Delhi High Court
Murari Sharma vs Shweta Tiwari on 9 October, 2017
$~4.
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ FAO(OS) No. 256/2016
Date of decision: 9th October, 2017
MURARI SHARMA ..... Appellant
Through Mr. Chander Shekhar Patney,
Advocate.
versus
SHWETA TIWARI ..... Respondent
Through Mr. Sudhanshu Sikka, Advocate.
CORAM:
HON'BLE MR. JUSTICE SANJIV KHANNA
HON'BLE MR. JUSTICE NAVIN CHAWLA
SANJIV KHANNA, J. (ORAL):
This intra Court appeal under Section 10 of the Delhi High
Court Act, 1966 read with Order XLIII Rule 1 and Section 104 of the
Code of Civil Procedure, 1908 (Code, for short) impugns the order
dated 19th July, 2016 passed by the single Judge dismissing the
Chamber Appeal against the orders closing the right of the appellant
Murari Sharma, defendant No. 13 in CS(OS) No. 109/2014, Shweta
Tiwari versus The Editor-in-Chief, Amar Ujala and Company to file
his written statement.
2. We have heard learned counsel for the parties and with their
consent have taken up the appeal for hearing and disposal.
FAO(OS) No. 256/2016 Page 1 of 5
3. Shweta Tiwari, the first respondent before us, has filed the
aforesaid suit for permanent injunction, rendition of accounts and
damages of Rs.1 crore. The allegation is that the appellant herein had
used the respondent's photograph in the advertisements of their
products "kesh pari" hair oil without her consent, approval and
knowledge. It is alleged by the respondent that she is a well-
recognised and a well-known personality and the illegal use of her
photograph by the appellant has caused irreparable damage to her
celebrity status and also caused emotional distress and financial loss.
The respondent claims that she is brand ambassadors of number of
reputed hair care multinational products.
4. Notice in the aforesaid suit was issued and served upon the
appellant on 20th February, 2014. The appellant had entered
appearance on 15th April, 2014, the first date after service of notice,
and was granted time to file written statement. It is the contention of
the appellant that his advocate unfortunately fell sick and had to go to
Haridwar for treatment and had remained there for five months. On
the next date of hearing, i.e., 24th November, 2014, request was made
before the Joint Registrar to extend time for filing of written
statement. The Joint Registrar, however, declined the said request and
closed the right of the appellant to file written statement vide order
dated 24th November, 2014.
5. It appears that despite the said order, the appellant filed the
written statement on 7th January, 2015 enclosing therewith copy of an
open agreement purportedly signed by the respondent. The appellant
FAO(OS) No. 256/2016 Page 2 of 5
had also relied upon demand draft of Rs.22,500/- issued by the
Oriental Bank of Commerce in favour of the respondent stated to have
been issued at the request of the appellant.
6. The Joint Registrar vide order dated 7th January, 2015 directed
that the written statement be taken off the record as it was filed
beyond limitation and after the order dated 24th November, 2014.
7. The appellant thereupon filed an application, IA No. 3175/2015,
under Section 151 of the Code read with Section 5 of the Limitation
Act, 1963 seeking extension of time in filing of written statement.
This application was dismissed by the Joint Registrar vide order dated
13th February, 2015 observing that the application was not
maintainable in view of specific provision of Order VIII Rule 1 of the
Code.
8. Thereupon, the appellant had filed Chamber Appeal OA No.
83/2015, under Rule 2 (C) of Chapter IV of the Delhi High Court
(Original Side) Rules, 1967 for setting aside of orders dated 24th
November, 2014, 7th January, 2015 and 13th February, 2015.
9. The impugned order dismisses the said Chamber Appeal
recording that there was delay in filing the written statement and the
maximum period of ninety days reckoned from 20 th February, 2014
had expired on 20th May, 2014. The order also records that even if the
previous counsel for the appellant had fallen sick and had remained in
Haridwar for a period of five months, the period had come to an end in
September, 2014, whereas the written statement was filed by the
FAO(OS) No. 256/2016 Page 3 of 5
appellant on 7th January, 2015. The appellant had not been able to
explain the steps taken between October, 2014 till January, 2015.
10. Learned counsel for the appellant submits that the appellant had
engaged an advocate who had been instructed to draft and file the
written statement and relevant papers were also given to the said
advocate. Unfortunately, the advocate fell sick and had moved to
Haridwar for medical treatment. In this process, there was delay in
filing of the written statement. The appellant being a layman did not
understand the nuances and technicalities of law. He had relied upon
the legal advice given to him. It is also the submission of the
appellant that they are ready and willing to pay exemplary costs to the
respondent for the delay caused. Counsel for the appellant relies upon
the Open Agreement as well as the demand draft. It is submitted that
the consequences the appellant may suffer in case decree of damages
of Rs.1 crore is passed would be substantial. It is pointed out that the
appellant has stopped manufacturing the hair oil "kesh pari" and the
appellant has also agreed that he would not use the photograph of the
respondent in any manner.
11. Counsel for the respondent, however, submits that the
respondent has suffered irreparable loss of reputation and also
financial loss caused on her photograph being used by the appellant.
He, however, states that he has not obtained instructions on the Open
Agreement or the demand draft and is unable to state anything in this
regard.
FAO(OS) No. 256/2016 Page 4 of 5
12. Keeping in view the aforesaid factors, we would accept the
present appeal and permit the written statement filed by the appellant
to be taken on record, subject to payment of costs of Rs.75,000/- to the
respondent. Counsel for the appellant agrees to pay the said costs.
We also take on record the statement made by the counsel for the
appellant that he would not be using the photograph of the respondent
in relation to any of the products manufactured by them. The only
primary issue which, therefore, survives for consideration is the
question of damages. The appeal is allowed in the aforesaid terms.
The costs would be paid within a period of four weeks from today.
SANJIV KHANNA, J.
NAVIN CHAWLA, J.
OCTOBER 09, 2017 VKR FAO(OS) No. 256/2016 Page 5 of 5