Delhi District Court
Evergreen Publication vs . Gurukul Books Packaging & Ors. on 11 February, 2016
IN THE COURT OF SH. LALIT KUMAR:
ADDITIONAL DISTRICT JUDGE 01SOUTH EAST
DISTRICT, SAKET COURTS, NEW DELHI
TM 04/15
Evergreen Publication Vs. Gurukul Books Packaging & Ors.
ORDER
1. Vide this order I shall dispose off an application under Order XXXIX Rule 1 & 2 CPC filed by plaintiff seeking relief for restraining defendants, their agents, servants, dealers, stockiest, representatives, sellers, distributors and all other persons acting on their behalf from printing, publishing, offering for sale, selling or otherwise dealing directly or indirectly, in "Examination Question Papers for ICSE ClassX Examinations" conducted by defendant no.3.
2. Brief facts for disposal of present application are that present suit has been filed by the plaintiff against the defendants for seeking relief for infringement of copyright etc. TM 04/15 Evergreen Publication Vs. Gurukul Books Packaging Page no. 1 PLAINTIFF VERSION
3. It is averred that plaintiff is a public limited company and one of the leading publishers of Primary, Middle, Higher Secondary, Secondary Books and other educational supplements for sale and circulation throughout the republic of India.
It is averred that the defendant no.3 is a society registered under the Societies Registration Act, 1960 and recognized under Delhi Education Act as a Statutory body to conduct the examination at par with CBSE and has been constituted to conduct examinations of ICSE and ISC Board and as such covered under definition of Sections 17(dd) of the Copyright Act, 1957.
It is further averred that plaintiff got license from defendant no.3 for publication of previous years question papers of ICSE for the year 201517 and has a copyright for the same.
It is further averred that defendant no.1 and 2 are TM 04/15 Evergreen Publication Vs. Gurukul Books Packaging Page no. 2 engaged in publication and selling of previous years question papers of ICSE unauthorizedly and infringing the copyright of plaintiff by the defendant no.1 and 2.
It is averred that the question papers are developed under the control and superintendence of the defendant no.3 by taking the service of teachers and independent authors for setting the examination papers under exclusive agreement which shall be the exclusive property of defendant no.3.
It is further averred that the examination question paper is a 'original literary work' within the meaning of Section 13(1)(a) and Section 2(0) of the copyright Act, 1957 and as per Section 17 of the Copyright Act, 1957, Copyright of these questions papers are vested with the ICSE Board. The agreement of assignment/ relinquishment between the defendant no.3 and paper setter is available with the defendant no.3 on which plaintiff has no control but defendant no.3 has offered to produce it before the TM 04/15 Evergreen Publication Vs. Gurukul Books Packaging Page no. 3 court in sealed envelope. It is further averred that defendant no.3 can assign and / or license its right for publication and get royalty. By virtue of MOU dated 20.04.2015 the plaintiff, in lieu of consideration of Rs. 1,31,81,000/ for three years has been granted 'exclusive license' (within the meaning of Section 2(j) Copyright Act, 1957) by the defendant no.3 to print, publish, market and sell the said ICSE (Class 10th) & ISC (Class 12th) examination question papers for the year 2015 to 2017, including all past years examination question papers, throughout the Republic of India. Hence the plaintiff is entitled to bring an action for infringement of copyright being the owner of the copyright within the meaning of Section 54(a) of the Copyright Act, 1957.
