* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Judgment: 01.3.2012
+ CRP No.211/2007
SWAMI ASANGANANDA BHARTI ..... Petitioner
Through: Ms.Panchajanya Batra Singh,
Advocate.
versus
HIMALAYAN INTERNATIONAL INSTITUTE OF YOGA
SCIENCE & PHILOSOPHY, KANPUR ..... Respondent
Through: Mr.Sanjeev Aggarwal, Advocate.
CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR
INDERMEET KAUR, J. (Oral)
1. Order impugned is the order dated 01.10.2007. Vide this order the application filed by the defendant under Order 7 Rule 11 of the Code of Civil Procedure (hereinafter referred to the as the Code) had been dismissed.
2. Record shows that the present suit has been filed by the plaintiff i.e. Himalayan International Institute of Yoga Science and Philosophy CRP No.211/2007 Page 1 of 6 through its vice-president Roshan Lal for injunction, damages and infringement of copy right. Plaintiff is stated to be a society having its registered office at Kanpur. Plaintiff had started publication of a periodical magazine by the name of „Inner light". Copy right and the publishing right of the said magazine remained the sole rights of H.H. Late Swami Ram which was his literary work. After his demise the powers of the society vested with the executive committee as per bye laws of the society. Defendant was never a member of the executive committee or an employee of the plaintiff society; he has no designation or locus standi in the plaintiff society. After the demise of H.H. Late Swami Ram defendant projected himself as the founder director of the plaintiff society and to obtain undue benefits and unduly makes profits using the name of the plaintiff society, he started the publication of the magazine "Inner light" although he was fully aware that the copy right and proprietorship of this magazine was assigned by the author and founder president H.H. Late Swami Ram in favour of the plaintiff society. This came to the notice of the plaintiff society in the year 2003 when some of the officers came across one of such edition published by the defendant in the name of the plaintiff society. Defendant has CRP No.211/2007 Page 2 of 6 committed infringement of copy right of the plaintiff. An earlier suit for injunction and declaration with regard to non-association of the defendant with the plaintiff society had been filed wherein the defendant had made a statement that he has no affiliation or concern with the plaintiff society. This was on 07.5.2004 and 05.6.2004 in OS No.72/2004 in the proceedings pending in the court of Shri Gautam Manan, Civil Judge, Tis Hazari, Delhi; suit was disposed of but the defendant continued to use the name of the plaintiff society. The defendant is trying to obtain undue benefit by the publication of this magazine copy right of which vests solely with the plaintiff society. Accordingly the present suit had been filed seeking a permanent injunction restraining the defendant from infringement of the copy right of the magazine "Inner light". Rs.1,00,000/- had been claimed as damages as also the recovery of illegal profit which the defendant has earned from the infringement of the copy right of the plaintiff.
3. An application under Order VII Rule 11 of the Code was filed by the defendant seeking rejection of the plaint; his contention was that the plaint discloses no cause of action against the defendant; it does not substantiate the existence of any copy right in favour of the plaintiff; CRP No.211/2007 Page 3 of 6 contention being that they can never be a copy right in a magazine. Attention has been drawn to the definition of "infringing copy" as contained in Section 2(m) of the Copyright Act, 1957 as also Section 14; submission being reiterated that in the absence of material particulars having been disclosed in the plaint, the trial would be a useless exercise. Plaint is liable to be rejected. Reliance has been placed upon a judgment reported in AIR Karnataka 406 Associated Electronic & Electrical Industries (Banglore) Pvt.Ltd. Vs. M/s Sharp Tools to support this submission; contention being that in order to be an actionable claim the copy of which the infringement has been alleged must be substantial and a material one which at once leads to the conclusion that the defendant is guilty of an act of piracy.
4. Further submission is that this case is a personal vendetta of the plaintiff against the defendant.
5. It is a settled position at law that while dealing with an application under Order VII Rule 11 of the Code it is only the averments made in the plaint which have to be looked into. The defence projected as sought to be set up by the defendant cannot be looked into for the purpose of dealing with an application under the aforenoted noted CRP No.211/2007 Page 4 of 6 statutory provisions.
6. The present suit has been filed by the Roshan Lal stating himself to be duly authorized by the society as per its bye laws to file the suit. The plaintiff has described itself as the Himalayan International Institute of Yoga Science and Philosophy. Record shows that the defendant was earlier a manager of the institution but he was thereafter removed by the founder president himself i.e. H.H. Late Swami Ram. It is also an admitted position that the plaintiff society is registered as per the rules of registration. Contention of the plaintiff is that the defendant is using the name of the plaintiff society deceptively in similar manner and publishing the magazine "Inner light" whose copy right had been assigned to the plaintiff by H.H. Late Swami Ram. Averments made in the plaint clearly discloses a cause of action against the defendant; submission of the defendant that the plaint is liable to be rejected as no cause of action has been disclosed is an argument bereft of merit. The averments made in the application which was the subject matter of the impugned order are defenses sought to be raised by the defendant; the same cannot be gone into while dealing with an application under Order VII Rule 11 of the Code; they are all matters which require trial. Petition CRP No.211/2007 Page 5 of 6 is wholly without any merit. Dismissed.
INDERMEET KAUR, J MARCH 01, 2012 nandan CRP No.211/2007 Page 6 of 6