Ramesh Sippy vs Pen India Pvt Ltd & Anr
2013 Latest Caselaw 740 Del

*             IN THE HIGH COURT OF DELHI AT NEW DELHI

+                                CS(OS) 3273/2012

                                      Date of Decision: 14th February, 2013

IN THE MATTER OF
RAMESH SIPPY                                         ..... Plaintiff
                               Through : Mr. S. Ganesh, Sr. Advocate with
                               Mr. Varun Singh, Advocate


                        versus

PEN INDIA PVT LTD & ANR                               ..... Defendants
                               Through : Ms. Pratibha M. Singh with
                               Mr. Sudeep Chatterjee and
                               Mr. Ashwin Kumar, Advocates

CORAM
HON'BLE MS.JUSTICE HIMA KOHLI

HIMA KOHLI, J. (Oral)

I.A.No.2371/2013 (by the plaintiff u/O XXIII R-1 r/w Section 151 CPC)

1. This application has been filed by the plaintiff under Order XXIII

Rule 1 read with Section 151 CPC praying inter alia for permission to

unconditionally withdraw the accompanying suit filed against the

defendants. Before dealing with the present application, it is necessary

to briefly advert to the sequence of events from the date of institution of

the case.

2. The plaintiff has instituted the accompanying suit against the two

defendants praying inter alia for the relief of perpetual injunction, for

restraining them from proceeding further with the making of the 3D

version of the cinematograph "Sholay" and if its making was complete,

then the said version be not distributed, exhibited or exploited in any

manner. The plaintiff has also sought the reliefs of delivery up, damages,

etc., against the defendants.

3. The present suit was filed by the plaintiff on 5.10.2012, but was

returned under objections on two occasions and the same finally came to

be listed in Court for admission on 16.11.2012. On the aforesaid date,

though there was no caveat, appearance was entered on behalf of the

defendants by Ms. Pratibha M. Singh, Advocate and she had contested the

suit on the ground that it is bad for non-joinder of necessary parties, i.e.,

a company by the name of Sholay Media and Entertainment Pvt. Ltd.,

who was stated to be the owner of the copyright in the film "Sholay" and

had entered into an Agreement dated 20.7.2011 with the defendant No.1,

permitting the latter to make a 3D version of the said film.

4. In response, learned counsel for the plaintiff had stated that he

would obtain necessary instructions from his client and file an appropriate

application for impleadment of Sholay Media and Entertainment Pvt. Ltd.,

if necessary. On the aforesaid date, the plaint was registered and

summons in the suit were accepted by the learned counsel for the

defendants, who had sought time to file a written statement. While

granting time to the defendants to file their written statement, the suit

was directed to be listed before the Joint Registrar on 16.1.2013 for

completion of pleadings and for admission/denial of documents and in

Court on 30.4.2013, for framing of issues.

5. As regards the application filed by the plaintiff under Order II Rule 3

read with Section 151 CPC, registered as I.A.No.20627/2012, notice was

issued on the said application and the parties were directed to complete

pleadings therein before the next date fixed in the matter. With respect

to the second application filed by the plaintiff under Order XXXIX Rules 1

& 2 read with Section 151 CPC for stay, registered as I.A.No.20626/2012,

arguments were addressed by the counsels for the parties and after

hearing their submissions, the Court had expressed its disinclination to

grant any ad interim injunction in favour of the plaintiff and instead had

directed that pleadings be completed in the application and it was

adjourned to 29.1.2013.

6. On 16.1.2013, when the suit was listed before the Joint Registrar,

an application filed by the defendants under Order VIII Rule 1 CPC,

registered as I.A.No.734/2013, was taken up for consideration.

Simultaneously, another application which was filed by the defendants

under Order I Rule 10 CPC, registered as I.A.No.735/2013, seeking

impleadment of the Sholay Media and Entertainment Pvt. Ltd was also

taken up for consideration. Notice was issued on the said application and

it was re-listed on 11.4.2013.

7. Before 29.1.2013, the date fixed by this Court for arguments in

I.A.No.20626/2012, the plaintiff approached the Bombay High Court and

instituted a suit there against the defendants herein and seven other

parties, including Sholay Media and Entertainment Pvt. Ltd. praying inter

alia for a series of reliefs, including the reliefs of declaration, delivery up,

mandatory and permanent injunction, etc. relating to the 3-D version of

the film "Sholay". The aforesaid suit was listed before the Bombay High

Court on 21.1.2013 and appearance was entered on behalf of the

defendants No.1 to 6 therein. On the said date, the application filed by

the plaintiff for interim relief was taken up for consideration and in view of

the submission made by the learned Senior Advocate appearing for the

defendants No.1 to 6 there that the 3D version of the film "Sholay" would

not be completed before February, 2013, the Court did not grant any

interim relief to the plaintiff and did not restrain the defendants from

proceeding with the making of the 3D version of the said film and instead,

it called upon the parties to complete pleadings in the suit, while

adjourning the matter for 25.02.2013.

