Kangri through its Mukhya Adhishtata (defendant No. 2) as representing the Arya Pratinidhi Sabha (defendant No. 1) had been all along getting various editions of these books printed and published openly and within the knowledge of the plaintiff No. 2 since Sambat 1988 and the idea of such a book written had also originated from the Antarang Sabha (Executive Body) of defendant No.1 and plaintiff No. 2 had been directed by the said Sabha to write the books for the benefit of the Gurukul (defendant No. 3) and consequently the suit was barred by the principles of estoppel, acquiescence and waiver. Of course, the plaintiffs had alleged that this publication had been done with the permission of plaintiff No. 2 but such permission was denied by the defendants. It was further alleged by the defendants that a long time had passed during which the Gurukul had been publishing the said book as of right and the suit was barred by limitation. It is important to mention that in the last paragraph of the written statement the plea of a tradition and practice had also been set up to the effect that the Acharyas and other employees of the Gurukul Vishwa Vidyalaya had been writing books for the benefit of the said institution and their copyrights had been vested in defendant No. 1 and the books were deemed to have been dedicated to the said Sabha as representing the said institution without reservation of any right for the writer. It is a fact that no issue was actually framed on this last pleading of the defendants.
(3.) The plaintiffs suit was decreed and aggrieved by the same the defendants have preferred this appeal. Two questions arise for decision in this case - (1) whether the books were gifted to the Gurukul Vishwa Vidyalaya, Kangri and (2) whether the books in dispute were written under a contract of service and in the course of such employment? If so its effect on the rights of the parties. In fact, only these two points were canvassed by the counsel for the appellants. I propose first to deal with question No. 1. The trial court summarily rejected the defence contention on the ground that no case of surrender or gift had been taken by the defendants at the trial and hence they could not be permitted to take up this position at the time of argument's. This observation of the trial court was plainly wrong. I have already adverted to the specific plea raised by the defendants in this behalf in paragraph 30 of the written statement. It is true that it did not form the subject-matter of any issue, nevertheless the parties went to trial with full awareness of the plea of dedication or gift of the books to the Gurukul Vishwa Vidyalaya, Kangri and also led evidence on the point. Hence, mere omission to frame a specific issue on this point would not justify the shutting out of the defendants case. The ruling reported in AIR 1956 SC 593, Nagubai Ammal v. B. Shama Rao is on all fours with the present case. In the Supreme Court decision it was held that where parties go to trial with the knowledge that a particular question is in issue, though no specific issue has been framed thereon, and adduce evidence relating thereto, the plea must be taken into account by the court and the absence of specific pleading on the point is a mere irregularity which results in no prejudice to the parties. The record of the present case abundantly shows that there was considerable evidence to prove the case of dedication or gift of copyright by plaintiff No. 2. The letter dated 29th March (Exhibit 6) Sambat 2005 (1948 A. D.) not only contains an emphatic assertion of the factum of dedication but virtually upbraids plaintiff No- 2 for his dishonest attempt to go back on the gift. It was written to plaintiff No. 2 on behalf of the Gurukul Vishwa Vidyalaya, Kangri and says that the books in question had been dedicated to the Gurukul and the gift was irrevocable. The letter also refers to the prevailing custom of dedicating such books to the Gurukul and says that till that time many persons had gifted their books to the Gurukul and had never tried to revoke such gift and that plaintiff No. 2 by asking for the return of his books was setting the first precedent of its kind and that he had neither the moral nor legal right of going back upon his previous dedication. The second letter dated 2-4-1948 (Exhibit 5) is a significant document and gives a glimpse into the working of the mind of plaintiff No. 2. In this letter he asked the Gurukul not to publish these books in future, inasmuch as he desired to make out some income for himself from the publication of those books. The letter actually concludes with an offer of plaintiff No- 2 that he was willing to consider the proposal of even future publication by Gurukul if the latter was prepared to allow plaintiff No. 2 to appropriate a part of the proceeds of some of those books. Obviously this letter indicates that the Gurukul had been publishing these books in the past and that there was a gradual transformation in the attitude of plaintiff No. 2 who now expressed his desire of appropriating a part of the income derived from the publication and sale of the books which he had actually dedicated to the institution. In this context the letter dated 12th October Sambat 2007 reveals the extraordinarily sympathetic and indulgent attitude of the Gurukul Vishwa Vidyalaya, Kangri which after emphasising that the books written for and dedicated to the institution could not be withdrawn, however, makes the concession that the Gurukul was prepared to pay 10% of the net profit from the books to plaintiff No. 2. The letter dated 6-2-1951 written by plaintiff No. 2 further betrays the higgling and commercial attitude in which he had unabashedly lapsed. Its contents are that plaintiff No. 2 claimed 20% of the price of the books sold as his profit and was not prepared to accept merely 10% net profit as proposed by the Gurukul, and that it was always very easy for the institution to show that there was no net profit in the sale of the books. On the other hand, quite consistent with the defendants case is the letter dated 19-5-2008 Sambat (Exhibit 8) (1952 A. D.) in which the Gurukul stated that plaintiff No. 2 was not at all justified in publishing the books which had been gifted to the institution, still, however, considering the extraordinary plight of plaintiff No. 2 and in order to avoid any dispute with him it was prepared to allow him to publish those books provided that they clearly mentioned Gurukul Kangri as the place from which the books were available. The letter ended with a clear -declaration that the Gurukul would also -continue to publish those books. Another important corroborative evidence in the case is a copy of the proceedings -of the executive committee of the Arya Pratinidhi Sabha and its resolution No. 28 (Ex. 9) saying that the gift of the books once made could not be revoked but considering the special circumstances +of the plaintiff No. 2 he might be allowed to share 10% of the net profit accruing from the books. I may also refer in this connection to the letter dated 16-3-1949 written by plaintiff No. 2 to the Principal, Gurukul Vishwa Vidyalaya, Kangri whereby he had requested the latter to supply one copy each of the last edition of the first and second volume of the books to him and thus had recognised the right of the Gurukul to that extent at least. Such apologetic letter would have never been written by the plaintiff No. 2 if he had actually possessed a copyright in the books. This furnishes an important clue to the gradual change in the attitude of plaintiff No. 2 and the documentary evidence considered as a whole proves that plaintiff No. 2 'had actually made a gift of the books to the Arya Pratinidhi Sabha representing the Gurukul Vishwa Vidyalaya, Kangri but in course of time his intentions became dishonest and he succumbed to the lure of money. Thus, the plaintiff No. 2 having unreservedly placed the book into the hands of the defendants could not be regarded as the owner of the copyright. The ruling reported in Muhammad Abdul Jalil v. Ram Dayal, (1916) ILR 38 All 484 is a case in point and fully supports the contention of the appellants. The plaintiff in that case had prepared a selection of, passages from Persian authors for being prescribed as a course of studies for different examinations of the Allahabad University. The plaintiff was himself a member of the Board of Studies of the said University, and after approval of his selections, the University included those selections in its prescribed syllabus. The defendant brought out a book on the basis of that syllabus, and the plaintiff claimed copyright and alleged that the defendant had infringed his rights. Their Lordships held that by laying the result of his labour (in selecting the passages) unreservedly , at the disposal of University authorities, the plaintiff had surrendered his copyright in that selection and when the syllabus was published for general information, the University authorities also surrendered their own copyright, if any, in the said selection, in favour of the general public.;