Gujarat High Court
Diyora And Bhanderi ... vs Sarine Technologies Limited Through ... on 26 March, 2021
Equivalent citations: AIRONLINE 2021 GUJ 269
Author: N.V.Anjaria
Bench: N.V.Anjaria, A.C. Rao
C/SCA/5528/2021 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 5528 of 2021
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE N.V.ANJARIA
and
HONOURABLE MR. JUSTICE A.C. RAO
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1 Whether Reporters of Local Papers may be allowed to
see the judgment ? Yes
2 To be referred to the Reporter or not ? Yes
3 Whether their Lordships wish to see the fair copy of the
judgment ? No
4 Whether this case involves a substantial question of law
as to the interpretation of the Constitution of India or any No
order made thereunder ?
==========================================================
DIYORA AND BHANDERI CORPORATION,THROUGH ITS PARTNER,
PRAVIN DHARAMSHIBHAI LAKHANI & 13 other(s)
Versus
SARINE TECHNOLOGIES LIMITED THROUGH ITS AUTHORIZED
SIGNATORY MANOJ KUMAR
==========================================================
Appearance:
MR ANSHIN DESAI, SR. ADVOCATE WITH MR MANAN A SHAH(5412) for
the Petitioner(s) No. 1,10,11,12,13,14,2,3,4,5,6,7,8,9
MR NEERAJ KISHAN KAUL, SR. ADVOCATE WITH MR NEERAJ
MALHOTRA, SR. ADVOCATE WITH MR DILIP B RANA WITH MR
SANDEEP GROVER (691) for the Respondent(s) No. 1
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CORAM: HONOURABLE MR. JUSTICE N.V.ANJARIA
and
HONOURABLE MR. JUSTICE A.C. RAO
Date : 26/03/2021
ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE N.V.ANJARIA) Page 1 of 10 Downloaded on : Fri Mar 26 22:30:46 IST 2021 C/SCA/5528/2021 JUDGMENT Heard learned senior advocate Mr.Anshin Desai with learned advocate Mr.Manan Shah for the petitioners and learned senior counsel Mr.Neeraj Kishan Kaul with learned senior advocate Mr.Neeraj Malhotra with learned advocate Mr.Dilip Rana with learned advocate Mr.Sandeep Grover who appeared on behalf of the respondent, at length.
2. By invoking the jurisdiction of this Court in this petition filed under Articles 226 and 227 of the Constitution, what is sought to be called in question by the petitioners-original defendants is order dated 22nd February, 2021 passed by Commercial Court & 14th Additional District Judge, Surat, below application Exh.212 in Trademark Suit No.6 of 2019, whereby the said application Exh.212 which was for framing of additional issue came to e rejected.
2.1 The petitioners wanted the Court to frame the following additional issue in the suit, "Whether the parties prove that they provided the Documents, source code and object code for comparison of the copyrighted work, as directed by the Court by various orders which supported/ facilitated the comparison"
3. The Trademark Suit instituted by the plaintiff was in respect of alleged infringement by the defendants of the copyright of Advisor Software of the plaintiff. The defendants in their application seeking to raise an additional issue stated that the court below had passed order dated 12th February, 2018 requiring the plaintiff to submit in seal cover the certified copy of the source code and object code of Page 2 of 10 Downloaded on : Fri Mar 26 22:30:46 IST 2021 C/SCA/5528/2021 JUDGMENT copyrighted software. The source code is a set of instructions and statements written by the programmer by using the computer programming language. The object code is one which refers to low level code which is understandable by the machine. It was stated that the object code is generated from source code.
3.1 It was further stated in the application that similar directions were passed on 28th February, 2018 by the court below asking both the parties to furnish the copies of source code and object code in hard form as well as in digital form. The defendants thereafter preferred application Exh.92 under Section 151 of the Code of Civil Procedure, 1908 complaining that the directions of the court in the above regard were not being complied with by the plaintiff.