4. It is further averred by the plaintiff that before the present proceeding, in the year 2004 same defendant no.2 was found to be publishing the Guide Book which in its essence was nothing but to include all past years questions TM 04/15 Evergreen Publication Vs. Gurukul Books Packaging Page no. 4 of ICSE board in which the plaintiff were enjoying copyright by reason of license from the defendant no.3 That led to filing of the suit against the defendant no.2. The suit no. 450/04 was instituted by the plaintiff against the defendant no.2 and decree was passed by the Court of Sh. Babu Lal, Ld. ADJ, Tis Hazari Courts and consequently the decree was passed against the defendant no.2 to pay damages of Rs. 1,07,808/. It is further argued that against the said decree, the appeal bearing RFA No. 23031/2006 was filed before the Hon'ble High Court of Delhi and decree as infringement of copyright by using the question paper in Model Guide book was upheld vide order dated 24.08.2007 by the Division Bench of Hon'ble High Court of Delhi. In such RFA the ratio of M/s Rupendra Kashyap Vs. Jiwan Publishing House, 1996(16)PTC 439 was upheld by the Double Bench. It is further averred that SLP bearing no. 7172/2009 was filed by the defendant before Hon'ble Supreme Court of India but no order have been passed TM 04/15 Evergreen Publication Vs. Gurukul Books Packaging Page no. 5 staying the finding of the Divisional Bench of Hon'ble High Court as far as infringement of copyright is concern. Thus the issue as to whether use of question paper in making the guide is infringement of copyright was finally decided by the DB. Said order against defendant no.2 as of today sustained and subsisting as the Hon'ble Supreme Court has not given any stay in the matter. It is further averred that since defendant no.1 is the agent of defendant no.2, it is operative against the defendant no.1 as well. The damages were confirmed on the ground that the infringement took place.
5. It is further averred that the defendant no.2 engaged its former employee as an agent i.e defendant no.1 and has formed syndicate to bypass the above decree and to restart the infringement activities again. The same defendant no.2 is now selling the same impugned infringing question papers by engaging defendant no.1. That change of publisher name has been purposely done TM 04/15 Evergreen Publication Vs. Gurukul Books Packaging Page no. 6 with illintent to bypass the order of the Hon'ble High Court of Delhi. It is further averred that evidently that impugned publication is made by the defendant no.1 and sale is effected by defendant no.2, even sale of the infringing publication is infringement of Copyright. It is further averred that present suit has been filed on the basis of license granted to the plaintiff for the period 201517 and fresh cause of action which has arisen out of inclusion of question papers for the year 201212 and 201314, even otherwise every infringement gives fresh cause of action till it is restrained by the court.
It is further averred that defendant no.3 (herein after called as Council) appoints Paper Setters for setting the Question Papers for its Class X and XII Examinations, who are paid remuneration for the said assignment. Defendant no.3 takes the services of teachers for setting the question papers and they are given detailed instructions by the Council for paper setting as per the prescribed syllabus. TM 04/15 Evergreen Publication Vs. Gurukul Books Packaging Page no. 7 The council has therefore exclusive copyrights in the said question papers. It is further averred that being the exclusive owner of copyright in the said Question Papers, the council has the right to grant license to a third party for publication of the past question papers and it has entered into a Memorandum of Understanding (MOU) dated 20.04.2015 with M/s Evergreen Publications (I) Ltd., the plaintiff herein, for printing, publishing and sale of question papers of the Council for the year 2015, 2016 and 2017 and examinations conducted prior to these years. The said MOU has been signed by the Deputy Secretary of the Council, being duly authorized to sign and execute the same in terms of letter of the Council dated 16.04.2015 filed on record by the plaintiff. In terms of the said MOU, it has been explicitly averred between the parties that if the past question papers are printed by any other printer or publisher, such firm shall be liable to prosecution for infringement of copyrights which are reserved with the TM 04/15 Evergreen Publication Vs. Gurukul Books Packaging Page no. 8 council and the plaintiff shall initiate appropriate legal action against the defaulting firm without any financial liability upon the council.
It is further averred that in view of the matter, the plaintiff has initiated action against the defendant no.1 & 2 as per the terms of the Memorandum of Understanding dated 20.04.2015. The Section 54(a) of the Copyrights Act clearly provides that for the purpose of civil remedies, the expression "owner of copyright" shall include an "exclusive licensee". Therefore, the action taken by the plaintiff is legal and proper.
It is further averred that since the Council engages the service of the paper setters for setting the question papers for its Class X and XII Examinations upon payment of remuneration, the paper setters have explicitly assigned all their rights in the Question Papers to the Council in writing. The documents furnished by the Paper Setters to the Council are not disclosed to the public at large in order TM 04/15 Evergreen Publication Vs. Gurukul Books Packaging Page no. 9 to maintain confidentiality of the paper setters and secrecy in the examinations. The paper setters engaged by the Council have assigned their copyrights to the Council, in terms of Section 18 and Section 19 of the Copyrights Act and the Council has granted license in writing to the plaintiff in terms of Section 30 of the Copyrights Act. The grant of exclusive license to the plaintiff is therefore legal and valid. It is further averred that apart from the above, the Council is also the owner of copyright in the question papers as per Section 17(dd) of the Copyright Act, 1957.
