Neena Khanna & Anr v. Peepee Publishers & Distributors Pvt Ltd

judgment.

¶116We We might give another instance of an interlocutory order which amounts to an exercise of discretion and which may yet amount to a judgment within the meaning of the Letters Patent. Suppose the Trial Judge allows the plaintiff to amend his plaint or include a cause of action or a relief as a result of which a vested right of limitation accrued to the defendant is taken away and rendered nugatory. It is manifest that in such cases, although the order passed by the trial Judge is purely discretionary and interlocutory it causes gross injustice to the defendant who is deprived of a valuable right of defence to the suit. Such an order, therefore, though

interlocutory in nature contains the attributes and characteristics of finality and must be treated as a judgment within the meaning of the Letters Patent. This is what was held by this Court in Shanti Kumar's case (supra), as discussed above.

¶117Let us take another instance of a similar order which may not amount to a judgment. Suppose the Trial Judge allows the plaintiff to amend the plaint by adding a particular relief or taking an additional ground which may be inconsistent with the pleas taken by him but is not barred by limitation and does not work serious injustice to the defendant who would have ample opportunity to disprove the amended plea taken by plaintiff at the trial. In such cases, the order of the Trial Judge would only be a simple interlocutory order without containing any quality of finality and would therefore not be a judgment within the meaning of Clause 15 of the Letters Patent

¶118The various instances given by us would constitute sufficient guidelines to determine whether or not an order passed by the Trial Judge is a judgment within the meaning of the Letters Patent. We must however hasten to add that instances given by us are illustrative and not exhaustive.

¶119Apart from the tests laid down by Sir White, C.J., the following considerations must prevail with the court:

(1) That the Trial Judge being a senior court with vast experience of various branches of law occupying a very high status should be trusted to pass discretionary or interlocutory orders with due regard to the well settled principles of civil justice. Thus, any discretion exercised or routine orders passed by the Trial Judge in the course of the suit which may cause some inconvenience or, to some extent, prejudice one party or the other cannot be treated as a judgment otherwise the appellate court (Division Bench) will be flooded with appeals from all kinds of orders passed by the Trial Judge. The courts must

give sufficient allowance to the Trial Judge and raise a presumption that any discretionary order which he passes must be presumed to be correct unless it is ex facie legally erroneous or causes grave and substantial injustice.

(2) That the interlocutory order in order to be a judgment must contain the traits and trappings of finality either when the order decides the questions in controversy in an ancillary proceeding or in the suit itself or in a part of the proceedings.

(3) The tests laid down by Sir White, C.J. as also by Sir Couch, C.J. as modified by later decisions of the Calcutta High Court itself which have been dealt with by us elaborately should be borne in mind.

¶120Thus, these are some of the principles which might guide a Division Bench in deciding whether an order passed by the Trial Judge amounts to a judgment within the meaning of the Letters Patent. We might, however, at the risk of repetition give illustrations of interlocutory orders which may be treated as judgments:

(1) An order granting leave to amend the plaint by introducing a new cause of action which completely alters the nature of the suit and takes away a vested right of limitation or any other valuable right accrued to the defendant

(2) An order rejecting the plaint.

(3) An order refusing leave to defend the suit in an action under Order 37, Code of Civil Procedure.

(4) An order rescinding leave of the Trial Judge granted by him under Clause 12 of the Letters Patent.

(5) An order deciding a preliminary objection to the maintainability of the suit on the ground of limitation, absence of notice under

Section 80, bar against competency of the suit against the defendant even though the suit is kept alive.

(6) An order rejecting an application for a judgment on admission under Order 12 Rule

6.

(7) An order refusing to add necessary parties in a suit under Section 92 of the Code of Civil Procedure.

(8) An order varying or amending a decree.

(9) An order refusing leave to sue in forma pauperis.

(10) An order granting review.

(11) An order allowing withdrawal of the suit with liberty to file a fresh one.

(12) An order holding that the defendants are not agriculturists within the meaning of the special law.

(13) An order staying or refusing to stay a suit under Section 10 of the Code of Civil Procedure.

(14) An order granting or refusing to stay execution of the decree.

(15) An order deciding payment of court fees against the plaintiff.

¶121Here, it may be noted that whereas an order deciding the nature of the court fees to be paid by the plaintiff would be a judgment but this order affects only the plaintiff or the Government and not the defendant. Thus, only the plaintiff or the Government as the case may be will have the right to file an appeal in the Division Bench and not the defendant because the question of payment of court fees is a matter between the Government and the plaintiff and the defendant has no locus in this regard.

