Delhi High Court
Shriram Bharatiya Kala Kendra vs Shubha Mudgal on 23 November, 2010
Author: V. K. Jain
Bench: V.K. Jain
THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment Pronounced on: 23.11.2010
+ CS(OS) No. 202/2004
SHRIRAM BHARATIYA KALA KENDRA .....Plaintiff
- versus -
SHUBHA MUDGAL .....Defendant
Advocates who appeared in this case:
For the Plaintiff: Mr. Jagdish Sagar, Advocate.
For the Defendant: Mr. C.M.Lall, Advocate.
CORAM:-
HON'BLE MR JUSTICE V.K. JAIN
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 the judgment should be reported Yes
in Digest?
V.K. JAIN, J. (ORAL)
IA 9591/2010 (for amendment of plaint)
1. This is an application for amendment of plaint. The plaintiff wants to make amendments in paras 5, 8, 10, 11 and 22 of the plaint.
2. This is a suit for permanent injunction, rendition of accounts and delivery up etc. The case of the plaintiff is that the defendant No.1 who is an artist of repute and a CS(OS)NO.202/2004 Page 1 of 12 well-known personality in the world of music and theatre was associated with it since the year 1993 when the plaintiff got musical pieces composed by her for consideration, for dance dramas titled "Parikrama", "Krishna Katha", "Bandish", "Meera" and for the Shankar Music Festival. It has been alleged in para 8 of the plaint that in the year 1995, the plaintiff commissioned defendant No.1 to compose certain musical pieces for a dance drama to be produced by the plaintiff under the title "Meera" for which she was duly remunerated. She composed musical pieces to blend with the appropriate sequence of the dance drama and thereafter the plaintiff made sound recordings with the combination of music, lyrics, choreography and the artists. The plaintiff claimed to be the owner of the sound recordings in terms of Section 2(uu) of Copyright Act, 1957, as amended w.e.f. 10.05.1995.
3. It is further alleged in the plaint that the plaintiff came across audio-cassettes being sold by defendant No.2 under the title "Shubha Mudgal - Ali More Angna" and on listening the aforesaid cassette, the plaintiff realized that defendant No.1 had sung the same composition in the cassette which she had prepared for the plaintiff for its CS(OS)NO.202/2004 Page 2 of 12 dance drama titled "Meera" in the musical work. It has also been alleged that in her letter dated 18.07.1996 sent to one Mr.Jawahar Wattal, defendant No.1 had stated that the plaintiff was the owner of the musical composition titled "Dhaaram Sarikha" which was composed by her for the plaintiff.
4. In para 13 of the plaint, it has been alleged that as the owner of the copyright in the sound recordings comprising the said musical compositions, the plaintiff has the exclusive right under Section 14 of the Act to make any other sound recording embodying it; to sell or give on hire, or offer for sale or hire, any copy of the sound recording regardless of whether such copy has been sold or given on hire on earlier occasions; and to communicate the sound recording to the public. In para 14 of the plaint, it is alleged that the defendants were obliged to seek a licence from the plaintiff to reproduce any part of the musical compositions embodied in its sound recording and to pay the necessary royalties thereon.
5. In the prayer clause, the plaintiff has sought injunction restraining the defendants from reproducing or making re-recordings of the plaintiff's sound recording of CS(OS)NO.202/2004 Page 3 of 12 the work tilted "Meera" or any other sound recording which defendant No.1 may have undertaken for the plaintiff, in contravention of the provisions of Section 14(e) of the Copyright Act. It has also sought injunction restraining the defendants from holding out that they are authorized by the plaintiff to reproduce, market and sell the impugned audio cassettes and from passing off the musical compositions contained therein under whichever title, as those of the plaintiff.