It is further averred that council has never allowed the defendant no.1 and 2 to publish and sell the past question papers of Class X and XII (ICSE & ISC) conducted by the Council. It is further averred that as per knowledge of plaintiff derived from the market, the defendant no.1 and 2 have published and started selling past years examination question papers of the Class X and XII (ICSE & ISC) conducted by the council without nay authorization TM 04/15 Evergreen Publication Vs. Gurukul Books Packaging Page no. 10 or license, which is patently illegal and an infringement of the exclusive copyrights licensed by the council to the plaintiff in terms of the MOU dated 20.04.2015.
In support of his averments, Ld. Counsel for plaintiff relied upon certain case law;
i) Rupendra Kashyap Vs. Jiwan Publishing House ii) Super Cassettes Industries Ltd. Vs. Hamar Television Network Pvt. Ltd. And Anr. iii) Indian Performing Right Society Ltd. Vs. Eastern Indian Motion Pictures Association and Ors. iv) The Institute of Chartered Accountants of India Vs. Shaunak H. Satya and Ors. v) Kunhayammed & Ors. Vs. State of Kerala & Anr vi) Indian Shaving Products Ltd. & Anr. Vs. Respondent:
Gift Pack & Anr.
DEFENDANT NO.1 & 2 VERSION
6. On the other hand, Ld. Counsel for defendant no.1 and 2 averred that the plaintiff is guilty of gross suppression, misrepresentation and nondisclosure and has TM 04/15 Evergreen Publication Vs. Gurukul Books Packaging Page no. 11 approached this court with unclean hands as he has suppressed the fact that the issues raised in the present suit are pending adjudication before the Hon'ble Supreme Court of India in SLP No. 71727173 of 2009 filed by the defendant no.2 against the plaintiff and where leave has already been granted. It is further averred that in the year 2001 plaintiff had filed a suit against defendant no.2 being suit no.2128/01 alleging infringement of copyright, passing off, and rendition of accounts for publication of previous question papers of examination conducted by the ICSE wherein Ld. Additional District Judge, Delhi was pleased to pass an exparte money decree on 27.09.2005 awarding a sum of Rs. 1,07,808/ in favour of the plaintiff and against the defendant no.2. It is further averred that the same order is pending adjudication before Hon'ble Supreme Court.
It is further averred that the plaintiff deliberately concealed the fact that the books published by the plaintiff TM 04/15 Evergreen Publication Vs. Gurukul Books Packaging Page no. 12 no.1 constituted only question papers whereas the books published and distributed by the defendants no.1 & 2, respectively, contained detailed model answerers and solutions to the question papers. It is further averred that the real contribution of the defendant no.1 is based not on the publication of questions, but the publication of the high standard of model answers to the questions, which have been developed by the defendant no.1 by application of their independent intellect, creativity, labour and resources, thus the publications of the defendant no.1 constitutes an independent literary work which cannot be said to have infringed any alleged right subsisting in favour of the plaintiff.
It is further averred by Ld. Counsel for defendant no. 1 & 2 that the concept of "originality" that has emerged from the plethora of judgments rendered on the concept of copyright states, interalia, to the effect that the copyright Act is not concerned with original idea but with the TM 04/15 Evergreen Publication Vs. Gurukul Books Packaging Page no. 13 expression of thought. Copyright has nothing to do with originality or literary merit. Copyrighted material is that what is created by the author by his own skill, labour and investment of capital, may be it is a derivative work which gives a flavour of creativity. The copyrighted work which come into being should be original in the sense that by virtue of selection, coordination or arrangement of pre existing data contained in the work, a work somewhat different in character is produced by the author.
It is further averred that even, if, assuming purely for the sake of argument but no conceding, that a copyright existed in such questions set for public examination, it could not naturally accrue in favour of the plaintiff no.1 or defendant no.3 without any written instrument of transfer from the natural person(s) creating such claimed, copyrighted work. The defendant no.3 itself being artificial person cannot be the author of the questions asked in aforesaid examinations. Therefore, the plaintiff no.1 has TM 04/15 Evergreen Publication Vs. Gurukul Books Packaging Page no. 14 completely failed to show how the defendant no.3 became owner of the alleged copyright in the questions asked in the ICSE examinations.
