2000(2) ALL MR 530
IN THE HIGH COURT OF JUDICATURE AT BOMBAY (PANAJI BENCH)
R.M.S. KHANDEPARKAR, J.
Srushti Vision & Ors., Vs. Shri Ulhas Buyao
Civil Rev. Appln., No. 126 of 1999
1st October, 1999
Petitioner Counsel: Shri. M. S. USGAONKAR Sr. Advocate with Shri. S. M. USGAONKAR
Respondent Counsel: Shri. S. V. KUDCHADKAR with Shri. P. A. KAMAT
Civil P.C. (1908), O.7, R.11 - Copy Right Act (1957) - Rejection of plaint - Non-disclosure of cause of action - Ground of - Suit claiming ownership of a musical composition of a song - Plea that in view of provisions of Copyright Act there was no cause of action for Plaintiff to file suit - Plea irrelevant - Cannot be considered - Material question is whether plaint itself discloses any cause of action or not.
The plea that there is no cause of action is different from the plea that the plaint itself does not disclose any cause of action. Absence of cause of action in a suit is not the same thing as non-disclosure of cause of action in the plaint. The correctness or otherwise of the plea in the plaint constituting the cause of action is beyond the scope of the decision for the purpose of applicability of the provisions of Order VII Rule 11 of the Civil Procedure Code.
Cases Cited:
Indian Performing Right Society Ltd. Vs. Eastern India Motion Picture Association & Ors., AIR 1977 SC 1443 [Para 2]
Burroughs Wellcome (India) Ltd. Vs. Uni-Sole Pvt. Ltd. and Anr., 1998(1) ALL MR 290 [Para 2]
Smt. Mannu Bhandari Vs. Kala Vikas Pictures Pvt. Ltd. & Anr., AIR 1987 Delhi 13 [Para 2]
K. A. Venugopala Setty Vs. Dr. Suryakantha U. Kamath, AIR 1992 Kar. 1 [Para 2]
A. Susiah Vs. S. Muniswamy, AIR 1966 Madras 175 [Para 2]
T. Arivandandam Vs. T. V. Satyapal and Anr, (1977) 4 SCC 467 [Para 2]
JUDGMENT
JUDGMENT :- This revision application arises from the order dated 17th February, 1999 passed by the District Judge at Margaon in Civil Suit No. 1/96. By the impugned order, the Trial Court has dismissed the application dated 29-3-1997 filed by the petitioners herein for rejection of the plaint in the said Civil Suit No. 1/1996. The application was filed under Order VII Rule 11 of the Civil Procedure Code complaining that the plaint did not disclose any cause of action.
2. The petitioners as well as the respondent have filed written submissions, in addition to the oral submissions made by the learned Advocates for the parties. In support of their submissions, they have relied upon the decisions in the matter of Indian Performing Right Society Ltd. Vs. Eastern India Motion Picture Association and Ors., reported in AIR 1977 Supreme Court 1443, Burroughs Wellcome (India) Ltd. Vs. Uni-Sole Pvt. Ltd., and anr. reported in 1998 (1) ALL M.R. 290, Smt. Mannu Bhandari Vs. Kala Vikas Pictures Pvt. Ltd. and anr. reported in AIR 1987 Delhi 13, K. A. Venugopala Setty Vs. Dr. Suryakantha U. Kamath reported in AIR 1992 Karnataka 1, A. Susiah Vs. S. Muniswamy reported in AIR 1966 Madras 175 and T. Arivandandam Vs. T. V. Satyapal and anr. reported in (1977) 4 Supreme Court Cases 467.
3. Upon hearing the learned Advocates and on perusal of records, including the written submissions, it is clear that the only ground on which the relief for rejecting the plaint under Order VII Rule 11 of the Code of Civil Procedure was sought for was non-disclosure of cause of action in the plaint.
4. It was the case of the petitioners that as per the pleadings in the plaint, the claim of the respondent/petitioners was that the song 'Chandnyache Rati' was musically composed and tuned by the respondent and therefore he had become the owner of the Musical composition of the said song. On account of the alleged infringement of copyright, the suit has been filed. On the other hand, it is the case of the petitioners that considering the provisions of law in Copyright Act 1957, there was no cause of action in favour of the respondent to file the suit and the same is evident from the pleadings in the plaint.
5. The plea that there is no cause of action is different from the plea that the plaint itself does not disclose any cause of action. Absence of cause of action in a suit is not the same thing as non-disclosure of cause of action in the plaint. The correctness or otherwise of the plea in the plaint constituting the cause of action is beyond the scope of the decision for the purpose of applicability of the provisions of Order VII Rule 11 of the Civil Procedure Code.
6. Besides, as per the submissions on the part of the petitioners themselves, originally the suit was in relation to infringement of Copyright of the song 'Chandnyache Rati' as musically composed and tuned by the respondent whereas during the pendency of this revision, and after passing of the impugned order, the plaint has been amended by the respondent. The amendment introduced in the plaint reads thus :
"....... thus became owner and author of the copyright of the musical composition and tune of the poem CHANDNEACHE RATI and GOENCHE MHOJEA GOENKARANO and therefore musical composition and tune of the plaintiff is protected under the Copyright Act which is still continued and therefore no other person can infringe the Copyright of the plaintiff and therefore plaintiff became exclusive owner of the copyright work. The copyright work of the plaintiff still subsists."
7. Undisputedly, pursuant to the said amendment to the plaint, the claim of the respondent may be justified to certain extent. Indeed the written submissions in that regard by the petitioners read thus :-
"Indeed the claim of the plaintiff may be justified to the extent he claims to have done musical composition of the song and given tune to the song.
The question is whether as per the provisions of the Act, once record is made to what extent the rights of the musical composer are protected and he can restrain the release of the record of fresh record and for that matter fresh audio cassette, even if it is with the same musical composition as contended by the plaintiff."
8. The learned Advocate for the petitioners has relied upon the decision of the Apex Court in Indian Performing Right Society Ltd. Vs. Eastern India Motion Picture Association and ors. (Supra). Moreover the decision therein can be of no help to decide the issue pertaining to non-disclosure of the cause of action. The primary requirement for invoking the provisions of Order VII Rule 11 of the Civil Procedure Code is the non-disclosure of cause of action in the plaint. The said decision is undoubtedly on merits in relation to the issue as to whether in view of the provisions of Copyright Act 1957 the existing lyrics is capable of assignment and whether right can be defeated by the same by engaging some person. Being so, the said decision is of no assistance at the stage of Order VII Rule 11 of the Civil Procedure Code. As regards the other decisions relied upon by the learned Advocates they are clearly distinguishable on facts and therefore are of no assistance in the matter.
9. The Trial Court in its discretion, which has been judiciously exercised rejected the contention of the petitioners that the plaint does not disclose the cause of action. It cannot be said that the Trial Court has acted arbitrarily or in improper exercise of its jurisdiction while rejecting the contentions of the petitioners as regards the non-disclosure of cause of action in the plaint.
10. In the result, therefore, no case is made out for interference in the impugned order. The revision application therefore fails and is hereby summarily rejected.