Delhi High Court
Peepee Publisher & Distributors (P) ... vs Dr. Neena Khanna & Anr. on 8 May, 2009
Author: Manmohan Singh
Bench: Manmohan Singh
* HIGH COURT OF DELHI : NEW DELHI
+ IA No.4401/2008 in CS (OS) No.2157/2007
% Judgment reserved on : 16th April, 2009
Judgment pronounced on : 8th May, 2009
PEEPEE Publisher & Distributors (P) Ltd. ...Plaintiff
Through : Mr. Jagdish Sagar, Adv. with Mr. Aalok
Jain, Adv.
Versus
Dr. Neena Khanna & Anr. .... Defendants
Through : Mr. Rajiv Nayar, Sr. Adv. with Ms. Jyoti
Taneja and Mr. Shine Joy and Ms.
Urvashi Basale, Advs.
Coram:
HON'BLE MR. JUSTICE MANMOHAN SINGH
1. Whether the Reporters of local papers may
be allowed to see the judgment? Yes
2. To be referred to Reporter or not? Yes
3. Whether the judgment should be reported
in the Digest? Yes
MANMOHAN SINGH, J.
1. The plaintiff filed the suit for permanent injunction against infringement of copyright, breach of contract, defamation, damages and delivery up etc. against the defendants for restraining him or any of its agents etc. to interfere with the plaintiff‟s copyright in the book titled as "Synopsis of Dermatology and Sexually Transmitted Diseases"
(hereinafter referred to as "Dermatology").
2. In the plaint, the plaintiff submits that the defendant No.1 is Professor of Dermatology and Venereology at the All India Institute of Medical Sciences, New Delhi-1100 29. She is the author of the book CS (OS) No.2157/2007 Page 1 of 7 Dermatology, which has been published by the Plaintiff in 2005 and reprinted in 2006 and in 2007. A copy of the third reprint is filed in the present proceedings. For the purpose of publishing this book, the plaintiff entered into a copyright assignment and publishing agreement with Defendant No.1 in 2003, which was subsequently modified and superseded by another agreement dated 1st September, 2005.
3. In view of the agreement entered between the plaintiff and defendant No.1, it is alleged that plaintiff has complete assignment of copyright in respect of rights related to publishing book format.
4. In the present application IA No.4401/2008 under Order VI Rule 17 filed by the plaintiff, amendment is sought to the effect that defendant No.1 is (except as mentioned hereinbelow) the author of the book titled "Dermatology". It is averred by the plaintiff that the defendant intended to bring out an infringing second edition of the book titled „Dermatology‟ in which the plaintiff owns copyright incorporating certain pictures and drawings made by the plaintiff.
5. The suit was filed on 29th October, 2007 and summons were issued on 30th October, 2007. The defendant filed the written statement along with a copy of the book which was allegedly put in the market before filing of the written statement. The matter was thereafter fixed for 14th November, 2007.
6. It is submitted by the plaintiff that while the book Dermatology, which was first published by the Plaintiff, was under
preparation in late 2004, the plaintiff had supplied to the defendant No.1 a number of line drawings which were utilized in the book by CS (OS) No.2157/2007 Page 2 of 7 defendant No.1. It is further submitted that the said drawings were prepared on the plaintiff‟s computer by his employee Mr. Avdhesh Kumar Maurya, and the plaintiff is, therefore, the first owner of copyright under Section 17(c) of the Copyright Act. The plaintiff did not mention this fact in the original plaint because he thought that the same would not be reutilized in the new edition of the book and the defendant No.1 was expected to make some changes in the illustrations of the book (as in fact she subsequently did).
7. The Plaintiff examined the said book in detail only when the written statement was filed by the defendants alongwith the copy of the book. At this point, he noticed that the Defendant no. 1 retained and reused the illustrations which had been supplied by the plaintiff and of which the plaintiff was owner of copyright under Section 17 (c) of the Copyright Act.
8. The plaintiff therefore pleaded that he could not have known the abovesaid fact till the time when the plaint was originally filed. The book was to be put in the market in 2008 and not available when the plaint was filed i.e. in October, 2007. The plaintiff also filed an application being IA No.309/2008 to bring on record certain additional documents necessitated by the untrue averments of the defendants in their written statement wherein this court vide order dated 9 th January, 2008 directed that the plaintiff shall make an appropriate application for amendment of the plaint and if he takes additional pleas by amendment of the plaint he may also rely on additional documents.