8. On 29.1.2013, when the interim application, filed by the plaintiff

under Order XXXIX Rules 1 & 2 CPC, came up for hearing before this

Court, instead of pointing out that the plaintiff had instituted a

subsequent suit against the defendants and some other parties in respect

of the 3D version of the film "Sholay" in the Bombay High Court, time was

sought on behalf of the plaintiff to file a rejoinder to the reply filed by the

defendants. It was at that stage that counsel for the defendants had

intervened and had stated that the plaintiff is indulging in forum shopping

and she had brought to the notice of this Court the subsequent suit filed

by him in the Bombay High Court. In response to the aforesaid

submission, an adjournment was sought by the learned Senior Advocate

appearing for the plaintiff to enable him to seek instructions and at his

request, the suit was adjourned to 14.2.2012, i.e., today, for reporting

instructions.

9. In the meantime, the present application came to be filed by the

plaintiff under Order XXIII Rule 1 read with Section 151 CPC, seeking

leave to withdraw the present suit. Notice was issued on the application

on 12.2.2013 and a reply to the application in opposition has been filed by

the defendants.

10. Learned Senior Advocate appearing for the plaintiff submits that the

plaintiff being dominus litis is entitled in law to withdraw the suit at any

stage and he has exercised the said right by filing the present application

for unconditional leave to withdraw the accompanying suit.

11. Counsel for the defendants has vehemently opposed the present

application and she submits that the same has been filed with mala fide

intention and the plaintiff is guilty of forum shopping. She has argued that

if permission is granted to the plaintiff to simply withdraw the

accompanying suit, the same would result in great injustice to the

defendants, who shall have to de novo oppose the application for stay

filed by the plaintiff before the Bombay High Court. She states that the

plaintiff was under an obligation to have informed the Court at the very

first occasion that he had approached the Bombay High Court by filing a

subsequent suit in respect of the same film, which is the subject matter of

the present suit and for other reliefs, which he has failed to do and

instead, he proceeded to take his chance by filing an interim application

for stay along with the aforesaid suit before the Bombay High Court,

knowing very well that he had not succeeded in obtaining any ad interim

order on the interim application for the same relief filed and pending in

the present proceedings.

12. Further, counsel for the defendants submits that despite the fact

that it was the plaintiff who was required to implead Sholay Media and

Entertainment Pvt. Ltd. as a defendant in the present proceedings, he had

failed to do so and instead, it was left to the defendants to file such an

application and when the said application filed by the defendants under

order I Rule 10 CPC was listed before the Joint Registrar, instead of

conceding the relief sought therein, the same was opposed by the counsel

for the plaintiff and a reply thereto was sought to be filed. She submits

that the aforesaid conduct of the plaintiff flies in the face of the stand that

has been taken by him in the suit subsequently instituted in the Bombay

High Court, where he has himself proceeded to array Sholay Media and

Entertainment Pvt. Ltd. as defendant No.5. She contends that the plaintiff

has also sought to mislead the Bombay High Court by making some

averments in para 12 of the application, which are contrary to the correct

facts and the records of this Court. In support of her submission that the

present application is an abuse of the process of law and it ought to be

dismissed with exemplary costs, she relies on the following decisions :-

(i) K.S. Bhoopathy & Ors. vs. Kokila & Ors., (2000) 5 SCC 458;

(ii) Vineeta Sharma vs. Rohit Sripat Singh, 2000 (56) DRJ (Suppl.) 481, and

(iii) Udyami Evam Khadi Gramodyog Welfare Sanstha & Anr.

vs. State of Uttar Pradesh & Ors., (2008) 1 SCC 560.

13. The aforesaid submissions made by the counsel for the defendants

are rebutted by Mr. S. Ganesh, Senior Advocate appearing for the

plaintiff. He states that the plaintiff did not have any such intention to

mislead the Court as argued by the other side and the only fault

attributable to him is that he was not prompt enough to have apprised the

Court of the institution of the subsequent suit before the Bombay High

Court well in time. He disputes the submission of the other side that the

plaintiff did not reveal the relevant details of the present suit to the

Bombay High Court and submits that the plaintiff has extensively alluded

to the present suit in the averments made in the subsequent suit

instituted by him in the Bombay High Court, which fact is borne out from

a perusal of the said plaint, copy whereof has been placed on record by

the defendants. He also relies on the provisions of sub-rule (1) of Order

XXIII Rule 1 CPC to urge that the plaintiff is well entitled to abandon his

suit or abandon a part of his claim against all or any of the defendants at

any time after the institution of the suit and no permission is required

from any quarter, including the court for the said relief.

14. Per contra, counsel for the defendants relies on sub-rule (4) of

Order XXIII Rule 1 CPC to argue that if the plaintiff is abandoning the

present suit then he is liable to pay costs as the court may award and he

should be barred from instituting any fresh suit in respect of the same

subject matter or such part of the claim, as has been done by him by

instituting a subsequent suit in the Bombay High Court.

