While Permitting Plaintiff To Withdraw Suit, Court 'Shall' Give Liberty To File Afresh If Conditions Under Order 23 Rule 1(3) CPC Are Met: Madras HC [Read Judgment]

"once the Court satisfies either under clause (a) or (b) of sub-rule (3) [of Rule 1 of Order XXIII CPC], Court, while permitting the plaintiff to withdraw the suit, shall also give the liberty to institute a fresh suit in respect of the subject matter of such suit," the court said.

Background

The order was made by Justice R. Suresh Kumar while allowing a Tamil story writer-cum-Assistant Director, K. P. Selvah, to file a fresh suit for copyright infringement before an appropriate court against a feature film called "Thalapathy 6.3", set to be released under the banner of M/s. AGS Entertainment Pvt., Ltd., directed by Atlee (both Respondents).

Selvah claimed that he had penned a story based on Tamil Nadu State Women Football team and coach in 2017 and for the safeguard purpose, had sent a soft copy of the story to his Gmail address on 01.12.2017. Subsequently, he got the script registered with the title "Kalki" at M/s. South Indian Film Writers' Association, in October, 2018; and it was this script that the Respondents had used to make the aforesaid feature film.

Accordingly, Selvah had approached the Assistant City Civil Court, Chennai, and instituted a suit for copyright infringement. This suit came to be dismissed as withdrawn, for lack of jurisdiction in terms of Section 62 of the Copyright Act, 1957 which expressly provides that in Chennai, a copyright infringement case can be decided only by the Commercial Division of the high court, under the provisions of the Commercial Courts Act. However, Selvah was not granted the liberty to file the suit afresh. Thus, the present revision proceedings under Article 227 of the Constitution were initiated.

Arguments

Before the high court, the Respondents raised two grounds:

1. They contested the maintainability of the revision petition, stating that the Petitioner ought not to have invoked the superintendence power of the high court under Article 227, since there was an alternative appeal remedy available to him, in terms of Section 96 and Section 105(1) of CPC. Reliance was placed on Virudhunagar Hindu Nadargal Dharma Paribalana Sabai v. Tuticorin Educational Society, (2019) 5 CTC 696, wherein the Apex Court had held that availability of an appellate remedy in terms of the provisions of CPC can be construed as a 'near total bar' for the exercise of supervisory jurisdiction under Article 227 of the Constitution of India by High Courts.
2. They submitted that no cause of action had arisen to initiate proceedings for copyright infringement inasmuch as the Respondent had registered the story line of the impugned film, under the name "Vathiyar", in July, 2018, much before the Plaintiff had registered "Kalki".

Findings

While deciding upon the maintainability of the petition, Justice Suresh Kumar said that the impugned order was not a decree within the meaning of Section 2(2) of the CPC, therefore regular appeal under Section 96 was not available or not permissible to be preferred. Similarly, appeal under Section 105 was also not available to the Petitioner and therefore the principle set out in the aforesaid "celebrity Judgment" of the Apex Court, relied upon by the Respondents, could not be made applicable to the facts of the present case.

He explained that a decree means a formal expression of adjudication, where the Court conclusively determines the rights of the parties in any matters in controversy in the suit. However, "On reading of the order passed by the trial Court, which is impugned herein, it cannot be construed that the impugned order is a decree within the meaning of Section 2(2) of CPC," he said.

Coming to the argument that no cause of action had arisen, the court said that while it was admitted position that the Respondents had got their script registered much before the Plaintiff, however, they had not controverted the fact that the Plaintiff had emailed the said script to himself even before the Respondents effected such registration and thus the matter required trial.

"the question of cause of action cannot be decided merely on the basis of these two dates, as the plaintiff has also claimed that, he himself sent the story to his Gmail address on 01.12.2017 and he has filed the said Gmail copy also as Document No.2 along with the plaint," the court said.

Accordingly, both the arguments raised by the Respondents were declined.

Lastly deciding whether the trial Court, while allowing a Petitioner to withdraw the suit, can deny the permission to institute a suit on the same subject matter before an appropriate forum, the court explained that the Petitioner's case fell within the purview of Sub-rule (3) of Rule 1 Order XXIII of CPC, which speaks about withdrawal of suit on two grounds:

1. Clause (a) makes it clear that, if the court is satisfied that, the suit was failed by reason of some formal defect, court may grant the plaintiff permission to withdraw from such suit with liberty to institute a fresh suit.
2. Clause (b) of sub-rule (3) enables the Court, if it is satisfied that, there are sufficient grounds for allowing the plaintiff to institute a fresh suit for the subject matter, to grant the plaintiff permission to withdraw from such suit with liberty to institute a fresh suit in respect of subject matter of such suit.

Thus it was held,

"once the Court satisfies either under clause (a) or (b) of sub-rule (3), Court, while permitting the plaintiff to withdraw the suit, shall also give the liberty to institute a fresh suit in respect of the subject matter of such suit."

In fact, the court remarked that when the lower court admittedly did not have jurisdiction to entertain the claim, it should have returned the plaint under Order VII Rule 10 of CPC. It said,

"When that being so, the trial Court also, instead of waiting for the plaintiff to file an application under Order XXIII Rule (1), could have invoked Order VII Rule 10 of CPC to return the plaint to be presented to the Court, in which the suit should have been instituted."

With these observations, the court set aside the part of the impugned order disallowing the Petitioner the liberty to file the fresh suit and remarked,

"Failure to give such a liberty & rejection of the plea of the plaintiff, in the impugned order, is nothing but an erroneous exercise of power by the trial court."

The Petitioner was represented by Advocate R. Sathish Kumar and the Respondents by Advocate P. V. Balasubramanian for M/s. BFS Legal and Advocate Srinath Sridevan.

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