9. The defendants submits that they had announced publication CS (OS) No.2157/2007 Page 3 of 7 on the subject work on 1st October, 2007 and distributed their work on 8th October, 2007 after which the plaintiff has instituted the present suit. The alleged fact of copying the pictures must, therefore, be in the knowledge of the plaintiff at the time of institution of the suit. It is denied that the defendants took out second edition of their book in market somewhere around 6th November, 2007.
10. The defendants are relying upon the statement made by the plaintiff in the plaint in para 2 wherein an admission has been made to the effect that the defendant No.1 is the author of the book and hence the alleged amendment cannot be allowed in view of the admission made by the plaintiffs in the plaint. They have also alleged that irretrievable prejudice would be caused to the defendants if amendment which is itself contradictory and is mutually disruptive of admitted pleas is allowed.
11. It is denied that the defendants filed any copy of the defendants publication alongwith their written statement on 29 th November, 2007.
12. Another plea of the learned counsel for the defendants is that the plaintiff by virtue of the amendment application is attempting to alter the cause of action as originally pleaded in the plaint. It is submitted that the plaintiff in the original plaint has limited its cause of action to breach of contract and consequent infringement of copyright. By virtue of amendment, the plaintiff is claiming to be the owner of copyright in the material in the subject work of the second edition of the defendant‟s book.
CS (OS) No.2157/2007 Page 4 of 7
13. I do not agree with the contention of the defendants that the amendment sought by the plaintiff will change the cause of action or it is not necessary in the facts and circumstances of the reasons given in the pleading.
14. The amendment sought by the plaintiff is on the specific grounds that the book of defendant No.2 was not in the market before 6th November, 2007 and definitely before filing of the suit. It can not be disputed by the defendants that a copy of the publication of the book was attached by the defendants with the written statement only. The claim of the plaintiff cannot be rejected when the statement is made by the plaintiff that on inspection of this publication, he came to know that the defendant No.1 has infringed the plaintiff‟s copyright by including in the infringing second addition of Dermatology, the drawings which the plaintiff had permitted to use for the first edition.
15. It has also been alleged that the drawings used in the second edition are exactly on the same lines as were used in the first edition. In my view, the plaintiff in the plaint impliedly alleged copyright in the pictures and drawings utilized in the book titled as „Dermatology‟.
16. The defendants have brought out the second addition of the book undisputedly after the suit was filed by the plaintiff. From the documents produced by the defendants alongwith the written statement, it is apparent that book was intended to be published in 2008 but came out in 2007. The plaintiff could not have been aware of the infringing act of the defendant at the time of filing of the suit. The allegation of the plaintiff that the defendant has infringed the copyright of the CS (OS) No.2157/2007 Page 5 of 7 plaintiff to the number of drawings and illustrations by reproducing the exact replica of the drawings of the first edition is the matter of trial and therefore, in my view the amendment sought by the plaintiff should be allowed in order to decide the real controversy and dispute between the parties. Further, by allowing the present application, this court is not deciding the rival submission of the parties on merit. These have to tested in the light of evidence produced by the parties, hence the amendment cannot be refused as sought for.
17. In the case of Savitri Minda vs. Minda Industries, 1997 PTC 257, this Court allowed the amendment of the plaint under Order VI Rule 17 observing that the courts should be liberal in the matter of allowing amendment unless serious injustice or irreparable loss is caused to the other side. The Courts exist to decide the rights of the parties and not to punish them for the mistake they make in the conduct of their cases.
18. In the case of Shri Saif-ul-Islam Co. L.P. v. Roshan Lal Arora, 2003 AIHC 2966 (2968) (Del), it was held that where pleadings are defective, amendment would be allowed. It is also settled law that amendments to plead material facts left by oversight and which does not cause prejudice to other side would be allowed.
19. It is settled law that courts cannot go into the truth or falsity or maintainability of the case in amendment. There is a necessity for amendment in the present case arising out of the circumstances happening after filing of the plaint. I consider that for complete and CS (OS) No.2157/2007 Page 6 of 7 effective adjudication of the dispute between the parties, amendment is to be allowed. No prejudice/injustice would be caused to the defendants in case the present application for amendment is allowed.
20. The application is allowed. The amended plaint is taken on record. Consequently, additional documents filed with the amended plaint are also allowed and be taken on record.
CS (OS) No.2157/2007
List the matter before Court on 6th July, 2009.
MANMOHAN SINGH, J MAY 08, 2009 sa CS (OS) No.2157/2007 Page 7 of 7