In support of his averments, Ld. Counsel for defendant no. 1 & 2 relied upon certain case law;
i) RG Anand Vs. M/s Delux Films, (1978) 4 SCC 118 ii) The Chancellor Masters and Scholars of the University of Oxford V. Narendra Publishing House in I.A 9823/2005, 51/2006 and 647/2006 in CS(OS) 1656/2005 iii) Bihar School Examination Board V. Suresh Prasad Sinha (2009) 8 SCC 483 iv) Makers Developement Services (P) Ltd. V M. Visvesvaraya Industrial Research & Development Centre, (2012) 1 SCC 735 at page 737. DEFENDANT NO.3 VERSION Defendant no.3 has also filed reply to the present application and submitted that a memorandum of understanding dated 20.04.2015 has been executed between defendant no.3 and plaintiff whereby plaintiff has TM 04/15 Evergreen Publication Vs. Gurukul Books Packaging Page no. 15 been granted exclusive right and license to print, publish and sell the examination paper of Class X and XII (ICSE and ISC) conducted by the defendant no.3 for the year 2015 to 2017. It is further averred by defendant no.3 that except plaintiff nobody else is entitled to do so in any form and manner whatsoever. It is further averred that as per knowledge derived to defendant no.3 from the market the defendant no.1 has published and started selling past year question papers of class XII which is an infringement of the sole and exclusive right of the plaintiff which has been granted by defendant no.3 as per the MOU as stated above. Any publication done by any person except plaintiff is wholly unauthorized, illegal and in violation of the provisions of MOU and the Copyright Act. It is further averred that the blatant infringement by the defendant no. 1 & 2 shall result dilution of exclusive right of the plaintiff. ARGUMENTS BY THE PARTIES
7. I have heard the arguments and have also gone TM 04/15 Evergreen Publication Vs. Gurukul Books Packaging Page no. 16 through the record as well as written submissions filed on behalf of parties.
8. The main contention of plaintiff for grant of injunction in his favour is that he has been granted exclusive license to print, publish, market and sell the examination question papers of Indian Council of Secondary Education (ICSE) Class X and Indian School Certificate Examination (ISC) Class XII for the year 201517 including exclusive rights to print, public, market and sell all past year examination question papers thereof vide MOU dated 20.04.2015 entered into between plaintiff and defendant no.3.
9. It is argued by Ld. Counsel for plaintiff that defendant no.1 in contravention of the MOU entered between plaintiff and defendant no.3, is engaged in publication of examination question papers of the plaintiff by ingenious way in form of guides book by infringing the copyright in the examination question papers which rights TM 04/15 Evergreen Publication Vs. Gurukul Books Packaging Page no. 17 have been exclusively vested with the plaintiff. Defendant no.1 is publishing and selling without obtaining license or consent from defendant no.3. Since exclusive license exists with the plaintiff, infringement of copyright directly or indirectly by anyone including the defendant no. 1 & 2 is not permitted. It is further argued that defendant no.2 is already facing the legal proceedings instituted by the plaintiff and suffered restraining order by the Hon'ble High Court of Delhi vide order dated 11.10.2001 in suit no. 2128/2001. However, defendant no.2 clandestinely found out a new way and floated another company in the name of defendant no.1 and made defendant no.1 a publisher name just to bypass the restraining order of Hon'ble High Court of Delhi.
It is further argued that defendant no.1 & 2 are well aware about the copyright of the plaintiff and thus they are infringing the copyright of the plaintiff intentionally just to cause loss to the plaintiff. It is further argued that due to TM 04/15 Evergreen Publication Vs. Gurukul Books Packaging Page no. 18 the aforesaid act the purchasing public who are mainly students, teachers and academicians are bound to be deceived because of the infringing examination question paper being sold by defendant no.1 & 2 in the market which result in dilution in the exclusive rights of the plaintiff.
It is further argued that by doing this act, defendant no.1 and 2 entered in an illegal trade, unfair trade practice, cheating the public at large and recurring loss to the plaintiff.
