M/S. Chhaya Industries vs M/S. Lucknow Sansthan
2009 Latest Caselaw 2748 Del

*               IN THE HIGH COURT OF DELHI AT NEW DELHI



+                        RFA NO. 13 OF 2009



%                                    Date of Decision: 21st July, 2009


#      M/S CHHAYA INDUSTRIES                                   ...Appellant
!                        Through: Mr. A.K. Goel with Mr. Ranjeev Kumar,
                                  Advocates.

                                   Versus


$      M/S LUCKNOW SANSTHAN                               ...Respondents
^                       Through: Mr. Ajay Sahni and Mr. Devanshu Jain,
                                 Advocates.


       CORAM:
*      HON'BLE MR. JUSTICE P.K.BHASIN

1. Whether Reporters of local papers may be allowed to see
   the Judgment?
2. To be referred to the Reporter or not?
3. Whether the judgment should be reported in the digest?

                             JUDGMENT

P.K.BHASIN, J(ORAL)

Admit.

With the consent of the counsel for the parties this appeal is taken up for

final disposal today itself as the point involved is stated to be short.

2. The appellant had filed an application under Section 50 of the Copyright

Act, 1957 before the Copyright Board for rectification of the Copyright Register by

expunging therefrom entry No. 60580/2002 which was made in respect of label

„ULTRA GUIDE‟ at the instance of respondent No.1 herein. The appellant claimed

that the said label was slavish imitation of its label „CHHAYA‟ which it adopted for

detergent washing powder which it was manufacturing since long. That

rectification application was resisted by the respondent herein. The parties after

completion of pleadings adduced evidence in support their respective stands

before the Copyright Board. During the course of final hearing before the

Copyright Board an argument was advanced by the counsel for the respondent

herein that there was non-compliance of the provisions of Order XXX pf the Code

of Civil Procedure inasmuch as the applicant there which was a partnership firm

had not disclosed the names of all its partners. The Copyright Board accepted

that argument and vide order dated 25th September, 2008 dismissed the

application of the appellant herein as being not maintainable without going into

the respective contentions of the parties on merits. Feeling aggrieved by that

order of dismissal of its application, this appeal was filed under Section 72(2) of

the Copyright Act by the appellant.

3. Learned counsel for the respondent has not opposed this appeal and has

submitted that since there was no demand made by the respondent herein before

the Copyright Board for disclosure by the petitioner there(appellant herein) of the

names of all its partners there was no non-compliance of the provisions of Order

XXX Rule 2 CPC. He has also conceded even if any such demand had been made

and not complied with by the appellant herein the only consequence could be stay

of the proceedings before the Copyright Board. This is also the argument

advanced by the learned counsel for the appellant.

4. I am also of the view that the appellant‟s petition for rectification could

not be dismissed for the reasons given by the Copyright Board. Order XXX rule 2

CPC, which has been invoked by the learned members of the Copyright Board

while dismissing the rectification petition of the appellant herein reads as under:

"Disclosure of partners‟ names-(1) Where a suit is instituted by partners in the name of their firm, the plaintiffs or their pleader shall, on demand in writing by or on behalf of any defendants, forthwith declare in writing the names and places of residence of all the persons constituting the firm on

whose behalf the sut is instituted.

(2) Where the plaintiffs or their pleader fail to comply with any demand made under sub-rule (1), all proceedings in the suit may, upon an application for that purpose, be stated upon such terms as the Court may direct.

(3) Where the names of the partners are declared in the manner referred to in sub-rule (1), the suit shall proceed in the same manner, and the same consequences in all respects shall follow, as if they had been named as plaintiffs in the plaint."

5. Now, in the present case admittedly there was no demand made by the

respondent before the Copyright Board to call upon the petitioner to furnish the

names of its partners and unless that demand had been made the petitioner was

not required to make any such disclosure. Therefore, the impugned order of the

Copyright Board cannot be sustained and is liable to be set aside. In view of this

conclusion, I need not go into the question whether provisions of Order XXX CPC

apply at all to the proceedings before the Copyright Board whenever a partnership

firm approaches it under the Copyright Act, as was also the argument advanced

by learned counsel for the appellant.

6. This appeal is accordingly allowed. The order dated 21st September, 2008

of the Copyright Board is set aside and the matter is remanded back with a

direction to the Copyright Board to decide the appellant‟s petition in accordance

with law on merits. It is, however, clarified that the respondent would be at liberty

to make a prayer before the Copyright Board to accept its additional affidavit by

way of evidence which according to the appellant was filed on record after

completion of the proceedings without any notice to it and if any such request is

made the Board shall deal with the same in accordance with law.

JULY 21, 2009                                                              P.K. BHASIN,J
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