Delhi High Court
Star India Private Limited vs Onmobile Global Limited & Anr. on 3 December, 2012
Author: Pradeep Nandrajog
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment Reserved on: November 30, 2012
Judgment Pronounced on: December 03, 2012
+ RFA(OS) 114/2012, C.M.No.19590/2012 &
C.M.No.19768/2012 (Cross-objections)
STAR INDIA PRIVATE LIMITED ..... Appellant
Represented by: Mr.Parag Tripathi, Sr.Advocate and
Mr.Maninder Singh, Sr.Advocate instructed by
Mr.Saikrishna Rajagopal, Mr.Gopal Jain, Mr.Sidharth
Chopra, Ms.Sneha Jain, Mr.Shadan Farasat and
Mr.Krishan Mohan, Advocates.
versus
PIYUSH AGARWAL & ORS. ..... Respondents
Represented by: Mr.Sudhir Chandra, Sr.Advocate
instructed by Ms.Gayatri Roy, Mr.Hihanshu Bagai,
Mr.Thomas George and Mr.Udit Sood, Advocates for
R-1 & R-2.
Mr.C.A.Sundaram, Sr.Advocate instructed by Mr.Amit
Sibal, Ms.Radha Rangaswamy, Ms.Rohini Musa,
Ms.Akhila Kaushik and Mr.Raman Kumar, Advocates for
R-3(BCCI)
AND
RFA(OS) 115/2012
STAR INDIA PRIVATE LIMITED ..... Appellant
Represented by: Mr.Parag Tripathi, Sr.Advocate and
Mr.Maninder Singh, Sr.Advocate instructed by
Mr.Saikrishna Rajagopal, Mr.Gopal Jain, Mr.Sidharth
Chopra, Ms.Sneha Jain, Mr.Shadan Farasat and
Mr.Krishan Mohan, Advocates.
versus
RFA(OS)s No.114-116/2012 & 125-127/2012 Page 1 of 16
ONMOBILE GLOBAL LIMITED & ANR. ..... Respondents
Represented by: Mr.Sanjay Jain, Sr.Advocate instructed
by Mr.Hardeep Singh Anand, Ms.Vandana Sehgal,
Mr.Rohan Thawani, Ms.Noor Anand, Ms.Kirti Singh and
Ms.Ruchi Jain, Advocates for R-1.
Mr.Abhinav Vasisht, Sr.Advocate instructed by Mr.Amit
Sibal, Ms.Radha Rangaswamy, Ms.Rohini, Ms.Akhila
Kaushik, Mr.Prem Kumar and Mr.Raman Kumar,
Advocates for R-2.
AND
RFA(OS) 116/2012
STAR INDIA PRIVATE LIMTIED ..... Appellant
Represented by: Mr.Parag Tripathi, Sr.Advocate and
Mr.Maninder Singh, Sr.Advocate instructed by
Mr.Saikrishna Rajagopal, Mr.Gopal Jain, Mr.Sidharth
Chopra, Ms.Sneha Jain, Mr.Shadan Farasat and
Mr.Krishan Mohan, Advocates.
versus
IDEA CELLULAR LIMITED & ANR. ..... Respondents
Represented by: Mr.Rajiv Nayyar, Sr.Advocate and
Mr.N.K. Kaul, Sr.Advocate instructed by Mr.Naveen
Chawla, Ms.Sonali Jaitley, Ms.Subha Chauhan, Ms.Parul
Yadav and Ms.Nidhi Mohan Parashar, Advocates for R-1.
Ms.Radha Rangaswamy, Ms.Rohini, Ms.Akhila Kaushik,
Mr.Prem Kumar and Mr.Raman Kumar, Advocates for R-
2.
AND
RFA(OS) 125/2012
BOARD OF CONTROL FOR CRICKET
IN INDIA (BCCI) ..... Appellant
Represented by: Mr.Abhinav Vasisht, Sr.Advocate
instructed by Mr.Amit Sibal, Ms.Radha Rangaswamy,
Ms.Rohini, Ms.Akhila Kaushik and Mr.Raman Kumar,
Advocates.