10. On the other hand, Ld. Counsel for defendant no.1 and 2 argued that the present suit of plaintiff has been filed without any cause of action and by concealing the material facts from this court and the order for interim injunction has been granted by misleading the court and hiding the material facts from this court. It is further argued by Ld. Counsel for defendant no. 1 and 2 that plaintiff has failed to show how the defendant no.3 became TM 04/15 Evergreen Publication Vs. Gurukul Books Packaging Page no. 19 owner of the alleged copyright of the questions which were asked in the board examination. Since defendant no.3 is neither the author nor has proved any ownership over the alleged copyright in the questions asked in ICSE examination. Defendant no.1 has published the answer book / guide in which answers are described step by step and are totally different in the manner then the plaintiff's one. The work of plaintiff is only for publication of questions asked in the aforesaid examination. The publication of defendant no.1 answer book / guide in which questions of the aforesaid examination are also mentioned is not amounting to reproduction, the plaintiff's alleged work and hence question does not arise of alleged infringement by the defendants. It is further argued that the publication of the answer book by the defendants comes under fair dealing and fair use because these answer book / guides described in a step by step matter and in an original manner. The answer to the question, out of the TM 04/15 Evergreen Publication Vs. Gurukul Books Packaging Page no. 20 infinite possible ways of expression. The purpose and use of such publication is to make the students understand the way to answer such question and to show the teacher the model answers of the particular question asked in the aforesaid examination for help in marking the same. As such the act of defendant is fair dealing and even in public interest and as such there is no violation of copyright acts as alleged by the plaintiff.
Ld. Counsel for plaintiff argued that the act of defendant as argued by Ld. Counsel for defendant does not fall under fair dealing and the same is subject of Copyright Act. To support this contention, Ld. Counsel for plaintiff relied upon case titled as The Institute of Chartered Accounts of India Vs. Shaunak H. Satya & Ors. wherein it is held that "the term intellectual property refers to a category of intangible rights protecting commercially valuable products of human intellect comprising primarily trademark, copyright and patent right, as also trade secret TM 04/15 Evergreen Publication Vs. Gurukul Books Packaging Page no. 21 rights, publicity rights, moral rights and right against unfair competition (vide Blacks Law Dictionary, 7th Edition, page 813). Question papers, instructions regarding evaluation and solutions to question which are furnished to examiners and moderators in connection with evaluation of answer scripts, are literary works which are product of human intellect and therefore are subject to a copyright.
It is argued by Ld. Counsel for defendant that plaintiff has suppressed the facts that plaintiff itself has been publishing the questions prior to the purported MOU and as such the plaintiff itself has not recognized the reproduction of the said questions in the said books amounting to infringement of the copyright as such the plaintiff is stopped from alleging the copyright violation by defendant no.1 & 2. It is further argued that the question papers of the examination conducted by defendant no.3 are freely available to the students who sit in the said examination and often repeatedly asked in subsequent TM 04/15 Evergreen Publication Vs. Gurukul Books Packaging Page no. 22 examination and as such there is no originality in the questions asked in ICSE Class X (Board) or any other examination conducted by defendant no.3. It is further argued that there is a lack of sufficient creativity in such questions and hence, there is no copyright existing in such questions. More over on account of publicly held examination wherein the students can even take the examination paper alongwith them, these examination papers form a part of public domain which is devoid of copyright. It is further argued that defendant has been publishing the answering book / guide since very long time which is well within the knowledge of plaintiff. It is further argued that defendant has preferred a SLP bearing no. 7172/2009 in the Hon'ble Supreme Court of Delhi which has been admitted against the order of Hon'ble High Court of Delhi dated 24.08.2007, however this fact has been concealed by the plaintiff who is very much in knowledge about the same. It is further argued that so far as order TM 04/15 Evergreen Publication Vs. Gurukul Books Packaging Page no. 23 dated 11.10.2001 of Hon'ble High Court of Delhi is concerned the same was only interim order. The said suit was transfered to District Court and it was finally disposed off on 27.09.2005 by the Court of Ld. ADJ, Delhi, however, no decree of injunction against the defendant was passed and as such the interim order dated 11.10.2001 became ineffective. It is further argued that since the SLP is pending before Hon'ble Supreme Court of Delhi, hence it can be said that no injunction is passed against defendant no.1 and 2.
