The Indian Performing Right ... vs Anil Mehra & Anr.
2009 Latest Caselaw 5170 Del

*           IN THE HIGH COURT OF DELHI AT NEW DELHI


                                                 Date of Reserve: 23rd November, 2009
                                                   Date of Order: 14th December , 2009

+ IA No. 8739/2006 in CS(OS) No. 632/2006
%                                                                         14.12.2009

       The Indian Performing Right Society Ltd.                           ...Plaintiff
                               Through: Mr.Mohit Lahoty

                versus

       Anil Mehra & Anr.                                            ... Defendants
                                          Through: Mr. Rajiv Nayar, Sr.Advocate with
                                          Mr. Ashish Verma, Advocate



       JUSTICE SHIV NARAYAN DHINGRA

1.     Whether reporters of local papers may be allowed to see the judgment?

2.     To be referred to the reporter or not?

3.     Whether judgment should be reported in Digest?


       ORDER

By this order I shall dispose of an application under Section 10 CPC

made by the defendant for staying the present suit since the subject matter of the

present suit was substantially the same as the subject matter of a suit pending

before Calcutta High Court filed by the defendant before filing of the present suit

by the plaintiff. The suit in Calcutta High Court being Civil Suit No. 90/2006 was

filed on 10th April, 2006 by the defendant wherein the plaintiff in present suit was

arrayed as defendant no.2. The present suit was filed on 15 th April, 2006 i.e.

after the suit filed by the defendant in the Calcutta High Court. It is undisputed

that parties in the suit are same. The present defendant in the suit before

IA No. 8739/2006 in CS(OS) No. 632/2006 Page 1 Of 4 Calcutta High Court had inter alia sought a declaration that plaintiff herein have

no copyright in respect of any of the sound recordings being used by the

defendant and hence have no right to issue license or claim payment in relation

to the sound recordings being broadcasted by the defendants. The defendant

also moved an application for interim injunction before the Calcutta High Court

which was dismissed by a single Bench of the Calcutta High Court against which

an appeal was preferred before the Division Bench. The Division Bench allowed

the appeal of the defendant and passed an interim injunction restraining the

present plaintiff from taking any action against the present defendant subject to

the defendant making a payment of Rs.600 per niddle hour to the present

plaintiff. The Division Bench while allowing the interim injunction of the defendant

allowed a stay application of the defendant injuncting plaintiff from initiating any

proceedings against the defendant vide its order dated 26.9.2008.

2. The Counsel for the plaintiff submits that the scope of present suit

was larger than the scope of the suit at Calcutta and in the present suit the

plaintiff has assailed infringement of its copyright and had sought injunction

against the defendant and damages from the defendant.

3. I consider that merely because plaintiff has made an additional

prayer of damages that would not change the scope of the suit. It is settled law

that a matter in issue does not mean that the entire subject matter of the earlier

suit has to be the subject matter of the latter suit. It is sufficient if the decision in

the earlier suit operates as res judicata between the parties in respect of the latter

suit. In case the Calcutta High Court gives a decision that the plaintiff was not

liable to charge any license fee and no copyright existed in favour of the plaintiff

in respect of the sound tracks being used by defendant and defendant had liberty

IA No. 8739/2006 in CS(OS) No. 632/2006 Page 2 Of 4 to play the sound tracks without license fee, the decision of Calcutta High Court

would operate res judicata in this case and the plaintiff would not be even entitled

to recover any damages. However, if the decision goes against the defendant

the plaintiff would have right to charge license fee from the defendant and the

present suit if stayed under Section 10, can be got revived for that purpose. This

Court in Chowdhury & Gulzar Singh v. Frick India Ltd. AIR 1979 Delhi 118 while

dealing with the proposition under Section 10 CPC had observed as under:

"12. The learned Counsel for the plaintiffs contended that the matter in issue in the present suit and the previous suit is not the same and, therefore, Section 10, Code of Civil Procedure, is not applicable. He contends that the words "matter in issue" used in Section 10 mean, entire subject matter of the subsequent suit and the previous suit must be the same. He further contends that in the previous suit the subject matter was recovery of Rupees 1,10,000/- while in the present suit the subject matter is recovery of Rs.18 lac. I do not agree with this view of the learned Counsel for the plaintiffs. In my opinion, the words "matter in issue" in Section 10 of the Code of Civil Procedure mean all disputed material questions in the subsequent suit which are directly and substantially in question in the previous suit. It can never be expected that a plaintiff would file a case against the same defendant for the same amount and claiming the same relief. In suits for recovery of rents a landlord can never file two suits claiming rent of the same period and claiming the same amount of rent. In my view, words "matter in issue" do not mean entire subject matter in issue in the two suits. If the interpretation as put by the learned Counsel for the plaintiffs is accepted, it appears to me that Section 10 of the Code of Civil Procedure would become redundant and there would be lot of litigation before the Courts trying the same set of facts again and again. Applying the test of principle of res judicata for the stay of suit, I am of the view that the decision on various points in question in the previous litigation between the parties pending at the stage of appeal, would operate as res judicata in the present suit, and the suit can be disposed of in terms of the findings that may be given in appeal. If the present suit is not stayed, it would result in unnecessary trial of the suit and litigation expenses of the parties. Moreover, there may be possibility of conflicting judgments in the two proceedings."

IA No. 8739/2006 in CS(OS) No. 632/2006 Page 3 Of 4

4. I, therefore consider that the present suit filed by the plaintiff is liable

to be stayed under Section 10 CPC. The application of the defendant is allowed.

CS(OS) No. 632/2006

The suit is stayed with liberty to the parties to revive the suit after

decision of the Calcutta High Court, if necessary.

December 14, 2009                                    SHIV NARAYAN DHINGRA J.
vn




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