RFA(OS)s No.114-116/2012 & 125-127/2012 Page 2 of 16
versus
ONMOBILE GLOBAL LTD & ANR ..... Respondents
Represented by: Mr.Sanjay Jain, Sr.Advocate instructed
by Mr.Hardeep Singh Anand, Ms.Vandana Sehgal,
Mr.Rohan Thawani, Ms.Noor Anand, Ms.Kirti Singh and
Ms.Ruchi Jain, Advocates for R-1.
Mr.Parag Tripathi, Sr.Advocate and Mr.Maninder Singh,
Sr.Advocate instructed by Mr.Saikrishna Rajagopal,
Mr.Gopal Jain, Mr.Sidharth Chopra, Ms.Sneha Jain,
Mr.Shadan Farasat and Mr.Krishan Mohan, Advocates.
for R-2.
AND
RFA(OS) 126/2012
BOARD OF CONTROL FOR CRICKET
IN INDIA (BCCI) ..... Appellant
Represented by: Mr.Amit Sibal, Ms.Radha Rangaswamy,
Ms.Rohini, Ms.Akhila Kaushik and Mr.Raman Kumar,
Advocates
versus
IDEA CELLULAR LIMITED & ANR ..... Respondents
Represented by: Mr.Rajiv Nayyar, Sr.Advocate and
Mr.N.K. Kaul, Sr.Advocate instructed by Mr.Naveen
Chawla, Ms.Sonali Jaitley, Ms.Subha Chauhan, Ms.Parul
Yadav and Ms.Nidhi Mohan Parashar, Advocates for R-1.
Mr.Parag Tripathi, Sr.Advocate and Mr.Maninder Singh,
Sr.Advocate instructed by Mr.Saikrishna Rajagopal,
Mr.Gopal Jain, Mr.Sidharth Chopra, Ms.Sneha Jain,
Mr.Shadan Farasat and Mr.Krishan Mohan, Advocates.
for R-2.
AND
RFA(OS) 127/2012
BOARD OF CONTROL FOR CRICKET
IN INDIA (BCCI) ..... Appellant
Represented by: Mr.C.A.Sundaram, Sr.Advocate
instructed by Mr.Amit Sibal, Ms.Radha Rangaswamy,
Ms.Rohini, Ms.Akhila Kaushik and Mr.Raman Kumar,
Advocates
RFA(OS)s No.114-116/2012 & 125-127/2012 Page 3 of 16
versus
PIYUSH AGARWAL & ORS. ..... Respondents
Represented by: Mr.Sudhir Chandra, Sr.Advocate
instructed by Ms.Gayatri Roy, Mr.Hihanshu Bagai,
Mr.Thomas George and Mr.Udit Sood, Advocates for
R-1 & R-2.
Mr.Parag Tripathi, Sr.Advocate and Mr.Maninder Singh,
Sr.Advocate instructed by Mr.Saikrishna Rajagopal,
Mr.Gopal Jain, Mr.Sidharth Chopra, Ms.Sneha Jain,
Mr.Shadan Farasat and Mr.Krishan Mohan, Advocates.
for R-3.
CORAM:
HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
HON'BLE MR. JUSTICE MANMOHAN SINGH
PRADEEP NANDRAJOG, J.
1. Three captioned appeals have been filed by Star India Pvt. Ltd. and
three by Board of Control for Cricket in India (hereinafter referred to as the
„BCCI‟) against the judgment and decree dated 8th November, 2012 passed in
three suits; being CS(OS) No.2722/2012, 2780/2012 & 3232/2012 filed by
Star India Pvt. Ltd. against the respondents which included BCCI as a
common defendant in all the suits; being defendant No.3 in CS(OS)
No.2722/2012 and defendant No.2 in CS(OS) Nos.2780/2012 & 3232/2012.