¶122We have by way of sample laid down various illustrative examples of an order which may amount to judgment but it is not possible to give such an exhaustive list as may cover all possible cases. Law with its dynamism, pragmatism and vastness is such a large ocean that it is well-nigh impossible for us to envisage or provide for every possible contingency or situation so as to evolve a device or frame an exhaustive formula or strategy to confine and incarcerate the same in a straitjacket.

¶8In Shanti Kumar R. Canji Versus The Home Insurance Co. Of New York, AIR 1974 Supreme Court 1719 while considering whether an order on an application for amendment would constitute judgement or not, the Hon"ble Supreme Court held as under :

"If an amendment merely allows the plaintiff to state a new cause of action or to ask a new relief or to include a new ground of relief all that happens is that it is possible for the plaintiff to raise further contentions in the suit, but it is not decided whether the contentions are right. Such an amendment does nothing more than regulate the procedure applicable to the suit. It does not decide any question which touches the merits of the controversy between the parties. Where, on the other hand, an amendment takes away from the defendant the defence of immunity from any liability by reason of limitation, it is a judgment within the meaning of Clause 15 of the Letters Patent. The reason why it becomes a judgment is that it is a decision affecting the merits of the question between the parties by determining the right or liability based on limitation. It is the final decision as far as the trial court is concerned.

¶19In finding out whether the order is a judgment within the meaning of Clause 15 of the Letters Patent it has to be found out that the order affects the merits of the action between the parties by determining some right or liability. The right or liability is to be found out by the court. The nature of the order will have

to be examined in order to ascertain whether there has been a determination of any right or liability."

¶9In our view, the amendment allowed by the learned Single Judge does not , in any manner, take away or abridge any vested right of the Appellant/Defendant No.1. It does not change either nature of the suit or the cause of action on which it is based. It does not even amount to claiming a new or additional relief. The subject matter of the suit is a book on Dermatology, written by the Appellant/Defendant No.1. The cause of action for filing the suit was a letter sent by the Appellant/Defendant No.1 to the Plaintiff/Respondent No.1 withdrawing publishing right of the book from the Plaintiff/Respondent No.1, despite alleged assignment of such rights in its favour and the threatened publication of the second edition by Defendant No.2. The cause of action is not substituted on account of the amendment allowed by the learned Single Judge. The suit filed by the Plaintiff/Respondent No.1 continues to be the suit for injunction, accounts and delivery up. At best, it gives an additional ground to the Plaintiff/Respondent No.1 to claim copyright in the drawings used for illustrations given in the second edition of the book, against the Appellant/Defendant No.1 on the ground that though the authorship of the book as such vested in the Appellant/Respondent No.1, the drawings used for the purpose of the illustrations having been prepared by his employees, the authorship and consequently copyright in them in any case vests in it and not in the Appellant/Defendant No.1. In paragraph 117 of the Judgment, in case of Shah Babulal Khimji

(supra), the Hon"ble Supreme Court held that if the Trial Judge allows the Plaintiff to amend the Plaint by adding a particular relief or taking an additional ground which may be inconsistent with the pleas taken by him but is not barred by limitation, and does not work serious injustice to the Defendant, who would have ample opportunity to disprove the amended plea taken by the Plaintiff at the trial, such order would only be a simple interlocutory order and would, therefore, not be a judgment within the meaning of clause 15 of the Letters Patent. The amendment allowed by the learned Single Judge is far less significant than the amendment envisaged in paragraph 117 of the judgment of the Hon"ble Supreme Court, Here, no relief has been added and there seems to be no inconsistency in the stand taken by the Plaintiff. The suit is at a very initial stage. The Appellant/Defendant No.1 would have opportunity to controvert the plea taken by way of amendment. The Plaintiff would be required to prove, during trial, that drawings in question were prepared by its employee and the Appellant/Defendant No.1 would have opportunity to rebut the claim of the Plaintiff/Respondent No.1 in this regard by leading appropriate evidence.

10.

It was contended by the learned counsel for the Appellant/Defendant No.1 that since the original plaint contains an admission on the part of the Plaintiff that the Appellant/Defendant No.1 was the author of the book; it would amount to withdrawal of this admission, if the Plaintiff is now allowed to plead that the authorship of the drawing vested in it and not in the Appellant/Defendant No.1. We are unable to accept the contention. As rightly submitted by the learned

counsel for the Plaintiff/Respondent No.1, a book may contain material(s) copyright in which may not necessarily vest in author of the book. Such material may include photographs, drawings, sketches etc. Despite such material being included in the book, the person who writes the book is referred as author of the "book" and normally one would not say that he or she, is author of the "book excluding the material, copyright in which vests in someone else". Therefore, saying that the Appellant/Defendant No.1 was author of the "book" does not necessarily mean that she is also copyright holder of each and every material contained in the book. In a given case, the copyright of each and every material contained in the book may vest in the author of the "book" but in another case, the book may contain some material, copyright in which may vest in someone other than the author of the book. But, in both the cases, in common parlance, the person who has written the book would be referred as its author though legally, copyrights of the borrowed material may not vest in him. In our view, the amendment allowed by the learned Single Judge at best gives an additional ground to the Plaintiff/Respondent No.1 to claim publishing rights in the book and this additional ground is not inconsistent with the other grounds taken by him, that is, alleged assignment of rights in its favour.

