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Suit No. 241 of 1981, decided on 16th March, 1983.

‑‑‑ S. 114‑‑Non‑examination of material witnesses‑Adverse presumption from‑Plaintiffs filing suit on‑basis of breach of two agreements praying for various reliefs ‑Plaintiffs' witness failing to produce both original agreements and admitting his absence when first agreement executed‑Court not allowing photostat copies thereof to be produced Plaintiffs not examining executant of second agreement‑‑Plaintiffs also not examining Managing Director of Company who signed and verified plaint or producer/ licensee to prove execution of agreements‑No sufficient cause shown for non‑examination of such material. witnesses‑Held, in circumstances adverse presumption has to be drawn against plaintiffs.

Muhammad Yusuf v. S. M. Ayub P L D 1973 S C 160 ref.

Mst. Khairun Nisa v. Muhammad 1sha P L D 1972 S C 25 rel.

Mr. Naeem for Plaintiff.

Defendants (absent).

Date of hearing : 16th April, 1983.

The plaintiffs have brought the above suit claiming therein the follow ing reliefs against the defendants :‑

"(a) Grant permanent injunction against the defendants, their servants and employees jointly and severally restraining them from re‑producing, making, recording and/or copying from the plaintiff's music cassette bearing title "Nazia Hassan Disco Deewane" No. TCc EPCP‑5374 under the title Indian Disco Delmon bearing No. DS‑419" or any other title or description and further by a perpetual injunction restraining them from distributing, advertising, selling, offering for sale or in any manner dealing in or marketing the offending cassettes produced by them.

(b) Grant a mandatory injunction directing the said defendants to withdraw all their stocks of the offending cassettes being Annexure 5' to the plaint from their dealers throughout Pakistan and render a complete account thereof.

(c) Award damages in the sum of Rs. 20,00,000.

(d) Direct the defendants to render complete accounts of the production, distribution and sale of the offending cassettes copied from the plaintiffs' music cassettes for determining the total amount of damages suffered by the plaintiffs and grant a decree in such further sum as may be ascertained after accounts have been rendered by them.

(e) Allow interest at the rate of 14% per annum from the date of the suit till recovery.

(f) Cost of the suit.

(g) Grant any other relief this Honourable Court deems fit in the circumstances of the case."

2. The plaintiffs have alleged in the suit that at London by an agreement dated 22nd December, 1980 concluded between EMI Records Limited, referred in the plaint as "EMIR" and one Mr. Bashir Hassan, the said concern namely EMIR granted a licence to the Producer/ Licensee inter alia authorising him to reproduce or to get the records manufactured of the musical recordings known as Album performed by the famous singer Miss Nazia Hassan the daughter of the said producers licensee. The agreement, according to the Plaintiff specifically provided for manufacture of records and music cassettes for sale and distribution in Pakistan. Recording known and described as Album was to cover songs rendered and recorded by Miss Nazia Hassan during the period 1st December, 1980 and Ist June, 1981.

It is also alleged in the plaint that on 19th February, 1981 the plaintiffs concluded an agreement with the Producer/Licensee of the said music cassette called Album, performed by the said singer Miss Nazia Hassan and thus acquired the exclusive right to reproduce the said music cassettes locally and to distribute the same for sale throughout the country.

The plaintiffs thus claim to own copyright under the said agreement dated .19th February, 1981 pursuant to which they reproduced a pre‑recorded cassette containing 10 songs performed by the said singer (which was first recorded by EMIR) under the title 'Nazia Hassan Disco Deewane, bearing No. Tc‑cemep‑5374 and published and distributed the same throughout the country through their various dealers.

According to the Plaintiffs the defendants wrongfully taking undue advantage of the popularity of the Plaintiffs' said music cassette and without any permission from them illegally produced in collaboration with each other a pre‑recorded cassette containing the entire sound recording of the plaintiff's music cassette and introduced the same in the market throughout the country. It is also alleged that inside the case containing the offending cassette there is wrapper with bold and prominent words "Indian Disco Delmon" bearing No. DS‑410 and on the other side of the wrapper the opening words of the following 10 songs wrongfully copied by them from the plaintiffs music cassette, are printed :‑‑ , .

"Side A' Side B'

Aao na Tery Qadmon

Disco Deewane Dil Mere

Leykin Mera Dil Dhundhal Raat

Mujhe Chahy Gaien Milkar

Komal Disco Deewane II."