2. Suits filed by Star India Pvt. Ltd. have been dismissed subject to the
observations made in para 25 of the impugned decision dated November 08,
2012, which grant a limited injunction. Pithily stated, subject matter of the
suits was the same i.e. a claim by Star India Pvt. Ltd. under an agreement
entered into between it and BCCI and the complaint was that the activities of
the contesting defendants transmitting match updates through MMS and
SMS; alleging that the same were eating into the revenue of the plaintiff.
3. It would be relevant to note the dates on which the three suits filed by
Star India Pvt. Ltd. were listed before the learned Single Judge or the learned
Joint Registrar attached to the Court.
CS(OS) No.2722/2012
4. CS(OS) No.2722/2012 was the first suit filed by Star India Pvt. Ltd.
impleading Piyush Agarwal and Akuate Internet Services Pvt. Ltd. as
defendants No.1 and 2, against whom relief of injunction and damages was
claimed. Board of Control for Cricket in India (BCCI) was impleaded as a
defendant No.3 but without any relief claimed against said defendants for the
reason the plaintiff was claiming a right under an agreement with defendant
No.3. An application for interim injunction was filed along with the suit.
The suit along with the interim application was listed for admission before
the learned Single Judge on 7th September, 2012 on which date defendants
No.1 & 2 appeared before the learned Single Judge and as recorded in the
order-sheet accepted summons in the suit and notice in the interim
application and vehemently opposed grant of any ad-interim injunction.
Granting time to file written statements it was directed that the defendants
would deposit `15 lakhs with the Registrar General of this Court. The suit
and the interim application were adjourned for September 25, 2012, expressly
recording that on said date the application for interim injunction would be
heard. It was directed that the plaintiff shall produce the original contract on
the next date.
5. On 25th September, 2012, it was realized that defendant No.3, who
undisputedly had a vital stake in the litigation, inasmuch as rights in favour of
the plaintiff were claimed through said defendant, was not served because
summons were not issued to said defendant, as recorded in the order dated
September 25, 2012, summons were issued to defendant No.3 returnable for
November 05, 2012. It was recorded that counsel for the plaintiff had
produced the contract under which it was claiming a right through defendant
No.3 but stated that it contained confidential clauses to which defendants
No.1 and 2 have no right of access, accordingly directions were issued that
the redacted contract would be filed by the plaintiff in a sealed cover and that
the defendants can inspect the same. It was directed that the Registry will
allow inspection of the said document to defendants No.1 and 2.
6. Thus defendants No.1 and 2 filed I.A.No.19780/2012 under Order XI,
Rule 18 CPC for being permitted to inspect the document filed by the
plaintiff, which application was listed before the learned Joint Registrar on
October 31, 2012, who recorded that defendants No.1 and 2 insist that they
required the complete document for preparing the written statement. The
learned Joint Registrar noted that the suit was already listed before the
learned Single Judge on November 05, 2012 and accordingly directed that the
said application would be placed before the learned Single Judge.
7. It stands recorded in the order-sheet dated November 05, 2012 that
after some arguments counsel for the plaintiff stated that the original contract
would be made available to defendants No.1 and 2. Presence of counsel for
defendant No.3 was recorded inasmuch as said defendant had been served
with the summons in the suit on November 01, 2012. The matter was
adjourned to November 08, 2012 for arguments on the injunction application.
8. We highlight that with respect to the completion of pleadings in the
main suit nothing was recorded in the order-sheet.