3.2 It was one of the main premises pleaded by the defendants that as per affidavit below Exh.89 filed by the plaintiff pursuant to order dated 28th February, 2018, the plaintiff had placed on record additional material other than the registered version of Advisor Version 6.0. According to the case of the defendants, the plaintiff was not supposed to produce the same. Also relied on was observations of the Supreme Court in 30th July, 2018 in Civil Appeal No.7304 of 2018 inter alia that the comparison shall be restricted to source code to object code in respect of the registered version. Another application Exh.113 seeking to redirect the plaintiff to submit the certified copy of the source code, came to be dismissed by the court. It was also sought to Page 3 of 10 Downloaded on : Fri Mar 26 22:30:46 IST 2021 C/SCA/5528/2021 JUDGMENT be contended that one Prof.Sarangi made the comparison but the defendants were not aware as to which documents were given by the plaintiff for the purpose.
3.3 Pleading as above and further referring to Order XIV, Rule 3, CPC, it was tried to contend that the issue was a crucial aspect in the case. It was submitted that therefore whether the parties provided correct documents, was needed to be converted into framing of an additional issue.
4. Noticing the facts it appears that at the stage of decision on interim injunction application, the matter had travelled to this Court and this Court, as recorded in the impugned order, directed by order dated 21st December, 2017 both the sides to submit their source code and object code to the trial court for sending it to independent expert for comparison. The case went to the Apex Court and order in Civil Appeal Nos.7304-7305 of 2018 came to be passed by the Supreme Court. It was observed by the Apex Court that the comparison should be restricted to source code to object code in respect of the registered version of the plaintiff. It appears that thereafter expert Mr.Zeidmen submitted his comparison report, however the findings of the said report were not conclusive for want of availability of certain files from the defendants.
4.1 Another order dated 12th December, 2019 came to be passed by the Supreme Court in Special Leave Page 4 of 10 Downloaded on : Fri Mar 26 22:30:46 IST 2021 C/SCA/5528/2021 JUDGMENT Petition No.21953 of 2019 arose from the very proceedings, whereby the neutral expert was appointed who submitted his report before the Supreme Court. The Special Leave Petition was disposed with following clarificatory observations.
"We make it clear that the matter must be argued on its own merits and we further make it clear that the aforesaid report that has been given to us is not conclusive of the matter in any manner. It is open for both the parties to adduce whatever evidence is available to them and ask for adducing of additional evidence, if otherwise permitted in law.
Shri Neeraj Kishan Kaul learned senior counsel appearing on behalf of the petitioner has made a request to us that it will be open for him to present his objections to the report submitted to us and if necessary, ask for additional evidence in the shape of other reports. We think this is a reasonable request and the learned District Judge would therefore, take into account this request and thereafter, decide the matter expeditiously strictly on its own merits."
4.2 Thus, the Apex Court clarified that the comparison report is not conclusive with respect to the matter in issue. The parties to the suit are having liberty to adduce evidence in support of their respective case.
4.3 After taking into account the events of various orders passed mentioned as above, in particular the orders of the Apex Court, the court below observed that the comparison of Source Code and Object Code to registered Version 6.0 of the software of the plaintiff was a question dealt with at the stage of interim application, whereafter the neutral expert was appointed by the Supreme Court, who gave report and in respect of his report, the Supreme Page 5 of 10 Downloaded on : Fri Mar 26 22:30:46 IST 2021 C/SCA/5528/2021 JUDGMENT Court has clarified that it will be open for both the parties to adduce evidence available with them including the additional evidence as may be permitted by law.
4.4 The matter stands poised at such stage, observed the court below.
"18. Now the interim stage is already over and we are at the trial, where the scope is with respect to registered version and also right under the common law. Another important aspect is that, the comparison report which is submitted is not conclusive in any manner and the Hon'ble Apex Court has specifically observed that parties are at liberty to adduce any further evidence in support of their case."
4.5 Thereafter it was reasoned in the next paragraph, "19. Thus the Comparison report is only a piece of evidence. It has to be noted that issues have to be framed with respect to the facts in dispute and not the evidence. Evidence is a matter of appreciation. A party may rely upon several evidences in support of his case. The Court cannot go on framing issue with respect to appreciation of each such evidence."
4.6 The trial court then observed, "20. The crux of the dispute between the parties is whether there is infringement of Plaintiff's Advisor Software by the Defendant or not. Comparison Report is only one of the piece of evidence among others to decide such issue of infringement. What is compared and what is not compared is not the crux of controversy between the parties but it is only a form of objection with respect to evidentiary and probative value and reliability of such evidence to decide the issue of infringement."
