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3. An ex-parte order directing the defendants to remove the alleged objectionable contents as claimed by the respondent No.1 to be available on various social networking sites was passed when the matter came up for hearing along with another direction to the defendants to file a compliance affidavit.

4. While the petitioner at the time of entering appearance in the suit filed a compliance affidavit in terms of the said order, it also filed an application for deletion of its name from the array of parties wherein it was stated that the Petitioner was not responsible for hosting the content that may appear on www.facebook.com or any website and that it does not control the servers and host the website www.facebook.com which are located in the US. On the same day, the learned trial court observed that the Petitioner i.e. defendant No.1 therein and defendant No.2 were improperly referred to as one and the same party i.e. Facebook in the cause title of the suit, and accordingly, the Respondent No.1 was directed to rectify the memo of parties.

8. Facebook Inc. (Defendant no.2 therein) in its written statement admitted that it controls and/or operated the social networking website www.facebook.com.

9. When the petitioner's application for deletion of its name from the array of parties was heard by the learned trial court, it was contended by the petitioner that it is neither a necessary nor a proper party for adjudication of the case. It was contended that Petitioner had been impleaded incorrectly as there is no legal entity by the name of Facebook, in fact its name has not been correctly mentioned in the cause title of the plaint and the correct name of the Petitioner is Facebook India Online Services Private Limited and not Facebook. It was contended that the petitioner had been incorporated to carry out business in India and abroad, inter alia, online support services, software development, providing technical support and services it was stated that the plaint contained allegations with respect to content allegedly available on the website www.facebook.com and that the petitioner does not control or operate the servers that host the website available at facebook.com which are located in the US. It was stated that facebook.com is not being operated by the petitioner and hence it had been incorrectly joined as a defendant in the suit and its name ought to be deleted from the array of the parties. The Respondent No.1 however contended that Facebook India not only provides technical support for running the website but it is also a revenue collector for facebook.com and thus, is crucial for running of the website, thus, a necessary party.

When the Court specifically asked that can the same be shown to the court in any manner, the counsel could not prima facie convince the court that no such relationship existed between Facebook India and Facebook Inc. Therefore, at this stage, it cannot be said that Facebook India has no say in running of website and there might be a probability that Facebook India provides technical support and programming and developing of the website and also tests the new software for the same and this, can have some say in how this website runs in India. It also might be possible that the defendant no.1 is raising revenue for the facebook.com by seeking advertisers from India for facebook.com. Thus I find that on the grounds as alleged in the application and argued by the learned counsel for the defendant no.1, defendant no.1 cannot be deleted at this stage. The application is accordingly dismissed."

11. Petitioner being aggrieved by the impugned order filed the present petition contending that :

(i) Respondent No.1 has failed to raise any allegations against the petitioner or showing any nexus whatsoever with the alleged objectionable content in the suit.

(ii) The impugned order overlooks the written statement filed by Facebook Inc. wherein it (and not Petitioner) is admitted to have control over the content available on www.facebook.com.

(iii) Learned Trial Court has erred in shifting the burden onto Petitioner to prove that it does not have any control over the content available on www.facebook.com , instead of requiring Respondent No.1 to bring out a case against Petitioner and establish that Petitioner hosts and controls the content available on www.facebook.com . It is in fact contended that respondent no.1 has failed to meet his burden of proof.