6. Now, besides making certain averments in para 5 of the plaint with respect to goodwill of the plaintiff, it also wants to plead that music which was composed by defendant No.1 amounts to joint authorship by the plaintiff. In para 10 of the plaint, the plaintiff wants to claim that it is the owner of copyright in the sound recording, in addition to its claim in the music. In para 11 of the plaint, the plaintiff wants to plead that listening to the cassette, the plaintiff realized that defendant No.1 had sung the same composition which she had prepared for the plaintiff, thereby passing off the same is entirely her production. The prayer clause is also sought to be amended by claiming contravention of the provisions of Section 14(a) in addition CS(OS)NO.202/2004 Page 4 of 12 to Section 14(e) which was claimed in the first amended plaint. The plaintiff also wants to claim that the musical composition contained in the cassettes could not be claimed as exclusively of defendant No.1. Thus, in nutshell, the plaintiff is now seeking also to claim joint ownership in respect of the music which defendant No.1 had composed and was used in the sound recordings on the ground that the same was prepared by defendant No.1 at the instance of the plaintiff and she was duly paid for the same though no such claim was made by it in the original plaint. The copyright claimed in the original plaint is essentially with respect to sound recordings prepared by the plaintiff, using the music composed by defendant No.1. No copyright in the music was claimed by the plaintiff is also evident from his prayer seeking injunction against the plaintiff passing off the musical composition as that of the plaintiff. Thus, an altogether new claim/right i.e. joint ownership in the music is proposed to be set up by way of the proposed amendment.
7. Section 14(a) of Copyright Act refers to copyright in literary, dramatic or musical work, not being a computer programme whereas Section 14(e) deals with copyright in CS(OS)NO.202/2004 Page 5 of 12 respect of a sound recording. It is quite clear from a perusal of the plaint that the case set up by the plaintiff was for copyright in respect of the sound recording and not in respect of the musical work which was composed by defendant No.1 and was used during the course of sound recording. That also explains why the plaintiff referred to Section 14(e) in the plaint without any reference to Section 14(a) of the Act. The learned counsel for the defendant is right in saying that by way of proposed amendment, the plaintiff is now also seeking to claim joint copyright along with defendant No.1 in the musical work used during the course of sound recording, which it had not claimed in the original plaint. This is also his contention that the claim for copyright in respect of the musical work is now barred by limitation and now if the plaintiff were to file fresh suit claiming joint copyright in respect of the musical work, that would also be hit by Order II Rule 2 of CPC, having not being claimed in the present suit.
8. It is settled proposition of law that an amendment should generally be allowed, unless it is shown that permitting the amendment would be unjust and would result in prejudice to the opposite party which cannot be CS(OS)NO.202/2004 Page 6 of 12 compensated by cost or would deprive him of a right which has accrued to him with the lapse of time. Errors or mistakes, if not fraudulent, should not be made a ground for rejecting the application for amendment of plaint or Written Statement. If there is no undue delay, no inconsistent cause of action is introduced and no vested interest or accrued legal right is affected and the application for amendment is not mala fide or will not prejudice the opposite party, the amendment should ordinarily be allowed.
9. In Ravajeetu Builders and Developers vs. Narayanaswamy and Sons and Ors. (2009) 10 SCC 84, Supreme Court, after reviewing the case law on the subject, laid down certain principles which ought to be taken into consideration while allowing or rejecting the application for amendment. One of the principles laid down by the court was that as a general rule, the Court should decline amendments if a fresh suit on the amended claims would be barred by limitation on the date of application.
In Shiv Gopal Sah alias Shiv Gopal Sahu vs. Sita Ram Saraugi and Ors.(2007) 14 SCC 120, Supreme Court inter alia observed as under:-
CS(OS)NO.202/2004 Page 7 of 12
"It is quite true that this Court in a number of decisions, has allowed by way of an amendment even the claims which were barred by time. However, for that there had to be a valid basis made out in the application and first of all there had to be bona fides on the part of the plaintiffs and a reasonable explanation for the delay. It is also true that the amendments can be introduced at any stage of the suit, however, when by that amendment an apparently time-barred claim is being introduced for the first time, there would have to be some explanation and secondly, the plaintiff would have to show his bona fides, particularly because such claims by way of an amendment would have the effect of defeating the rights created in the defendant by lapse of time. When we see the present facts, it is clear that no such attempt is made by the plaintiffs anywhere more particularly in the amendment application."