CS(OS) No.2780/2012
9. CS(OS) NO.2780/2012 was filed by Star India Pvt. Ltd. impleading
OnMobile Global Limited and Board of Control for Cricket in India (BCCI)
as defendants No.1 and 2 respectively. Averments in the plaint were identical
as the earlier suit save and except with respect to the description of the
defendants; and similar relief was prayed for. The suit was listed before the
learned Single Judge on September 12, 2012 when counsel appeared for
defendant No.1 and accepted notice of summons in the suit and the
application seeking interim relief. 30 days‟ time was granted to defendant
No.1 to file the written statement and matter was listed before the Joint
Registrar for admission/denial for October 30, 2012. It was made clear that
summons in the suit would be returnable for defendant No.2 for October 30,
2012. Application for interim injunction was directed to be listed on
November 16, 2012 before the Court.
10. Order dated October 30, 2012 passed by the learned Joint Registrar
simply records admission/denial conducted by plaintiff and defendant No.1
and admitted documents being exhibited. In spite of note put up by the
Registry that there was no report regarding summons in the suit being or not
being served upon defendant No.2, the learned Joint Registrar passed no
orders with respect to service on defendant No.2. The matter was simply
renotified for November 08, 2012 for further admission/denial as counsel for
the plaintiff informed that along with the replication some further documents
were filed.
11. On November 08, 2012, the learned Joint Registrar passed an order as
under:-
"This matter was listed before this Court for admission/
denial of the documents. However, it has been informed
that this matter has been mentioned today before Hon‟ble
Court by learned counsel for the parties. The Hon‟ble
Court has directed to list this case before Hon‟ble Court
today itself. The matter be sent immediately to the
Hon‟ble Court for further orders. However, the date
already fixed in this matter before Hon‟ble Court is
16.11.2012."
12. The order was probably passed by the learned Joint Registrar in view
of an order passed by the learned Single Judge on the same date, which reads
as under:-
"This suit was listed before the Joint Registrar for
admission/denial of documents. At the request of the
counsel for both the parties, I have called for the suit
inasmuch as the issue in the present suit is the same as the
issues in connected suits being CS(OS) Nos.2722/2012
and 3232/2012. This suit is accordingly being heard along
with connected suits."
13. The record of the suit would reveal that summons issued for service on
defendant No.2 have till date not been received back, but counsel for
defendant No.2 i.e. BCCI informs us that summons in the suit were received
on November 12, 2012, i.e. much after the suit was disposed of.
CS(OS) No.3232/2012
14. CS(OS) No.3232/2012 was filed by Star India Pvt. Ltd. impleading
Idea Cellular Ltd. as defendant No.1 and BCCI as defendant No.2. The suit
was identically worded as the previous suits with similar reliefs. The suit and
the application seeking interim injunction were listed for admission before
the learned Single Judge on November 07, 2012 who passed the following
order:-
"It transpires during arguments that another suit involving
similar issue being CS(OS) No.2722/2012 is pending
before HMJ Kailash Gambhir whereas another suit
involving similar issue being CS(OS) No.2780/2012 is
pending before HMJ Valmiki J. Mehta.
Hence, subject to orders of Judge Incharge
(Original Side), this matter be also listed before HMJ
Kailash Gambhir on 8.11.2012."
15. Since order dated November 07, 2012 required formal orders to be
passed by the Judge In-Charge Original Side to list the matter before another
Judge as per the judicial order passed, the Judge In-Charge Original Side
called for the file of all the three suits and directed that all would be listed
before one Hon‟ble Judge.
16. It is due to the aforesaid administrative order passed by the Judge In-
Charge Original Side that all the suits came to be listed before a learned
Single Judge on November 08, 2012, when as per the impugned judgment
and decree dated November 08, 2012, the suits were disposed of on merits
after counsel for the parties were heard, holding that the plaintiff has not
established any right either under the Copyright Law or the Common Law;
and yet in spite thereof, a limited injunction has been granted as per
paragraph 25 of the impugned decision.
17. The plaintiff of the three suits i.e. Star India Pvt. Ltd. as also BCCI
have filed three appeals each challenging the impugned decree and
defendants No.1 and 2 in CS(OS) No.2722/2012 have filed cross-objections
vide CM No.19768/2012 against the limited injunction granted.