11. Perusal of record reveals that plaintiff has initially filed an application under Order 39 Rule 1 & 2 CPC alongwith the suit however, subsequently he got the application amended and filed an amended application under Order XXXIX Rule 1 and 2 CPC. I have gone through both these applications, however, I could not find any averment by plaintiff with regard to special leave petition filed in Hon'ble Supreme Court. It is further seen that SLP TM 04/15 Evergreen Publication Vs. Gurukul Books Packaging Page no. 24 pertaining to the year 2009 which is pending adjudication.
It is argued by Ld. Counsel for the plaintiff that SLP has been filed on behalf of defendant before Hon'ble Supreme Court, however, Hon'ble Supreme Court has not stayed the order of Division Bank of Hon'ble High Court of Delhi. Till date the order of Division Bench of Hon'ble High Court of Delhi is in operation and the issue as to whether use of question papers in making the guide is infringement of copyright has already been finally decided by the Division Bench of Hon'ble High Court of Delhi. Since, defendant no.1 is the agent of defendant no.2 hence, this order is operative against the defendant no.1 as well. It is further argued by Ld. Counsel for plaintiff that merely filing a SLP against order of Division Bench of Hon'ble High Court does not reflect any modification in the challenged order. To prove this contention, Ld. Counsel for plaintiff relied upon a judgement titled as Kunhayammed & Ors Vs. State of Kerala & Ors. in CA No. 12309/1996 TM 04/15 Evergreen Publication Vs. Gurukul Books Packaging Page no. 25 dated 19.07.2000 of Hon'ble Supreme Court of India wherein it has been held that "inspite of a petition for leave to appeal having been filed the judgement decree or order against which leave to appeal has been sought for continued to be final, effective and binding as between the parties. Once leave to appeal has been granted, the finality of the judgement, decree or order appeal against is put in jeopardy though it continued to be binding and effective between the parties unless it is a nullity or unless the court may pass specific order staying or suspending the operation or execution of the judgement, decree or order under challenged."
12. It is argued by Ld. Counsel for the defendant that the motive of plaintiff is of a commercial nature. The society at large, particularly the students who appeared in ICSE examination must be in possession of the question papers if they allowed by the examiners to be carried with them after the examination. Once, the question paper which TM 04/15 Evergreen Publication Vs. Gurukul Books Packaging Page no. 26 comes in the public domain cannot be said to have a copyright of a particular board. The method of solving the questions can be vary from people to people and from mind to mind. Conducting an examination by any board cannot be held into category of commercial activity. In Bihar School Examination Board Vs. Suresh Prasad Sinha (2009)8 SCC 483, it is held that the process of holding examinations, evaluating answers script, declaring results and issuing certificates are different stages of a single statutory noncommercial function.
13. Ld. counsel for the plaintiff argued that the objection raised by the defendant can not sustain as plaintiff has been granted copyright by the council. The ground that other persons are also publishing the question papers cannot grant any relief to the defendant. To support his arguments, Ld. Counsel for plaintiff relied upon case law titled as Indian Shaving Products Ltd & Anr Vs. Gift Pack & Anr. decided by Hon'ble High Court of Delhi on TM 04/15 Evergreen Publication Vs. Gurukul Books Packaging Page no. 27 09.11.1998 in IA No. 5333 & 6040 of 1998 in Suit No. 1293/98 wherein it is held that "the Court cannot be expected to adjudicate upon a dispute which is not before it.
Ld. Counsel for defendant in support of his arguments relied upon case law titled as the Chancellor Masters and Schoolers of University of Oxford Vs Narender Publishing House in I.A. 9823/2005,51/2006 and 647/2006 in CS (OS) 1656/2005 Hon'ble High Court of Delhi held as under:
"The purpose and manner of use of the questions found int he plaintiff's textbooks, by the defendants in thus different; additionally, in their books, missing in the plaintiff's works are the steps or process or problem solving. Thus, the defendants" works can be said to be "transformative", amounting to "review" under Section 52 (1) (a) (ii) of the Act. Here, the term "review" has to be interpreted in the context. The plaintiffs claim to copyright is premised the work being a "literary" one. The review 'or commentary, of a part of such mathematical work " too would have to be seen in the background of this claim.. "Review"
according to the Shorter Oxford Dictionary (Fifth edition) means "view, inspect or examine a second time or again.. ' In the context of a mathematical work a review could TM 04/15 Evergreen Publication Vs. Gurukul Books Packaging Page no. 28 involve reexamination or la treatise on the subject. In that sense, the defendants' revisiting the questions, and assisting the students to solve them, by providing the "step by step" reasoning prime facie amounts to a review, thus falling within the "fair dealing" provision of Section 52 (1) (a) (ii) of the Act."