5. While there is no gainsaying that the court below has given the germane reasons as above to find Page 6 of 10 Downloaded on : Fri Mar 26 22:30:46 IST 2021 C/SCA/5528/2021 JUDGMENT the framing of additional issue to be not necessary and for rejecting Exh.212 application, and we are in agreement with the order passed by the court below, it is Order XIV, Rule 1, CPC deals with framing of issues. The issues arise when a material propositions of fact or law are asserted by one party and denied by the other. It is such material propositions which would be translated into framing of issues by the court. The issues may be of fact or may be of law.
5.1 As per Rule 3 of Order XIV, the court may frame issues from any of these materials-(a) allegations made on oath by the parties, or by any persons present on their behalf, or made by the pleaders of such parties; (b) allegations made in the pleadings or in answers to interrogatories delivered in the suit; (c) the contents of documents produced by either party. The issues essentially are thus points in dispute originating from the material assertion by one party and the rebuttal thereof by the other. They arise out and relate to the facts pleaded.
5.2 Now the issue sought to be framed by the defendants in this case is "Whether the parties prove that they provided the documents....". It is not fathomable in law whether the aspect relating whether the parties have provided certain documents in relation to the controversy, can become the subject matter of framing of an issue. For sake of consideration, even if there is non-production of any document by either party, such position would connect Page 7 of 10 Downloaded on : Fri Mar 26 22:30:46 IST 2021 C/SCA/5528/2021 JUDGMENT with evidence part and may or may not result into a lacuna in merits, in course of trial. When the issues are to steam from material pleadings and the assertions and denial thereof, whether a party has provided document or has produced document other than the relevant facts in controversy, cannot be a subject matter of drawing an issue.
5.3 The petitioners' case is that relevant documents were not produced, but other than such came to be produced by the plaintiff, therefore the additional issue may be framed. The question whether parties prove that they have provided particular documents or that they have provided the proper documents, would not properly fall within the purview of framing of an issue having regard to the legal concept of 'issue' to be framed in the suit as envisaged in the provisions of the Code of Civil Procedure.
5.4 The above aspect apart, it is well settled that in exercise of framing of issues, no rights of the parties are crystalised. Nor the issues themselves reflect anything on the rights of the parties. Issues are framed to make the sphere of controversy concise and precise. When by framing or non-framing of issue, party's rights are not affected much less adjudicated, the court could countenance the submission on part of the respondent that such matters are not to be validly gone into in exercise of the jurisdiction under Article 227 of the Constitution. When the parties lead evidence, the Page 8 of 10 Downloaded on : Fri Mar 26 22:30:46 IST 2021 C/SCA/5528/2021 JUDGMENT aspects of merit, even if not properly reflected in the framing of issues, could indeed be taken care of.
5.5 Reverting back to the aspects and the facets in the controversy, the stage of leading of evidence is being undergone. It has to be recounted that there is no conclusiveness attached to the comparison report submitted by the expert. The matter is to be argued on its own merits, as eminently clarified by the Apex Court in order passed in SLP No.21953 of 2019. The comparison report given to the Apex Court is provided not to be conclusive in any manner. In this clearly set perspective, no prejudice at all has occasioned or is going to occasion to the petitioners-defendants when their application for framing the additional issue as above has been rejected.
6. When, speaking generally, framing or non- framing of issue does not imping upon any right of any party in the suit, and considered specifically in the context of the facts of this case, when there is no prejudice to occur, and the evidence could be led by both the sides including the petitioners in respect of points in dispute and the controversy, the case and insistence for framing additional issue as above, which even otherwise has no substance, falls flat.
6.1 There is no illegality in the order of the court below in refusing to frame the additional issue. There exist no ground to interfere with the Page 9 of 10 Downloaded on : Fri Mar 26 22:30:46 IST 2021 C/SCA/5528/2021 JUDGMENT impugned order.
7. The petition is misconceived and meritless. It is dismissed.
(N.V.ANJARIA, J) (A. C. RAO, J) ANUP Page 10 of 10 Downloaded on : Fri Mar 26 22:30:46 IST 2021