Relying upon their exclusive right as the licensee under an agreement dated 19th February, 1981 alleged to have been executed in their favour by Mr. Bashir Hassan who acquired the right under the agreement dated 22nd December, 1980 with EMIR, the plaintiffs brought the suit for the reliefs mentioned above.

3. The defendants have remained absent. In support of their case, the plaintiffs examined one Mr. Irshad Mahmood m the Court. This witness failed to produce the original agreement dated 22nd December, 1980. under which Mr. Bashir Hassan is stated to have acquired the licence from Messrs EMI Records Limited (known as EMIR). He admitted that he was not present when the agreement granting licence was executed in London. The photocopy of the above agreement dated 22nd December, 1980 being inadmissible was not allowed to be produced.

The witness also failed to produce the original agreement dated 19t February, 1981 under which Mr. Bashir Hassan allegedly assigned copyright to the plaintiffs. The executant of the agreement was also no examined. This document also therefore has not been proved. Reference if needed be made to the law laid down by the Honourable Supreme Court in the case of Muhammad Yusuf v. S. M. Ayub (P L D 1973 S C 160).

4. Further neither, Mr. Syed Mansoor Bukhari, the Managing Director of the plaintiffs who signed and verified the plaint nor Mr. Bashir Hassan was examined to prove the execution of the agreements or to support the plea of assignment of copyright in favour of the plaintiffs. In view of the failure of the plaintiffs to examine the above-named material witnesses who know the facts of the case and in the absence of any sufficient cause shown for their non‑examination, adverse presumption has to be drawn

against the plaintiffs. In the case of Mst. Khairun Nisa v. Muhammad Ishaq (P L D 1972 S C 25) the Honourable Supreme Court cited with approval the follow ing principle laid down by the learned High Court (Peshawar) in the case of Haji Abdullah Khan v. Nisar Muhammad Khan (P L D 1959 Pesh 812).

"It is a settled law that it is the bounden duty of a party personally knowing the whole circumstances of the case to give evidence on his behalf, and to submit to cross‑examination. His non‑appearance as a witness would be the strongest possible circumstance going to discredit the truth of his case.

In view of the principle laid down by the Honourable Supreme Court of Pakistan as above, and keeping in view the provisions of section 91 of the Evidence Act in my. opinion the plaintiffs have failed to prove that Mr. Bashir Hassan acquired any alleged copyright or licence in the copyright and/or made assignment of the alleged copyrights in respect of the described cassettes in favour of the plaintiffs.

5. The plaintiffs have also failed to prove their claim for damages amounting to Rs. 2 lacs against the defendants. Mr. Arshad Mahmood the plaintiffs' only witness examined in Court, stated that in his opinion the defendants sold out about 25,000 to 30,000 offending cassettes in the market and must have made profits amounting to Rs. 2 lacs. He however further stated :‑

"On the sale of cassettes we make profit at Rs. 1 or Rs. 1.50 per cassette. I cannot show at present anything to support the statement made by me that we are making profit of Re.‑‑‑ 1 or Rs. 1.50 per cassette." . .

In the light of the evidence given as above in support of the alleged claim for damages and keeping in view the fact that the suit against defendant No. 1 has been withdrawn I have no hesitation in concluding that here is no satisfactory evidence on record to prove which of the four defendants sold the alleged offending cassettes, in what quantity and for what value so as to burden each of them separately with specific amount for. causing alleged loss to the plaintiffs. It is also not shown what was the liability of the defendant No. 1 who was dropped and how the alleged amount of damages could be apportioned between the various defendants. Moreover according to the plaintiffs own witness the defendants allegedly sold 25,000 to 30,000 cassettes and that on each cassette the plaintiffs was making profit of Rs. 1. to Rs. 1.50. The claim of the plaintiffs for Rs. 2 lacs as damages thus on the face of it is untenable.

Even otherwise the plaintiff have miserably failed to prove that they suffered any loss. No document or satisfactory evidence has been produced by them in support of their claim.

6. The upshot of the above discussion is that the plaintiffs have failed to substantiate the case set up by them in the plaint. The suit is accordingly dismissed. Since the defendants are absent, there shall be no order as to costs.

K. M. A. Suit dismissed.

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