Delhi High Court

Shriram Bharatiya Kala Kendra vs Shubha Mudgal on 23 November, 2010

Author: V. K. Jain

        THE HIGH COURT OF DELHI AT NEW DELHI
%                   Judgment Pronounced on: 23.11.2010

+           CS(OS) No. 202/2004

SHRIRAM BHARATIYA KALA KENDRA                  .....Plaintiff

                           - versus -
SHUBHA MUDGAL                                  .....Defendant

Advocates who appeared in this case:

For the Plaintiff: Mr. Jagdish Sagar, Advocate.

For the Defendant: Mr. C.M.Lall, Advocate.

CORAM:-
HON'BLE MR JUSTICE V.K. JAIN

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

2. To be referred to the Reporter or not?                  Yes

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

V.K. JAIN, J. (ORAL)

IA 9591/2010 (for amendment of plaint)

1. This is an application for amendment of plaint.

The plaintiff wants to make amendments in paras 5, 8, 10,

11 and 22 of the plaint.

2. This is a suit for permanent injunction, rendition

of accounts and delivery up etc. The case of the plaintiff is

that the defendant No.1 who is an artist of repute and a

well-known personality in the world of music and theatre

was associated with it since the year 1993 when the plaintiff

got musical pieces composed by her for consideration, for

dance dramas titled "Parikrama", "Krishna Katha",

"Bandish", "Meera" and for the Shankar Music Festival. It

has been alleged in para 8 of the plaint that in the year

1995, the plaintiff commissioned defendant No.1 to compose

certain musical pieces for a dance drama to be produced by

the plaintiff under the title "Meera" for which she was duly

remunerated. She composed musical pieces to blend with

the appropriate sequence of the dance drama and thereafter

the plaintiff made sound recordings with the combination of

music, lyrics, choreography and the artists. The plaintiff

claimed to be the owner of the sound recordings in terms of

Section 2(uu) of Copyright Act, 1957, as amended w.e.f.

10.05.1995.

3. It is further alleged in the plaint that the plaintiff

came across audio-cassettes being sold by defendant No.2

under the title "Shubha Mudgal - Ali More Angna" and on

listening the aforesaid cassette, the plaintiff realized that

defendant No.1 had sung the same composition in the

cassette which she had prepared for the plaintiff for its

dance drama titled "Meera" in the musical work. It has also

been alleged that in her letter dated 18.07.1996 sent to one

Mr.Jawahar Wattal, defendant No.1 had stated that the

plaintiff was the owner of the musical composition titled

"Dhaaram Sarikha" which was composed by her for the

plaintiff.

4. In para 13 of the plaint, it has been alleged that as

the owner of the copyright in the sound recordings

comprising the said musical compositions, the plaintiff has

the exclusive right under Section 14 of the Act to make any

other sound recording embodying it; to sell or give on hire,

or offer for sale or hire, any copy of the sound recording

regardless of whether such copy has been sold or given on

hire on earlier occasions; and to communicate the sound

recording to the public. In para 14 of the plaint, it is alleged

that the defendants were obliged to seek a licence from the

plaintiff to reproduce any part of the musical compositions

embodied in its sound recording and to pay the necessary

royalties thereon.

5. In the prayer clause, the plaintiff has sought

injunction restraining the defendants from reproducing or

making re-recordings of the plaintiff's sound recording of

the work tilted "Meera" or any other sound recording which

defendant No.1 may have undertaken for the plaintiff, in

contravention of the provisions of Section 14(e) of the

defendants from holding out that they are authorized by the

plaintiff to reproduce, market and sell the impugned audio

cassettes and from passing off the musical compositions

contained therein under whichever title, as those of the

plaintiff.

6. Now, besides making certain averments in para 5

of the plaint with respect to goodwill of the plaintiff, it also

wants to plead that music which was composed by

defendant No.1 amounts to joint authorship by the plaintiff.

