Swami Asangananda Bharti vs Himalayan International ...
2012 Latest Caselaw 1464 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

%                           Date of Judgment: 01.3.2012


+                  CRP No.211/2007


SWAMI ASANGANANDA BHARTI     ..... Petitioner
               Through: Ms.Panchajanya Batra Singh,
                        Advocate.

                   versus


HIMALAYAN INTERNATIONAL INSTITUTE OF YOGA
SCIENCE & PHILOSOPHY, KANPUR    ..... Respondent
                  Through: Mr.Sanjeev Aggarwal, Advocate.


      CORAM:
      HON'BLE MS. JUSTICE INDERMEET KAUR


INDERMEET KAUR, J. (Oral)

1. Order impugned is the order dated 01.10.2007. Vide this order

the application filed by the defendant under Order 7 Rule 11 of the Code

of Civil Procedure (hereinafter referred to the as the Code) had been

dismissed.

2. Record shows that the present suit has been filed by the plaintiff

i.e. Himalayan International Institute of Yoga Science and Philosophy

through its vice-president Roshan Lal for injunction, damages and

infringement of copy right. Plaintiff is stated to be a society having its

registered office at Kanpur. Plaintiff had started publication of a

periodical magazine by the name of „Inner light". Copy right and the

publishing right of the said magazine remained the sole rights of H.H.

Late Swami Ram which was his literary work. After his demise the

powers of the society vested with the executive committee as per bye

laws of the society. Defendant was never a member of the executive

committee or an employee of the plaintiff society; he has no designation

or locus standi in the plaintiff society. After the demise of H.H. Late

Swami Ram defendant projected himself as the founder director of the

plaintiff society and to obtain undue benefits and unduly makes profits

using the name of the plaintiff society, he started the publication of the

magazine "Inner light" although he was fully aware that the copy right

and proprietorship of this magazine was assigned by the author and

founder president H.H. Late Swami Ram in favour of the plaintiff

society. This came to the notice of the plaintiff society in the year 2003

when some of the officers came across one of such edition published by

the defendant in the name of the plaintiff society. Defendant has

committed infringement of copy right of the plaintiff. An earlier suit for

injunction and declaration with regard to non-association of the

defendant with the plaintiff society had been filed wherein the defendant

had made a statement that he has no affiliation or concern with the

plaintiff society. This was on 07.5.2004 and 05.6.2004 in OS

No.72/2004 in the proceedings pending in the court of Shri Gautam

Manan, Civil Judge, Tis Hazari, Delhi; suit was disposed of but the

defendant continued to use the name of the plaintiff society. The

defendant is trying to obtain undue benefit by the publication of this

magazine copy right of which vests solely with the plaintiff society.

Accordingly the present suit had been filed seeking a permanent

injunction restraining the defendant from infringement of the copy right

of the magazine "Inner light". Rs.1,00,000/- had been claimed as

damages as also the recovery of illegal profit which the defendant has

earned from the infringement of the copy right of the plaintiff.

3. An application under Order VII Rule 11 of the Code was filed by

the defendant seeking rejection of the plaint; his contention was that the

plaint discloses no cause of action against the defendant; it does not

substantiate the existence of any copy right in favour of the plaintiff;

contention being that they can never be a copy right in a magazine.

Attention has been drawn to the definition of "infringing copy" as

contained in Section 2(m) of the Copyright Act, 1957 as also Section 14;

submission being reiterated that in the absence of material particulars

having been disclosed in the plaint, the trial would be a useless exercise.

Plaint is liable to be rejected. Reliance has been placed upon a judgment

reported in AIR Karnataka 406 Associated Electronic & Electrical

Industries (Banglore) Pvt.Ltd. Vs. M/s Sharp Tools to support this

submission; contention being that in order to be an actionable claim the

copy of which the infringement has been alleged must be substantial and

a material one which at once leads to the conclusion that the defendant

is guilty of an act of piracy.

4. Further submission is that this case is a personal vendetta of the

plaintiff against the defendant.

5. It is a settled position at law that while dealing with an application

under Order VII Rule 11 of the Code it is only the averments made in

the plaint which have to be looked into. The defence projected as

sought to be set up by the defendant cannot be looked into for the

purpose of dealing with an application under the aforenoted noted

statutory provisions.

6. The present suit has been filed by the Roshan Lal stating himself

to be duly authorized by the society as per its bye laws to file the suit.

The plaintiff has described itself as the Himalayan International Institute

of Yoga Science and Philosophy. Record shows that the defendant was

earlier a manager of the institution but he was thereafter removed by the

founder president himself i.e. H.H. Late Swami Ram. It is also an

admitted position that the plaintiff society is registered as per the rules

of registration. Contention of the plaintiff is that the defendant is using

the name of the plaintiff society deceptively in similar manner and

publishing the magazine "Inner light" whose copy right had been

assigned to the plaintiff by H.H. Late Swami Ram. Averments made in

the plaint clearly discloses a cause of action against the defendant;

submission of the defendant that the plaint is liable to be rejected as no

cause of action has been disclosed is an argument bereft of merit. The

averments made in the application which was the subject matter of the

impugned order are defenses sought to be raised by the defendant; the

same cannot be gone into while dealing with an application under Order

VII Rule 11 of the Code; they are all matters which require trial. Petition

is wholly without any merit. Dismissed.

INDERMEET KAUR, J MARCH 01, 2012 nandan