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TMI Blog1938 (11) TMI 30X X X X Extracts X X X X X X X X Extracts X X X X ..... ntention 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 1 will first deal with. 3. 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 Article 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ttorney 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, runs 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 Bom ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4 and 15, of the Code. That case was also followed by Rangnekar J. in Bundi Portland Cement Limited v. Abdul Hussein Essaji (1935) 38 Bom. L.R. 894. Under Order VI, Rule 14, every pleading shall be signed by the party and his pleader (if any) : provided 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 Order VI, Rule 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sort was in fact relayed on that day from the Bombay Station between 12 noon and 1 p.m. It is, however, not for the defendants to prove that there was no infringement. The onus is upon the plaintiffs to prove that in fact there was. They have called as their witness Mr. Joseph Phillip De Costa who is an Inspector in the service of the plaintiffs. He said that he had visited these premises before, that he had written to the plaintiffs' agents in Madras, Messrs. Vernon Co., and that he was asked by them to go and inspect, inter alia, this particular restaurant of the defendants. He said he did so on March 23, 1937, at 1 p.m. when he entered the restaurant, and after a few minutes which were taken up in broadcasting certain market rates he actually heard the different excerpts and tunes of this musical composition Classica relayed in the restaurant of the defendants till about 1-35 p.m. He made a note in his diary at the moment of what he actually heard and the number of people that were present. Counsel for the defendants argued that Mr. De Costa should not be believed as he is an interested witness because he is remunerated at the rate of Rs. 15 for every premises inspected by h ..... X X X X Extracts X X X X X X X X Extracts X X X X
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