Delhi High Court
Bureau Of Indian Standards vs Suresh Chandra Gupta & Others on 24 February, 2015
Author: Jayant Nath
Bench: Jayant Nath
$~A-37
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Decision: February 24., 2015
+ CS(OS) 2989/2012
BUREAU OF INDIAN STANDARDS ..... Plaintiff
Through Mr. Ramesh Kumar, Advocate.
versus
SURESH CHANDRA GUPTA & OTHERS ..... Defendants
Through Mr.S.K.Chachra, Advocate for D-1.
Mr.Rajiv Nayyar, Sr. Advocate with
Mr. Ankit Relan and Ms.Sanya,
Advocates for D-2.
Mr.Praveen Sehrawat and
Mr.Priyadarshi Banerjee, Advocates
for D-3.
CORAM:
HON'BLE MR. JUSTICE JAYANT NATH
JAYANT NATH, J. (Oral)
IA No. 9407/2013 (u/O 1 R 10 CPC)
1. This is an application filed by defendant No.2-Google India Pvt. Ltd. under Order 1 Rule 10 read with Order 7 Rule 11 CPC for being deleted from the array of parties and for rejection of the plaint qua defendant No.2.
2. The plaintiff has filed the present suit for a decree of Rs.1 crore as damages for defamation and illegal, irregular and excessive distress in favour of the plaintiff and against the defendants. A decree of permanent injunction is also sought against the defendants from hosting any blog containing any defamatory material tarnishing the image of the plaintiff.
3. Defendant No. 1 is said to be the previous employee of the plaintiff. Pursuant to certain major penalty procedure, defendant No.1 was CS(OS) 2989/2012 Page 1 of 6 compulsorily retired from the services of the plaintiff vide memo dated 05.03.1999.
4. It is stated that out of revenge and vendetta against the plaintiff, defendant No. 1 with mala fide and ulterior motives opened a blog on Google.com owned by defendants No. 2 and 3 where altogether false, baseless and highly defamatory allegations were published by defendant No.1 against the senior officers of the plaintiff. It is averred that defendants No.2 and 3 have aided and abated defendant No.1 in committing the offence by hosting the blog in their site/server.
5. Defendant No. 2 has filed the present application. It is urged that the present proceedings are not maintainable against defendant No.2 as the plaintiff has erroneous understanding of the functioning of the websites www.blogger.com and/or www.blogspot.com as well as www.google.com as well as ownership of rights therein. It is stated that defendant No.2 neither owns nor controls the said websites and that it is in fact defendant No.3 Google Inc. which controls the same. It is averred that defendant No. 2 is the subsidiary of Google Inc and does not control or regulate the operations or the activities of Google Inc on the internet. The said defendant No. 3 owns all rights and controls the operations of the impugned websites. In fact, it is averred, defendant No. 2 does not host any website. Hence, it is averred that defendant No. 2 is nowhere involved in uploading, sending or publication of the alleged defamatory contents posted on the impugned websites. On the basis of this, it is averred that defendant No. 2 is neither necessary nor proper party to the present proceedings. Reliance is placed on the judgment of this High Court in CS(OS) 676/2012 titled as Blueberry Books & Ors. vs. Google India Pvt. Ltd.& Ors. dated 28.11.2013 where it is averred that on the similar facts and circumstances, defendant No. 2 was deleted from the CS(OS) 2989/2012 Page 2 of 6 array of parties.
6. I have heard learned senior counsel for defendant No. 2 and the learned counsel for defendant No. 3 and the plaintiff.
7. Learned senior counsel has strenuously urged relying on the judgment of this Court in the case of Blueberry Books & Ors. vs. Google India Pvt. Ltd.& Ors.(supra) that the applicant/defendant No. 2 is neither necessary nor a proper party. Learned counsel for defendant No. 3 submits that the websites in question are fully owned by defendant no. 3 and defendant No. 2 has no right or interest or control on the said websites.
8. Learned counsel for the plaintiff has not been able to rebut the submissions of defendants No. 2 and 3 regarding the ownership of the websites in question.
9. We may also look at Order I Rule 10 CPC. Order I Rule 10(2) CPC reads as follows:-
"(2) Court may strike out or add parties--The court may at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear to the court to be just, order that the name of any party improperly joined, whether as plaintiff or defendant, be struck out, and that the name of any person who ought to have been joined, whether as plaintiff or defendant, or whose presence before the court may be necessary in order to enable the court effectually and completely to adjudicate upon and settle all the questions involved in the suit, be added."