10. This suit was filed on 11.10.1996. It cannot be disputed that if the plaintiff were to file a fresh suit claiming joint ownership of the music composed by defendant No.1, such a claim would be barred by limitation and would also be hit by Order II Rule 2 of CPC on account of its not having been claimed in the present suit. The proposed amendment, therefore, if allowed would take away a vested right which has accrued to the defendants on account of this relief CS(OS)NO.202/2004 Page 8 of 12 having become barred by limitation. In the case before this Court, there is not an iota of explanation for seeking the proposed amendment after 14 years of the filing of the suit which indicates lack of bona fides on the part of the plaintiff and since it has the effect of defeating the right which has accrued to the defendants by lapse of time, it should not be allowed.
11. Order VI Rule 17 of the Code of Civil Procedure provides that no application for amendment shall be allowed after the trial has commenced, unless the Court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial.
12. In Vidyabai vs. Padmalatha 2009 (2) SCC 409, referring to the proviso added to Order VI Rule 17 of CPC by way Civil Procedure Code (Amendment) Act, 2002, Supreme Court observed that the proviso is couched in a mandatory form and held that the jurisdiction of the Court to allow an application for amendment is taken away unless the conditions precedent therefor are satisfied viz. it must come to a conclusion that in spite of due diligence the parties could not have raised the matter before the commencement CS(OS)NO.202/2004 Page 9 of 12 of the trial. The Court clearly held that no application for amendment shall be allowed unless the Court is satisfied that in spite of due diligence the matter could not be raised before the commencement of trial. The Court was of the view that the proviso puts an embargo on the exercise of jurisdiction by the Court and unless the jurisdiction fact as envisaged in the proviso is found to be existing, the Court will have no jurisdiction at all to allow the amendment of the plaint.
In Rajkumar Gurawara (Dead) through LRs. Vs. S.K. Sarwagi and Co. Pvt. Ltd. and Anr. AIR 2008 SCC 2303, Supreme Court, referring to the aforesaid proviso to Rule 17 of Order VI, inter alia, observed as under:-
"The said rule with proviso again substituted by Act 22 of 2002 with effect from 01.07.2002 makes it clear that after the commencement of the trial, no application for amendment shall be allowed. However, if the parties to the proceedings able to satisfy the court that in spite of due diligence could not raise the issue before the commencement of trial and the court satisfies their explanation, amendment can be allowed even after commencement of the trial. To put it clear, Order VI Rule 17 C.P.C. confers jurisdiction on the Court to allow CS(OS)NO.202/2004 Page 10 of 12 either party to alter or amend his pleadings at any stage of the proceedings on such terms as may be just. Such amendments seeking determination of the real question of the controversy between the parties shall be permitted to be made. Pre-trial amendments are to be allowed liberally than those which are sought to be made after the commencement of the trial. As rightly pointed out by the High Court in the former case, the opposite party is not prejudiced because he will have an opportunity of meeting the amendment sought to be made. In the latter case, namely, after the commencement of trial, particularly, after completion of the evidence, the question of prejudice to the opposite party may arise and in such event, it is incumbent on the part of the Court to satisfy the conditions prescribed in the proviso."
13. There is not a whisper in the application as to why the amendments proposed by way of the present application could not be incorporated either when the suit was filed or when the plaint was first amended. The proviso to Rule 17 of Order VI of Code of Civil Procedure cannot be rendered a dead letter by allowing amendment even after the trial has begun, when there is not even an attempt to show why the proposed amendment was not made before commencement of trial. Issues in this case have already been framed on CS(OS)NO.202/2004 Page 11 of 12 30.10.2006. Affidavits by way of evidence have already been filed by the plaintiff. As laid down in Kailash vs. Nanhku (2005) 4 SCC 480, the Trial Court is deemed to commence when the issues are settled and the case is set down for recording of evidence.
In these circumstances, the proposed amendment cannot be allowed. The application is devoid of any merit and is hereby dismissed.
(V.K. JAIN) JUDGE NOVEMBER 23, 2010 'SN'/BG CS(OS)NO.202/2004 Page 12 of 12