18. From the facts noted aforesaid it is apparent that the learned Single
Judge was pressurized, and if we may use the hard expression, virtually
bulldozed by learned counsel for the plaintiff and probably supported by
learned counsel for BCCI, to hear the application seeking interim injunction
and counsel for contesting defendants opposing any ad-interim injunction till
pleadings were completed.
19. What was the pressure about?
20. BCCI, as we all know, organizes bilateral and international cricket
matches; and cricket being a craze in India, huge revenues are generated from
the cricket matches organized. As per Star India Pvt. Ltd. under an
agreement entered into between it and BCCI, exclusive rights with respect to
cricket matches organized by BCCI were purchased by it for an astronomical
sum of `3,851 crores. The duration of the exclusive rights was six years. It
was the case of the plaintiff that its „Mobile Rights‟ and „Mobile Activation
Rights‟ were adversely affected by the activities of the contesting defendants
when through MMS and SMS match updates were being provided by the
contesting defendants. The England - India Test Series was to commence in
mid November 2012, and this explain the hurry.
21. Now, the procedures of the law have to be followed. The facts noted
herein above would bring out that as regards CS(OS) No.2722/2012
summons were issued to defendant No.3 i.e. BCCI returnable for November
05, 2012 on which date counsel appeared for BCCI, but the debate before the
learned Single Judge, as recorded in the order dated November 05, 2012 was
whether the plaintiff should file the original contract which it had entered into
with defendant No.3 inasmuch as the contesting defendants, as per IA
No.19780/2012 had informed the Court that unless they had access to the
document on which the suit was founded they could not file a written
statement; no orders were passed by the learned Single Judge with respect to
written statement to be filed; and in any case as regards BCCI law grants 30
days‟ time to BCCI to file a written statement. Only the injunction
application was listed for arguments on November 08, 2012. The suit was
not even listed. As regards CS(OS) No.2780/2012 summons were issued to
BCCI for October 30, 2012. As regards defendant No.1 after directing
written statement to be filed the application for interim injunction was
directed to be listed on November 16, 2012. In the meanwhile the matter had
to be listed before the learned Joint Registrar for admission/denial and service
upon BCCI. There was no service report on said date. No orders were passed
with respect to service of summons on BCCI by the learned Joint Registrar
who simply re-notified the matter for November 08, 2012 recording partial
admission/denial. As regards CS(OS) No.3232/2012, it was listed for the
first time on November 07, 2012 and noting that two earlier suits were
pending before two other learned Single Judges, it was directed that the
matter be listed before one of the two learned Single Judges. The Judge In-
Charge Original Side called for all the three files and listed the same before
one learned Single Judge.
22. BCCI had not been served with summons in two suits on November
08, 2012. It had been served with summons in only one suit. Pleadings had
yet to be completed. CS(OS) No.2780/2012 was scheduled to be listed on
November 16, 2012.
23. The learned Single Judge before whom all three suits were listed and
who had not received the file of CS(OS) No.2780/2012 because the suit was
listed before the learned Joint Registrar on said date, summoned the file for
that very date and we find that without pleadings being completed the suit has
been disposed of.
24. It may be true that where a plaint does not disclose a cause of action, at
any stage of the proceedings the plaint can be rejected. But a distinction has
to be maintained with respect to the procedure to be followed when this is
done.
25. If a suit is listed for preliminary hearing and summons have yet to be
issued, it would be perfectly open to a Judge to consider the averments made
in the plaint and decide whether an actionable cause has been pleaded or
whether the suit on the face of it is barred by any law. The plaintiff has not to
be put to any notice. But where summons have been issued in the suit and
thereafter a learned Single Judge opines that summons were wrongly issued
inasmuch as the plaint does not disclose an actionable cause or is barred by
law, the plaintiff has to be put to notice. Creative surprises cannot be sprung
at any party.