Ld. Counsel for plaintiff argued that since there is already stay in favour of plaintiff by the order of the Division Bench of Hon'ble High Court of Delhi, hence the same issue cannot be tried in this court. To support his contention, Ld. Counsel for plaintiff relied upon judgement titled as Ramchandra Dagdu Sonavane (Dead) by L.Rs & Ors Vs. Vithu Hira Mahar (Dead) by L.Rs & Ors decided by Hon'ble Supreme Court of India on 09.10.2009 wherein it is held that "if there is any issue between the parties that is decided, the same would operate as a resjudicata between the same parties in the subsequent proceedings.
It may be seen that the judgement relied by the defendants is pertaining to fair dealing and fair use of the TM 04/15 Evergreen Publication Vs. Gurukul Books Packaging Page no. 29 articles, however, this is not the case of the defendants that they are using it under fair dealing. Rather stand of defendant no.1 and 2 is that the work of plaintiff does not amount as a work of copyright. The case law relied upon by Ld. Counsel for defendant no.1 & 2 though hold correct position of law, however are not applicable under the facts and circumstances of the present case.
Ld. Counsel for plaintiff further relied upon a case titled as Solochana Amma Vs. Narayanan Nair decided by Hon'ble Supreme Court of India on 24.09.1993 wherein Section 11 of CPC elaborately discussed. Section 11 of CPC embodies the rule of conclusiveness as evidence or bars as a plea as issue tried in an earlier suit founded on a plaint in which the matter is directly and substantially in issue and became final.
15. Ld. Counsel for defendant no.3 argued that defendant no.3 has granted exclusive right for the printing and publication of question papers pertaining to year 2015 TM 04/15 Evergreen Publication Vs. Gurukul Books Packaging Page no. 30 to 2017 to the plaintiff who has an exclusive right to do so. Any infringement by anybody in any manner is in gross violation of the copyright granted to the plaintiff in view of MOU executed between defendant no.3 and plaintiff. It is further argued by Ld. Counsel for defendant no.3 that defendant no.3 has no objection if the present application of plaintiff is allowed and defendant no. 1 & 2 are restrained from printing and publishing the question papers as prayed by the plaintiff.
Arguments raised by Ld. Counsel for defendant no.3 supports the prayer of interim injunction made in the present application by the plaintiff.
16. It is admitted fact that the order of Double Bench has been appealed, however, it is also admitted that there is no stay by the Hon'ble Supreme Court against that order. The SLP was filed in the year 2009, however, till date defendant failed to get any stay against that order of Hon'ble Division Bench of Hon'ble Delhi High Court. In TM 04/15 Evergreen Publication Vs. Gurukul Books Packaging Page no. 31 absence of any stay from Hon'ble Supreme Court in SLP the order of Double Bench of Hon'ble High Court attained a finality and till date the same is in operation.
16. In view of my above discussion, I am of the opinion that plaintiff has prima facie established a case for interim injunction in his favour in view of aforementioned observations and balance of convenience lies in the favour of the plaintiff and the plaintiff has shown the irreparable loss that is caused to him if the interim injunction is not granted. Consequently, the application under Order XXXIX Rule 1 and 2 CPC moved on behalf of plaintiff is allowed. Defendant no.1 and 2 by themselves, through their agents, servants, dealers, stockiest, representatives, sellers, distributors and all other persons acting on their behalf are restrained from printing, publishing, offering for sale, selling or otherwise dealing, directly or indirectly, in "Examination Question Papers for ICSE ClassX Examinations" conducted by defendant no.3 till the TM 04/15 Evergreen Publication Vs. Gurukul Books Packaging Page no. 32 disposal of the suit.
17. Nothing in this order shall be construed as my observations on the merits of this case. Application stands disposed off accordingly.
Announced in the open (LALIT KUMAR)
court on 11.02.2016 Additional District Judge 01(SE),
Saket Courts, New Delhi.
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