Peepee Publisher & Distributors ... vs Dr. Neena Khanna & Anr.
2009 Latest Caselaw 1941 Del

*          HIGH COURT OF DELHI : NEW DELHI

+          IA No.4401/2008 in CS (OS) No.2157/2007

%                      Judgment reserved on :       16th April, 2009

                       Judgment pronounced on : 8th May, 2009

PEEPEE Publisher & Distributors (P) Ltd.           ...Plaintiff
                   Through : Mr. Jagdish Sagar, Adv. with Mr. Aalok
                              Jain, Adv.
                   Versus
Dr. Neena Khanna & Anr.                            .... Defendants
                   Through : Mr. Rajiv Nayar, Sr. Adv. with Ms. Jyoti
                              Taneja and Mr. Shine Joy and Ms.
                              Urvashi Basale, Advs.

Coram:

HON'BLE MR. JUSTICE MANMOHAN SINGH

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

2. To be referred to Reporter or not?                                  Yes

3. Whether the judgment should be reported
   in the Digest?                                                      Yes

MANMOHAN SINGH, J.

1. The plaintiff filed the suit for permanent injunction against

infringement of copyright, breach of contract, defamation, damages and

delivery up etc. against the defendants for restraining him or any of its

agents etc. to interfere with the plaintiff‟s copyright in the book titled as

"Synopsis of Dermatology and Sexually Transmitted Diseases"

(hereinafter referred to as "Dermatology").

2. In the plaint, the plaintiff submits that the defendant No.1 is

Professor of Dermatology and Venereology at the All India Institute of

Medical Sciences, New Delhi-1100 29. She is the author of the book

Dermatology, which has been published by the Plaintiff in 2005 and

reprinted in 2006 and in 2007. A copy of the third reprint is filed in

the present proceedings. For the purpose of publishing this book, the

plaintiff entered into a copyright assignment and publishing agreement

with Defendant No.1 in 2003, which was subsequently modified and

superseded by another agreement dated 1st September, 2005.

3. In view of the agreement entered between the plaintiff and

defendant No.1, it is alleged that plaintiff has complete assignment of

copyright in respect of rights related to publishing book format.

4. In the present application IA No.4401/2008 under Order VI

Rule 17 filed by the plaintiff, amendment is sought to the effect that

defendant No.1 is (except as mentioned hereinbelow) the author of the

book titled "Dermatology". It is averred by the plaintiff that the

defendant intended to bring out an infringing second edition of the

book titled „Dermatology‟ in which the plaintiff owns copyright

incorporating certain pictures and drawings made by the plaintiff.

5. The suit was filed on 29th October, 2007 and summons were

issued on 30th October, 2007. The defendant filed the written statement

along with a copy of the book which was allegedly put in the market

before filing of the written statement. The matter was thereafter fixed for

14th November, 2007.

6. It is submitted by the plaintiff that while the book

Dermatology, which was first published by the Plaintiff, was under

preparation in late 2004, the plaintiff had supplied to the defendant

No.1 a number of line drawings which were utilized in the book by

defendant No.1. It is further submitted that the said drawings were

prepared on the plaintiff‟s computer by his employee Mr. Avdhesh

Kumar Maurya, and the plaintiff is, therefore, the first owner of

copyright under Section 17(c) of the Copyright Act. The plaintiff did

not mention this fact in the original plaint because he thought that the

same would not be reutilized in the new edition of the book and the

defendant No.1 was expected to make some changes in the illustrations

of the book (as in fact she subsequently did).

7. The Plaintiff examined the said book in detail only when

the written statement was filed by the defendants alongwith the copy of

the book. At this point, he noticed that the Defendant no. 1 retained

and reused the illustrations which had been supplied by the plaintiff and

of which the plaintiff was owner of copyright under Section 17 (c) of

the Copyright Act.

8. The plaintiff therefore pleaded that he could not have known

the abovesaid fact till the time when the plaint was originally filed. The

book was to be put in the market in 2008 and not available when the

plaint was filed i.e. in October, 2007. The plaintiff also filed an

application being IA No.309/2008 to bring on record certain additional

documents necessitated by the untrue averments of the defendants in

their written statement wherein this court vide order dated 9 th January,

2008 directed that the plaintiff shall make an appropriate application for

amendment of the plaint and if he takes additional pleas by amendment

of the plaint he may also rely on additional documents.