26. Learned counsel for the contesting respondents insisted before us that
the impugned decision dated November 08, 2012 may be treated as rejection
a plaint under Order VII Rule 11 CPC, but could not overcome the problem
that if this was so, the learned Single Judge could not have issued the limited
permanent injunction against which limited relief granted to Star India Pvt.
Ltd., even the contesting respondents had filed cross objections.
27. We remind ourselves of the ringing words expressed in the decision
reported as [1924] 1 KB 296 R v. Sussex : „Not only must Justice be done; it
must also be seen to be done.'
28. We therefore do not deal with the merits of the matter at all and
express no opinion on the impugned decision inasmuch as we find a serious
procedural flaw, in that, when the suits were disposed of BCCI had not been
served with summons in two suits. The contesting defendants of CS(OS)
No.2722/2012 had yet to file a written statement. Their application under
Order XI Rule 18 CPC for supply of the complete agreement on which the
suit was founded was still pending. Only the application seeking injunction
was listed for hearing on November 08, 2012. BCCI had been served with
summons in the suit on November 01, 2012 and 30 days‟ time available for
filing the written statement was not over by November 08, 2012. In the other
two suits BCCI had not even been served with the summons in the respective
two suits.
29. What has happened is obvious. We have already opined thereon in
paragraph 18 to 20 above.
30. With as many as 12 senior counsels breathing down the neck of the
Judge; docket explosion breaking the back of the judicial system, it was a
rush-rush affair, and regretfully has resulted in a situation of precious time,
far from being saved, being lost.
31. A self-contradictory decision, which on the one hand holds that law
does not recognize the right sought to be asserted by the plaintiff, on the
reasoning as we read that merely because one owns the broadcast (including
re-broadcast) rights in an event, pertaining thereto law does not recognize any
ownership in any underlying thing in relation to the event; concludes by
issuing a limited injunction and in respect of the reason pertaining to the
limited injunction, would recognize a proprietary right. A paradoxical
situation.
32. This inherent contradiction would make it obvious that it is not a case
where the learned Single Judge has rejected the plaint invoking power under
Order VII Rule 11 CPC of the Code or the inherent powers of the Court.
That apart, the plaintiffs concede that it is not their case in the plaint that the
action is founded on any right under the Copyright Law; and we find the
impugned decision replete with the discussion on Copyright Law. There are
stray observations in the impugned decision on whether the right could be
founded in Common Law. The magnitude of the procedural problem with
respect to BCCI not being served and the suits being dismissed needs to be
highlighted by us for the reason the decision is declaratory of the ownership
right of BCCI under whom, by way of a contract, Star India Pvt. Ltd. asserts
a right to maintain the action. It could be possible to argue that where a
plaint discloses no cause of action, notwithstanding there being a necessary
party impleaded as a defendant, the plaint can be rejected; but not with a
finding that law does not recognize any right of the kind asserted in the plaint
in the said necessary party without hearing the necessary party and having its
version in the form a written statement for the reason it may happen that the
plaintiff does not make complete pleadings with respect to the
proprietary/ownership right of the party through whom, under a contract it
claims a right, but the said party who gave the right may plead facts showing
the existence of its proprietary/ownership rights.
33. In the instant case(s) the foundation of the claim was a contract under
BCCI i.e. an assignment of a proprietary right of BCCI in favour of the
plaintiff and if the view taken is that BCCI did not have any proprietary right
which was capable of being assigned and hence the plaintiff had no cause of
action to sue, the finding being declaratory of the proprietary right of BCCI,
ought to have awaited a written statement filed by BCCI.
34. We only remind ourselves of the proverb : „Haste makes waste‟ and its
counterpart : „Look before you leap‟.
35. Sensing, and indeed smart counsels do when arguments are heard
(probably from the questions posed by the learned Judges), that in all probability
on account of procedures not being followed the impugned decision would be
set aside learned counsel for Star India Pvt. Ltd. urged that since valuable rights
of his client were adversely affected by the continuing offending activities, we
i.e. the Division Bench must grant an ad-interim injunction till the learned
Single Judge re-decides the application seeking injunction.