11.

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. Therefore, even if the Plaintiff/Respondent No.1 committed an error by not pleading, at the very first stage, that the copyright in the drawings used for illustrations vested in it, that by itself cannot be a ground for rejecting the amendment, particularly, when the case is at a very initial stage. 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.

12.

It was pointed out by the learned counsel for the Appellant that as per local amendment made in the State of Punjab and Haryana, which is also applicable to Delhi, Sub-Rule (2) has been added in Rule 17 of Order 6, to provide that the every application for amendment shall state the specific amendments which are sought to be made, indicating the words or paragraphs to be added, omitted from or altered or substituted in or added to the original pleadings. The said requirement has been totally overlooked in this case, as the application for amendment did not contain the precise amendments sought to be made. No doubt, the Plaintiff/Respondent No.1 ought to have specified the proposed amendment in the application itself. But we have to keep in mind, that the objective behind requiring the applicant to specify the proposed amendment in the application, is to enable the opposite party, as well as the Court to know what precisely is sought to be added, omitted or substituted and when the proposed amended Plaint is filed

along with the application, the opposite party as well as the Court are in a position to know what precisely the proposed amendments are. Therefore, we would not be justified in refusing the amendment on this ground alone, particularly, when it has already been allowed by the learned Single Judge. We would like to point out that in Gurdial Singh And Others versus Raj Kumar Aneja and Others, (2002) 2 SCC 445, wherein requirement of this Rule was emphasized by the Hon"ble Supreme Court, the matter was left by the Hon"ble Supreme Court at bringing the Rule to the notice of the Courts in Punjab and Haryana and Chandigarh for being followed in letter and spirit and the Hon"ble Supreme Court did not say that no amendment can be allowed if the application does not strictly confirm to the requirement of the Rule even if proposed plaint is filed along with the application for amendment. We would also like to add that the amendment referred above, in the Rule was made before amendment of Rule 17 of Order 6 of the Code of Civil Procedure with effect from 1.7.2002. We would also like to add that the above referred amendment in Punjab and Haryana and Chandigarh was made with effect from 1.11.1966 whereas Delhi High Court came to be established on 31.10.1966, and this is not the case of the Appellant that it was adopted by Delhi High Court on or after 1.11.1966.

13.

Learned counsel for the Appellant has referred to Jai Prakash Goel And Others versus O.P.Goel & Ors. 129 (2006) DLT

¶437In that case, an Appeal was preferred against the Order of the learned Single Judge appointing Guardian ad litum for Respondent No.3 on account of his mental infirmity. It was held by a Division Bench of this

Court that the impugned Order did not amount to "judgment" within the meaning of Section 10(1) of Delhi High Court Act. This judgment is of no help to the Appellant. The learned counsel for the Appellant has also referred to Abdul Hamim and Others versus Charanjit Mehra and Others, 16(1995) DLT 847 where the learned Single Judge allowed amendment of Written Statement so as to incorporate a new plea whereby ouster of the jurisdiction of the Court was to be sought. Amendment allowed in that case permitted the defendant to set up a new case which affected a valuable right, vested in the Plaintiff, to rely upon an admission made in the Written Statement that the tenancy was a single tenancy to which the Rent Control Act did not apply. As a result of the amendment, the Defendant could withdraw that admission and could plead eight separate tenancies and that would have taken away the right of the Civil Court to evict the defendants. The suit was originally filed by a landlord against an ex-tenant and the nature of the suit had changed, because of the amendment, as a suit against persons claiming to be protected tenants under a current statutory tenancy. But for the amendment, Respondents could not have been able to lead evidence of eight separate tenancies. In these circumstances, it was held that the amendment had permitted addition of a new case and had affected valuable rights which had accrued to the plaintiff, on the date of the suit, to seek evictions of the Respondents on the basis of their admission and through the Civil Court. The facts of the present case are quite different and the amendment allowed by the learned Single Judge does not have the effect of allowing the Plaintiff to take away any vested right accruing

to the Appellant/Defendant No.1.

14.