In para 10 of the plaint, the plaintiff wants to claim that it is

the owner of copyright in the sound recording, in addition to

its claim in the music. In para 11 of the plaint, the plaintiff

wants to plead that listening to the cassette, the plaintiff

realized that defendant No.1 had sung the same

composition which she had prepared for the plaintiff,

thereby passing off the same is entirely her production. The

prayer clause is also sought to be amended by claiming

contravention of the provisions of Section 14(a) in addition

to Section 14(e) which was claimed in the first amended

plaint. The plaintiff also wants to claim that the musical

composition contained in the cassettes could not be claimed

as exclusively of defendant No.1. Thus, in nutshell, the

plaintiff is now seeking also to claim joint ownership in

respect of the music which defendant No.1 had composed

and was used in the sound recordings on the ground that

the same was prepared by defendant No.1 at the instance of

the plaintiff and she was duly paid for the same though no

such claim was made by it in the original plaint. The

respect to sound recordings prepared by the plaintiff, using

the music composed by defendant No.1. No copyright in the

music was claimed by the plaintiff is also evident from his

prayer seeking injunction against the plaintiff passing off

the musical composition as that of the plaintiff. Thus, an

altogether new claim/right i.e. joint ownership in the music

is proposed to be set up by way of the proposed

amendment.

7. Section 14(a) of Copyright Act refers to copyright in

literary, dramatic or musical work, not being a computer

programme whereas Section 14(e) deals with copyright in

respect of a sound recording. It is quite clear from a perusal

of the plaint that the case set up by the plaintiff was for

respect of the musical work which was composed by

defendant No.1 and was used during the course of sound

recording. That also explains why the plaintiff referred to

Section 14(e) in the plaint without any reference to Section

14(a) of the Act. The learned counsel for the defendant is

right in saying that by way of proposed amendment, the

plaintiff is now also seeking to claim joint copyright along

with defendant No.1 in the musical work used during the

course of sound recording, which it had not claimed in the

original plaint. This is also his contention that the claim for

limitation and now if the plaintiff were to file fresh suit

claiming joint copyright in respect of the musical work, that

would also be hit by Order II Rule 2 of CPC, having not

being claimed in the present suit.

8. It is settled proposition of law that an amendment

should generally be allowed, unless it is shown that

permitting the amendment would be unjust and would

result in prejudice to the opposite party which cannot be

compensated by cost or would deprive him of a right which

has accrued to him with the lapse of time. Errors or

mistakes, if not fraudulent, should not be made a ground

for rejecting the application for amendment of plaint or

Written Statement. If there is no undue delay, no

inconsistent cause of action is introduced and no vested

interest or accrued legal right is affected and the application

for amendment is not mala fide or will not prejudice the

opposite party, the amendment should ordinarily be

allowed.

9. In Ravajeetu Builders and Developers vs.

Narayanaswamy and Sons and Ors. (2009) 10 SCC 84,

Supreme Court, after reviewing the case law on the subject,

laid down certain principles which ought to be taken into

consideration while allowing or rejecting the application for

amendment. One of the principles laid down by the court

was that as a general rule, the Court should decline

amendments if a fresh suit on the amended claims would be

barred by limitation on the date of application.

In Shiv Gopal Sah alias Shiv Gopal Sahu vs. Sita

Ram Saraugi and Ors.(2007) 14 SCC 120, Supreme Court

inter alia observed as under:-

"It is quite true that this Court in a number of decisions, has allowed by way of an amendment even the claims which were barred by time. However, for that there had to be a valid basis made out in the application and first of all there had to be bona fides on the part of the plaintiffs and a reasonable explanation for the delay. It is also true that the amendments can be introduced at any stage of the suit, however, when by that amendment an apparently time-barred claim is being introduced for the first time, there would have to be some explanation and secondly, the plaintiff would have to show his bona fides, particularly because such claims by way of an amendment would have the effect of defeating the rights created in the defendant by lapse of time. When we see the present facts, it is clear that no such attempt is made by the plaintiffs anywhere more particularly in the amendment application."