36. We declined to hear arguments on said issue for the reason we were
inclined to set aside the impugned decision and remand the matter by
restoring the suits and applications seeking interim injunctions for re-
adjudication by the learned Single Judge; but would simply observe that what
the learned senior counsel was requiring this Court to do was to apply itself
on the limited aspect : Whether pending hearing of application for interim
injunction, should an ad-interim injunction ensue; and for which, in the
paradoxical situation faced by us : of the learned Single Judge holding in one
breath that the plaintiff(s) had no right and at the same time granting a limited
injunction, we thought that we would be better advised to not even deal with
the subject of the power of the Court, in the given situation, to consider
exercising its very limited power to issue an ad-interim injunction, more so
for the reason, prima facie, what is being transmitted to the customers by the
cellular operators with respect to the game of cricket are facts; and it needs a
serious jurisprudential debate to determine : Whether a fact is capable of
being owned, and hence a proprietary right being claimed with respect to a
fact relating to operations in an event. As described by N. Luhmann : Die
Politik der Gesellschaft, operations which are single events without duration
vanish as soon as they appear. Therefore, an observing operation is unable to
observe its own observation - that is to say that the respective operation is not
in the position to observe its own execution, and at the same time it is not
even able to see that it is not able to see. How, this can be applied to the
jurisprudence pertaining to a cricket match where a ball bowled is a single
event without duration and vanishes as soon as it appears and similar is the
situation to every ball played. The event, being without duration, vanishes as
soon as it appears : Would the same hold true to the duration of it being
news? If yes, to what effect? Whether the fact of this vanishing event is
capable of being owned? If yes, for what duration? If the fact of this
vanishing event is not capable of being owned, would the fact pertaining to
this vanishing event be public property capable of being used and exploited
commercially by one and all? If a fact relating to such an event is „hot news'
does common law of „unfair competition' confer any right in the event
organizer or the assignee with respect to the fact? This is just a food for
thought for the learned Single Judge and not to be treated as an expression of
any opinion by the Division Bench. We highlight once again that the written
statement by BCCI has yet to surface. In what manner BCCI claims a
proprietary/ownership interest would have to be seen for the reason we can
foresee a situation where the right to commercially exploit would necessarily
require a decision on the very existence of a proprietary right capable of
being owned or recognized by law as a proprietary right.
37. The appeals and the cross-objection are disposed of setting aside the
impugned judgment and decree dated November 08, 2012. CS(OS)
No.2722/2012, CS(OS) No.2780/2012 and CS(OS) No.3232/2012 are
restored along with all pending applications, which would include the
application seeking interim injunction.
38. We grant two weeks time to BCCI to file written statement in all the
three suits and likewise grant two weeks time to such of the contesting
defendants who have not filed written statements. Replications would be
filed within a week. Within a week thereof the applications for interim
injunction would be taken up by the learned Single Judge for re-hearing.
39. We make it clear that in view of the pleadings of the parties, if an issue
arises whether Common Law recognizes any proprietary/ownership interest
in BCCI with respect to cricket matches organized by BCCI, it would be open
to the learned Single Judge to settle the same by way of a preliminary issue,
but only if the pleadings would evidence that the issue arises as a purely legal
issue and not a mix issue of law and fact, for which we may give by example
: Usages and practices in Common Law dominions with respect to accepting
new form of property rights and properties themselves if pleaded in the
pleadings may require evidence to be led.
40. The three suits shall now be listed before the learned Joint Registrar on
December 21, 2012. The applications would be listed before the learned
Single Judge on January 07, 2013.
41. There shall be no order as to costs in the appeals.
(PRADEEP NANDRAJOG)
JUDGE
(MANMOHAN SINGH)
JUDGE
DECEMBER 03, 2012
dk