9. The defendants submits that they had announced publication

on the subject work on 1st October, 2007 and distributed their work on

8th October, 2007 after which the plaintiff has instituted the present suit.

The alleged fact of copying the pictures must, therefore, be in the

knowledge of the plaintiff at the time of institution of the suit. It is

denied that the defendants took out second edition of their book in

market somewhere around 6th November, 2007.

10. The defendants are relying upon the statement made by the

plaintiff in the plaint in para 2 wherein an admission has been made

to the effect that the defendant No.1 is the author of the book and hence

the alleged amendment cannot be allowed in view of the admission

made by the plaintiffs in the plaint. They have also alleged that

irretrievable prejudice would be caused to the defendants if amendment

which is itself contradictory and is mutually disruptive of admitted

pleas is allowed.

11. It is denied that the defendants filed any copy of the

defendants publication alongwith their written statement on 29 th

November, 2007.

12. Another plea of the learned counsel for the defendants is that

the plaintiff by virtue of the amendment application is attempting to

alter the cause of action as originally pleaded in the plaint. It is

submitted that the plaintiff in the original plaint has limited its cause

of action to breach of contract and consequent infringement of

copyright. By virtue of amendment, the plaintiff is claiming to be the

owner of copyright in the material in the subject work of the second

edition of the defendant‟s book.

13. I do not agree with the contention of the defendants that the

amendment sought by the plaintiff will change the cause of action or it

is not necessary in the facts and circumstances of the reasons given in

the pleading.

14. The amendment sought by the plaintiff is on the specific

grounds that the book of defendant No.2 was not in the market before 6th

November, 2007 and definitely before filing of the suit. It can not be

disputed by the defendants that a copy of the publication of the book

was attached by the defendants with the written statement only. The

claim of the plaintiff cannot be rejected when the statement is made by

the plaintiff that on inspection of this publication, he came to know

that the defendant No.1 has infringed the plaintiff‟s copyright by

including in the infringing second addition of Dermatology, the

drawings which the plaintiff had permitted to use for the first edition.

15. It has also been alleged that the drawings used in the second

edition are exactly on the same lines as were used in the first edition. In

my view, the plaintiff in the plaint impliedly alleged copyright in the

pictures and drawings utilized in the book titled as „Dermatology‟.

16. The defendants have brought out the second addition of the

book undisputedly after the suit was filed by the plaintiff. From the

documents produced by the defendants alongwith the written statement,

it is apparent that book was intended to be published in 2008 but came

out in 2007. The plaintiff could not have been aware of the infringing

act of the defendant at the time of filing of the suit. The allegation of

the plaintiff that the defendant has infringed the copyright of the

plaintiff to the number of drawings and illustrations by reproducing the

exact replica of the drawings of the first edition is the matter of trial and

therefore, in my view the amendment sought by the plaintiff should be

allowed in order to decide the real controversy and dispute between the

parties. Further, by allowing the present application, this court is not

deciding the rival submission of the parties on merit. These have to

tested in the light of evidence produced by the parties, hence the

amendment cannot be refused as sought for.

17. In the case of Savitri Minda vs. Minda Industries, 1997

PTC 257, this Court allowed the amendment of the plaint under Order

VI Rule 17 observing that the courts should be liberal in the matter of

allowing amendment unless serious injustice or irreparable loss is

caused to the other side. The Courts exist to decide the rights of the

parties and not to punish them for the mistake they make in the conduct

of their cases.

18. In the case of Shri Saif-ul-Islam Co. L.P. v. Roshan Lal

Arora, 2003 AIHC 2966 (2968) (Del), it was held that where pleadings

are defective, amendment would be allowed. It is also settled law that

amendments to plead material facts left by oversight and which does

not cause prejudice to other side would be allowed.

19. It is settled law that courts cannot go into the truth or falsity

or maintainability of the case in amendment. There is a necessity for

amendment in the present case arising out of the circumstances

happening after filing of the plaint. I consider that for complete and

effective adjudication of the dispute between the parties, amendment is

to be allowed. No prejudice/injustice would be caused to the

defendants in case the present application for amendment is allowed.

20. The application is allowed. The amended plaint is taken on

record. Consequently, additional documents filed with the amended

plaint are also allowed and be taken on record.

CS (OS) No.2157/2007

List the matter before Court on 6th July, 2009.

MANMOHAN SINGH, J MAY 08, 2009 sa