There is yet another reason, we would not like to interfere with the impugned order. The order allowing amendment is a discretionary order. As held by the Hon"ble Supreme Court in WANDER LTD. AND ANTOHER VS. ANTOX INDIA PRIVATE LTD, 1990 (Suppl.) SCC 727, in Appeals before the Division Bench, against the exercise of discretion by the Single Judge, the Appellate Court will not interfere with the exercise of discretion of the Court in the first instance, and substitute its own discretion, except where the discretion has been shown to have been exercised arbitrarily or capriciously or perversely or where the Court had ignored the settled principles of law. The view taken by the learned Single Judge, in allowing the amendment cannot be said to be arbitrary or perverse or taken in ignorance of settled law. Therefore, we should not upset the view taken by him.

15.

For the reasons given above, we find no ground to interfere with the impugned order. The Appeal is hereby dismissed.

V.K. JAIN, J

VIKRAMAJIT SEN,J

JULY 17, 2009 'sn/acm'

* IN THE HIGH COURT OF DELHI AT NEW DELHI + FAO(OS) 256/2009 & CMs 8721-23/2009 Reserved on: July 7, 2009. % Pronounced on: July 17, 2009. NEENA KHANNA & ANR. ..... Appellant Through Mr.A.S.Chandhiok, Sr.Advocate with Mr. Shine Joy & Ms. Urvashi Basak, Advocates. versus PEEPEE PUBLISHERS & DISTRIBUTORS PVT LTD...... Respondent Through Mr. Jagdish Sagar, Advocate. CORAM: HON'BLE MR. JUSTICE VIKRAMAJIT SEN HON'BLE MR. JUSTICE V.K. JAIN 1. Whether Reporters of Local newspapers 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 in the Digest? yes V.K.Jain, J. This is an Appeal against the Order dated 8.5.2009, whereby the learned Single Judge allowed application of the Plaintiff/Respondent under Order VI Rule 17 of Code of Civil Procedure, for amendment of Plaint. 2. The case set up by the Plaintiff/Respondent No.1 in the original Plaint is that the Appellant/Defendant No.1, who is a Professor of Dermatology and Venereology in All India Institute of Medical Sciences, is the author of the book titled "Synopsis of Dermatology and Sexually Transmitted Diseases", which was published by it in the year 2005, followed by re-prints in the year 2006 and 2007. Before publishing the book, the Plaintiff/Respondent No.1 entered into an agreement with the Appellant/Defendant No.1 whereby copyrights relating to publishing of the book were assigned to the plaintiff/respondent No.1. It is alleged that vide letter dated 28.3.2007, the Appellant/Defendant No.1 withdrew publishing right from the Plaintiff/Respondent No.1, despite earlier assignment of copyright to it. The Plaintiff sought injunction against the Appellant/Defendant No.1 entering into Agreement which would take away its copyright in the book, and injunction restraining defendant No.2/respondent No.2 from publishing the said book. It also sought damages amounting to Rs.20,01,000/-, besides seeking order for accounts and delivery up for any infringing copies of the said book and all materials involved in infringing such as drawings, papers, print-outs, labels etc. 3. The Appellant/Defendant No.1 filed Written Statement contesting the Suit. It was alleged in the Written Statement that since the Appellant/Defendant No.1 was not satisfied with the Plaintiff/Respondent No.1, she decided against any further publication of her works by it and withdrew the subject work from it, with effect from 1.4.2007, thereby, terminating the agreement dated 25.8.2003. Following the said withdrawal, the Appellant/Defendant No.1 assigned all copyrights in the said book to Defendant No.2, which published a second edition of the work on 8.10.2007, after announcing its publication, in advance, on 1.10.2007. According to the Appellant/Defendant No.1, the Plaintiff/Respondent No.1 was left only with the limited right to sell the unsold stock as on 31.3.2007. Thus, according to her, no copyright in the book in question vests in the Plaintiff/Respondent No.1. 4. Vide application dated 8.4.2008, under Order VI Rule 17 of Code of Civil Procedure, the Plaintiff claimed that when the book was under preparation for its first publication, it had supplied a number of line drawings, which were utilized in the book by the Appellant/Defendant No.1. Those drawings were prepared on Plaintiff"s computers, by its employee Mr.Avdesh Kumar Maurya, and the Plaintiff/Respondent No.1 is the first owner of copyrights therein, under Section 17 of the Copyright Act. According to Plaintiff, it did not mention this fact in the original Plaint since it took it for granted that those drawings would not be re-utilized in the new edition of the book, and the Author in any case was expected to make some changes in the illustrations in the second edition of the book. However, when the Plaintiff inspected the book in detail, after it was filed along with the Written Statement, it found that the Appellant/Defendant No.1 had retained/re-utilized the illustrations which we