15. The Court has heard the counsels for the parties and has carefully

considered their submissions. A narration of the sequence of events in

present proceedings has been made only to set out the manner in which

the suit has progressed in this Court from day one. As noted above, the

defendants had entered appearance in the present suit on the very first

date, i.e., on 16.11.2012, and counsel for the defendants had opposed

the interim relief, prayed for by the plaintiff in I.A. No.20626/2012. At

that stage, having heard the counsels for the parties for some time, the

Court was not pursuaded to grant any ad interim relief to the plaintiff and

the matter was adjourned to 29.11.2013 for consideration, after pleadings

were directed to be completed in the aforesaid application. It cannot be

argued by learned counsel for the plaintiff that even one day before

17.01.2013, the date fixed before the Joint Registrar, the plaintiff was

unaware of the fact that he had decided to institute a suit in the Bombay

High Court more so when the same was at an advance stage of

preparation by then.

16. It is also relevant to note from a copy of the plaint of the aforesaid

suit filed by the plaintiff in the Bombay High Court that it runs into forty

nine pages and it was verified on 15.1.2013, i.e., one day prior to the

date when the present suit was listed before the Joint Registrar. Thus,

had he so wanted, the plaintiff could have easily instructed his counsel in

Delhi to have brought to the notice of the court the fact that he was

proposing to file a suit in the Bombay High Court. Rather than revealing

the said information to the Court, counsel for the plaintiff had opposed

the application filed by the defendants under Order I Rule 10 CPC for

impleadment of Sholay Media and Entertainment Pvt. Ltd. and instead,

sought time to file a reply to the said application.

17. Further, even on 29.1.2013, the date fixed before this Court, the

plaintiff was not candid enough to have apprised the Court at the very

outset about the institution of the subsequent suit in the Bombay High

Court or the proceedings that took place therein on 21.1.2013, which was

just a week prior thereto. Instead, it was left for the defendants to bring

to the notice of this Court the factum of institution of the aforesaid suit

and the proceedings conducted therein. Further, the defendants had

been vigilant in protecting their interest and in the absence of a caveat,

they had entered appearance in the present suit on their own upon seeing

it listed in the cause list. Their counsel had appeared and vehemently

contested the application filed by the plaintiff for ad interim relief. This

only fortifies the submission of the learned counsel for the defendants

that if the plaintiff is granted unconditional leave to withdraw the present

suit, it would result in dislodging the defendants from the advantage

gained by them in the present proceedings.

18. It is also relevant to note that on 29.1.2013, when the factum of

filing of the subsequent suit by the plaintiff in the Bombay High Court was

pointed out by the counsel for the defendants, instead of conceding to the

said position, learned Senior Advocate appearing for the plaintiff had

sought an adjournment to obtain instructions from his client and it was at

his request that the suit was adjourned for today. This is also a reflection

on the plaintiff, who had apparently failed to brief his counsel in Delhi of

the subsequent events that had transpired at Mumbai in the interregnum.

19. In such circumstances, the Court is inclined to concur with the

submissions made by learned counsel for the defendants that if the

present application filed by the plaintiff for withdrawal of the suit is

allowed, then costs ought to be imposed on him. At the same time, this

Court is not inclined to accept the submissions made by the counsel for

the defendants that the present suit should not permitted to be disposed

of as withdrawn but ought to be dismissed for the reason that the

provisions of Order XXIII Rule 1 CPC leave no manner of doubt that the

plaintiff being dominus litis is well entitled to unconditionally withdraw the

suit at any time after its institution, against any or all the defendants and

the court cannot refuse permission to withdraw the suit in such

circumstances and nor can the court compel the plaintiff to proceed with

it.[Refer: Hulas Rai Baij Nath Vs. Firm K.B.Bass & Co., AIR 1968 SC

111, Surakshit Exports Pvt.Ltd. & Ors. Vs. M/s GCG Transglobal Housing

Project Pvt. Ltd., 2012 (188) DLT 243.

20. A perusal of the plaint filed by the plaintiff in the Bombay High

Court, fortifies the submission made by the counsel for the plaintiff that

he had not kept away the factum of institution of the present suit in this

Court from the Bombay High Court. Rather, the plaintiff had not only

made extensive reference to the present suit in the body of the plaint filed

in the Bombay High Court, he had also placed on record, a copy of the

order dated 16.11.2012 passed by this Court.

21. In view of the aforesaid facts and circumstances, it is deemed

appropriate to allow the present application, but with costs of `50,000/-

to be paid to the defendants, through counsel, within one week from

today. While disposing of the present application, the right of the

defendants to invoke the provisions of Order XXIII Rule 4 CPC and

Section 11 of the CPC against the plaintiff before the Bombay High Court,

in accordance with law, is preserved. It is also clarified that the

observations made hereinabove shall not be treated as an expression on

the merits of the suit instituted by the plaintiff in this Court or the

Bombay High Court.

22. The application is disposed of.

CS(OS) 3273/2012 & I.A.Nos.20626-27/2012 and 735/2013

In view of the order passed herein above in I.A.No.2371/2013, the

suit is dismissed as withdrawn, along with the pending applications.

                                                            (HIMA KOHLI)
FEBRUARY 14, 2013                                              JUDGE
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