10. Hence, the Court may at any stage strike out the name of any party who has been improperly joined or such person may be joined whose presence before the Court is necessary in order to enable the Court to fully or completely adjudicate upon and settle the questions.
11. In Mumbai International Airport Pvt. Ltd. vs. Regency Convention CS(OS) 2989/2012 Page 3 of 6 Centre & Hotels Pvt. Ltd.; 2007 SCC 417 the Supreme Court held as follows:-
"15. A "necessary party" is a person who ought to have been joined as a party and in whose absence no effective decree could be passed at all by the court. If a "necessary party" is not impleaded, the suit itself is liable to be dismissed. A "proper party" is a party who, though not a necessary party, is a person whose presence would enable the court to completely, effectively and adequately adjudicate upon all matters in dispute in the suit, though he need not be a person in favour of or against whom the decree is to be made. If a person is not found to be a proper or necessary party, the court has no jurisdiction to implead him, against the wishes of the plaintiff. The fact that a person is likely to secure a right/interest in a suit property, after the suit is decided against the plaintiff, will not make such person a necessary party or a proper party to the suit for specific performance.
.............
22.Let us consider the scope and ambit of Order 1 Rule 10(2) CPC regarding striking out or adding parties. The said sub-rule is not about the right of a non-party to be impleaded as a party, but about the judicial discretion of the court to strike out or add parties at any stage of a proceeding. The discretion under the sub-rule can be exercised either suo motu or on the application of the plaintiff or the defendant, or on an application of a person who is not a party to the suit. The court can strike out any party who is improperly joined. The court can add anyone as a plaintiff or as a defendant if it finds that he is a necessary party or proper party. Such deletion or addition can be without any conditions or subject to such terms as the court deems fit to impose. In exercising its judicial discretion under Order 1 Rule 10(2) of the Code, the court will of course act accordingly to reason and fair play and not according to whims and caprice."CS(OS) 2989/2012 Page 4 of 6
12. In Ramesh Hiranand Kundanmal vs. Municipal Corporation of Bombay; (1992)2SCC524 the Supreme Court held as follows:-
"The only reason which makes it necessary to make a person a party to an action is so that he should be bound by the result of the action and the question to be settled, therefore, must be a question in the action which cannot be effectually and completely settled unless he is a party. The line has been drawn on a wider construction of the rule between the direct interest or the legal interest and commercial interest. It is, therefore, necessary that the person must be directly or legally interested in the action in the answer i.e., he can say that the litigation may lead to a result which will affect him legally that is by curtailing his legal rights."
13. Similarly I may come to the judgment relied upon by the learned senior counsel for defendant No. 2. In Blueberry Books & Ors. vs. Google India Pvt. Ltd.& Ors.(supra) the court noted the contention of Google India Pvt. Ltd. that the plaint does not disclose a single instance of infringement against it and it is Google Inc which owns www.google.com.
14. In these circumstances, this Court noted as follows:-
"17. The mere fact that defendant No.1 happens to be the subsidiary of defendant No. 2, having its offices in Bangalore, Hyderabad, Mumbai and Gurgaon, does not automatically make it a necessary or proper party to the present suit. Google.Inc is a separate legal entity and has been impleaded separately as such. Interestingly, in its written statement, defendant No.2 has not questioned the jurisdiction of this court. It has submitted to the jurisdiction by filing its written statement. Consequently, the apprehension that defendant No.2 would avoid the jurisdiction of this court and, therefore, it is necessary to make its subsidiary defendant No.1 a party to the present suit, is misplaced."
15. In those facts, this court held that Google India Pvt. Ltd. is neither a necessary nor a proper party to the suit and directed its deletion from the CS(OS) 2989/2012 Page 5 of 6 array of parties.
16. In my opinion the above judgment of this court is squarely applicable to the facts of the present case. Defendant No.2 has nothing to do with the sites on which the alleged defamatory material was posted. The sites are owned by defendant No.3. Defendant No. 2 is neither a necessary nor a proper party. I direct deletion of defendant No. 2 from the array of parties. Amended memo of parties be filed.
17. The application is allowed.
CS(OS) 2989/2012 List before the Joint Registrar on 08.04.2015 for further proceedings.
JAYANT NATH, J.
FEBRUARY 24, 2015 rb CS(OS) 2989/2012 Page 6 of 6