Madhya Pradesh High Court
Shyam Singh vs Gsm Association And Anr. on 12 January, 2004
Equivalent citations: 2004(1)MPHT342, 2004(29)PTC57(MP)
Author: A.K. Shrivastava
Bench: A.K. Shrivastava
JUDGMENT A.K. Shrivastava, J.
1. This appeal has been preferred against the order dated 7-10-2002 whereby the suit of plaintiff has been dismissed under Order VII, Rule 11 (a) of the Code of Civil Procedure, 1908 (in short, "the CPC"). According to the Trial Court, as the plaint does not disclose any cause of action, as such, by invoking the provisions of Order VII, Rule 11 (a), CPC, the suit has been dismissed.
2. The plaintiff/appellant filed a suit for prohibitory injunction on the averment that on coming to know through the programme "The week in business", telecast by D.D. 2 Metro Channel of Doordarshan on 9-7-2001 at 8.00 A.M. that the defendant No. 1 is launching an international chassis numbering system for mobile phones, which is a technology based on "Zero", without actually using "zero". According to the plaintiff, by this technology, it is claimed that the mobile phones could be locked in case of theft and loss. In the plaint, it has been further pleaded that the plaintiff has adopted a new method of counting system which can identify "Zero" by the use of numbers in any one quadrant of a circle and this method can identify and convert it into a round figure. This system works on a zero-less scale on the graph meaning that the system does not use zero for the purpose of counting and only on the basis of placement of figure in any one quadrant of the graph, a value is assigned to it. The plaintiff claimed his copy right on this method under the Copyright Act, 1957 and the title of the work of the plaintiff's is "Y2K (SANKRANTI)". As defendant No. 1 is going to adopt/launch the said method for mobile phones, it would violate the plaintiff's Copyright and the defendant No. 1 intends to violate the same. The plaintiff served a notice on defendant No. 1 on 30-8-2001 by Fax calling upon it to abstain from introducing the international mobile phone chassis number system which infringes the plaintiff's registered Copyright, On the basis of these pleadings, the plaintiff prayed the following reliefs in the plaint :--
"(1) to prohibit the defendant No. 1 from launching zero-based international chassis numbering system for mobile phones without a permission being obtained from the plaintiff; (2) to grant any other relief which this Hon'ble Court deems fit in the facts and circumstances of the case to the plaintiff; and (3) Costs of the suit be awarded."
3. The Trial Court without issuing notices to the defendants dismissed the suit under Order VII, Rule 11 (a), CPC. The plaintiff has, thus, come up in this appeal.
4. I have heard Shri Imtiaz Hussain, learned Counsel for the appellant and Sarve Shri Vaidyanathan and Satish Sharma, Sr. Advocates with Shri J.K. Pillai and Mr. Manjul Bajpayee, Advocates for the respondent No. 1 and Shri Ashok Pali, learned Counsel for respondent No. 2.
5. On going through the impugned order passed by the learned Trial Judge it is gathered that despite having given several opportunities to the plaintiff he failed to furnish the requisite particulars in respect of cause of action accrued to him and hence the learned Trial Judge dismissed the suit under Order VII, Rule 11 (a), CPC.
6. Under Order IV, CPC, the procedure has been prescribed regarding institution of suits. Rule 1 of Order IV, CPC contemplates that every suit shall be instituted by presenting a plaint in duplicate to the Court or such officer as it appoints in this behalf. Before instituting the suit the plaintiff is required to comply with the rules contained in Orders 6 and 7 so far as they are applicable. Sub-rule (3) of Rule 1 of Order IV has been inserted by the Amendment Act, 1999. This sub-rule contains that the plaint shall not be deemed to be duly instituted unless it complies with the requirements specified in Sub-rules (1) and (2). On conjoint reading of Sub-rules (1), (2) and (3) of Rule 1 of Order IV, CPC, it is clear that the plaintiff is required to comply strictly the provisions contemplated under Orders VI and VII of the CPC, so far as they are applicable.
7. Rule 1 of Order VI, CPC, contemplates regarding "pleading" which means plaint or written statement. Rule 2 of this Order pertains to pleading to state material facts and not evidence. Rule 4 of Order VI, CPC is in respect to particulars to be given in respect to misrepresentation, fraud, breach of trust, wilful default, or undue influence and so on.