10. This suit was filed on 11.10.1996. It cannot be

disputed that if the plaintiff were to file a fresh suit claiming

joint ownership of the music composed by defendant No.1,

such a claim would be barred by limitation and would also

be hit by Order II Rule 2 of CPC on account of its not having

been claimed in the present suit. The proposed amendment,

therefore, if allowed would take away a vested right which

has accrued to the defendants on account of this relief

having become barred by limitation. In the case before this

Court, there is not an iota of explanation for seeking the

proposed amendment after 14 years of the filing of the suit

which indicates lack of bona fides on the part of the plaintiff

and since it has the effect of defeating the right which has

accrued to the defendants by lapse of time, it should not be

allowed.

11. Order VI Rule 17 of the Code of Civil Procedure

provides that no application for amendment shall be allowed

after the trial has commenced, unless the Court comes to

the conclusion that in spite of due diligence, the party could

not have raised the matter before the commencement of

trial.

12. In Vidyabai vs. Padmalatha 2009 (2) SCC 409,

referring to the proviso added to Order VI Rule 17 of CPC by

way Civil Procedure Code (Amendment) Act, 2002, Supreme

Court observed that the proviso is couched in a mandatory

form and held that the jurisdiction of the Court to allow an

application for amendment is taken away unless the

conditions precedent therefor are satisfied viz. it must come

to a conclusion that in spite of due diligence the parties

could not have raised the matter before the commencement

of the trial. The Court clearly held that no application for

amendment shall be allowed unless the Court is satisfied

that in spite of due diligence the matter could not be raised

before the commencement of trial. The Court was of the

view that the proviso puts an embargo on the exercise of

jurisdiction by the Court and unless the jurisdiction fact as

envisaged in the proviso is found to be existing, the Court

will have no jurisdiction at all to allow the amendment of

the plaint.

In Rajkumar Gurawara (Dead) through LRs. Vs.

S.K. Sarwagi and Co. Pvt. Ltd. and Anr. AIR 2008 SCC

2303, Supreme Court, referring to the aforesaid proviso to

Rule 17 of Order VI, inter alia, observed as under:-

"The said rule with proviso again substituted by Act 22 of 2002 with effect from 01.07.2002 makes it clear that after the commencement of the trial, no application for amendment shall be allowed. However, if the parties to the proceedings able to satisfy the court that in spite of due diligence could not raise the issue before the commencement of trial and the court satisfies their explanation, amendment can be allowed even after commencement of the trial. To put it clear, Order VI Rule 17 C.P.C. confers jurisdiction on the Court to allow

either party to alter or amend his pleadings at any stage of the proceedings on such terms as may be just. Such amendments seeking determination of the real question of the controversy between the parties shall be permitted to be made. Pre-trial amendments are to be allowed liberally than those which are sought to be made after the commencement of the trial. As rightly pointed out by the High Court in the former case, the opposite party is not prejudiced because he will have an opportunity of meeting the amendment sought to be made. In the latter case, namely, after the commencement of trial, particularly, after completion of the evidence, the question of prejudice to the opposite party may arise and in such event, it is incumbent on the part of the Court to satisfy the conditions prescribed in the proviso."

13. There is not a whisper in the application as to why

the amendments proposed by way of the present application

could not be incorporated either when the suit was filed or

when the plaint was first amended. The proviso to Rule 17

of Order VI of Code of Civil Procedure cannot be rendered a

dead letter by allowing amendment even after the trial has

begun, when there is not even an attempt to show why the

proposed amendment was not made before commencement

of trial. Issues in this case have already been framed on

30.10.2006. Affidavits by way of evidence have already been

filed by the plaintiff. As laid down in Kailash vs. Nanhku

(2005) 4 SCC 480, the Trial Court is deemed to commence