8. Order VII of CPC pertains to plaint. Under Rule 1 of this Order the plaintiff is required to furnish particulars like : name of the Court in which the suit is brought, description and place of residence of the plaintiff and defendant etc. etc. Rule 7 of this Order speaks about relief to be specifically stated. Under Rule 8 the plaintiff is required to seek relief in respect of several distinct claims or cause of action founded upon separate and distinct grounds. Thereafter under Rule 10, there is a provision for return of plaint to be presented to the Court in which the suit should have been instituted and under Rule 11, the legislature has conferred the powers to the Court to reject the plaint in the cases mentioned in this rule. Under Clause (a) if the plaint does not disclose a cause of action, the Court can reject the plaint.
9. If the aforesaid provisions are tested on the touchstone on the pleadings of the plaintiff in his plaint, it is luminously clear that the plaintiff has come forward with a clear case of prohibitory injunction on the basis of his Copyright under the Copyright Act, 1957, which is going to be infringed by the defendants as per the plaint averments. In the plaint, the plaintiff has specifically pleaded that he came to know that the defendant is going to launch a particular system of which the plaintiff is claiming his Copyright under the Copyright Act, 1957 and thus under Sections 38 and 39 of the Specific Relief Act, 1963, the plaintiff can file a suit for prohibitory injunction.
10. The learned Trial Court, even without issuing notices to the defendants dismissed the suit, under Order VII Rule 11 (a), CPC. According to me, there appears to be sufficient and material pleadings constituting the cause of action to file the suit by the plaintiff. It has been contended by the learned Counsel for the defendant No. 1 (respondent No. 1) that defendant is not going to launch any "zero-less" system. Be that as it may, this oral plea can not be accepted and the suit can not be thrown at its threshold, on this oral submission. According to me, this plea should be taken in the written statement, and if it is so taken, then the Trial Court may dispose of the suit under Order XV Rule 1, CPC if it appears to it on the first hearing of suit that the parties are not at issue on any question of law or of fact and in that case the Trial Court may at once pronounce the judgment.
11. The plaintiff pleaded numerous facts disclosing the cause of action and if this is the position, in my opinion, the suit could not have been dismissed under Order VII, Rule 11 (a), CPC. The cause of action and entitlement of the plaintiff are quite distinct. One may have cause of action and he may not be entitled for a particular relief, but, it would not mean that he has no cause of action to prosecute the suit. Even if, some evidence is required to be adduced to ascertain whether there is a cause of action or not the provision of Order VII Rule 11 (a) will not have any applicability. One should keep in mind that distinction should be drawn between a case where a plaint itself does not disclose a cause of action and another in which after considering the entire material on record the Court comes to the conclusion that there is no cause of action. According to me, in the latter case the plaint can not be rejected. To, me it is for the defendant to show and the onus is on defendant to show that the plaint does not disclose any cause of action and this could be done only if it appears and raised this objection either in the written statement or by filing separate application demonstrating that how the cause of action is not available to the plaintiff. As the present suit has been dismissed summarily without issuing notice to the defendants, in my opinion, the Trial Court committed gross error.
12. Before parting, I would like to observe that if the plaintiff fails to disclose any cause of action, the Court can not dismiss the suit under Order VII Rule 11 (a), CPC. It can very well reject the plaint. Here the Trial Court has dismissed the suit which is ex facie contrary to the provisions of Rule 11 of Order VII, CPC.
13. On the basis of the aforesaid premised reasons, the impugned order passed by the Trial Court dismissing the suit of plaintiff under Order VII Rule 11 (a), CPC is hereby set-aside. The Trial Court is hereby directed to proceed with the suit. The defendants are free to raise objection regarding non-availability of cause of action to the plaintiff and if such an objection is raised by the defendants, the same may be decided by the Trial Court in accordance with law. The parties are directed to appear before the Trial Court on 3rd February, 2004. No fresh notices shall be issued to the parties of the date.
14. In the result, the appeal succeeds and is hereby allowed. The parties are directed to bear their own costs.