Google India Pvt. Ltd. vs Tyndale Byscoe and Mallison Society

This revision petition is directed against the order dated 22.07.2014 passed by the learned 2nd Additional District Judge, Srinagar (hereinafter

referred to as ""the trial Court"") whereby the application moved by the petitioner in terms of Order-I Rule 10 read with Section 151 of Code of

Civil Procedure for its deletion from the array of defendants has been dismissed.

The respondent has filed a suit praying for a decree of mandatory injunction against the petitioner for removing the blog

tbmesmission.blogspot.in primarily on the ground that the aforesaid blog containing the offensive and defamatory material against the respondent-

Society is hosted by the petitioner. The respondent has also prayed for a decree of permanent prohibitory injunction seeking to restrain the

petitioner from hosting the aforesaid blog.

On being put on notice, the petitioner who was lone defendant in the suit, instead of filing written statement appears to have filed two

applications, one under Order-VII Rule 11 CPC seeking rejection of the plaint and the other under Order-1 Rule-10 CPC seeking its deletion

from the array of defendant. It further transpires that taking clue from the application moved by the petitioner for rejection of the plaint, the

respondent also moved an application purportedly in terms of Order-1 Rule 10(2) CPC for impleading the Google Inc. as another defendant in the

suit. By virtue of the order impugned the trial Court disposed of two applications, one filed by the petitioner for deletion of its name from the array

of defendant in the suit and the second filed by the respondent for impleading Google Inc. as party defendant. The application moved by the

petitioner has been dismissed, whereas the application moved by the respondent has been allowed. Resultantly, the suit has been directed to

proceed against the petitioner and Google Inc. both. Though, the order impugned does not speak about the disposal of another application filed by

the petitioner under Order-VII Rule 11 CPC but with the dismissal of application of the petitioner for deletion of its name from the array of the suit,

by implication, the application of the petitioner under Order-VII Rule 11 CPC appears to have been decided by the trial Court.

The petitioner has challenged the order impugned primarily on the ground that the petitioner is neither the service provider nor he host of

offending blog, therefore, no cause of action has accrued to the respondent as against the petitioner. Learned counsel for the petitioner urges that

the mere fact that respondent has moved an application for impleading Google Inc. as party defendant in the suit would go a long way to

demonstrate that the respondent has realized its mistake and has now impleaded the Google Inc. Limited as party defendant who actually is host of

the offending blog in question. Learned counsel for the petitioner further submits that though, petitioner is a subsidiary of Google Inc. Limited, yet it

operates independently in various fields and has not hosted the site/blog in question directly or indirectly. He, therefore, submits that the suit being

without any cause of action against the petitioner is not maintainable and the plaint deserves dismissal in terms of Order-VII Rule-11 CPC or the

name of the petitioner needs to be deleted from the array of defendants in the suit in terms of Order-1 Rule-10 CPC. Learned counsel has relied

upon a judgment passed by the High Court of Delhi in CS(OS) No.676 of 2012 titled Blueberry Books and others v. Google India Pvt. Ltd. and

others, decided on 28.11.2013 as also another judgment of the same Court passed in CS(OS) No.3199/2012 titled Sholay Media and

Entertainment Pvt. Ltd. and anr. v. Law and Kenneth and others, decided on 29.04.2013 to demonstrate that the petitioner may be a subsidiary of

the Google Inc. limited but cannot be fastened with the liability for the acts and omission directly committed by the parent company, i.e., Google

Inc. limited. On the analogy of the aforesaid judgments, learned counsel for the petitioner submits that the learned trial Court should have accepted

the plea of the petitioner and allowed the application of the petitioner.

On the other hand, learned counsel for the respondent submits that at the stage when the petitioner has not even filed the written statement,

learned trial Court was right in concluding that in the light of the averments made in the plaint, the petitioner could not be deleted from the array of

defendants.

Considered the submissions made by the learned counsel for the parties and perused the record.

Sub Rule 2 of Rule 10 of Order-I of the Code of Civil Procedure which is relevant in the context of the controversy may be reproduced as

under:-

Suit in name of wrong plaintiff

(1) ..................................

(2) Court may strike out or add parties.- The Court may at any stage of the proceedings, either upon or without the application of either party, and

on such terms as may appear to the Court to be just, order that the name of any party improperly joined, whether as plaintiff or defendant, be

struck out, and that the name of any person who ought to have been joined, whether as plaintiff or defendant, or whose presence before the Court

may be necessary in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the suit, be

added.

From a bare perusal of Rule (supra), it is abundantly clear that the Civil Court is empowered to strike out or add party/parties at any stage of

proceedings. It can do so suo motu or upon an application moved by either party to the suit. If upon consideration it appears to the Court that the

name of the party is improperly added in the suit whether as a plaintiff or defendant, it can strike it out and if it finds that any person ought to have

joined as a party whether as plaintiff or defendant or whose presence before the Court may be necessary to enable the Court to adjudicate upon

and settle all questions involved in the suit effectively and completely, it can direct its impleadment. It is under this provision both the petitioner and

respondent moved their respective applications. As noted above, an application was moved by the petitioner for its deletion from the suit which

was filed at the stage when the petitioner was yet to file its written statement. In a way the application was virtually for seeking rejection of the

plaint as is envisaged under Order-VII Rule-11 (a) CPC. The record, however, reveals that the petitioner had filed a separate application under

Order-VII Rule-11(a) CPC. However, there is nothing on record with regard to its disposal. Though, effect of the order impugned is rejection of

the other application also by implication.

Be that as it may, the fact remains that at the time of consideration of the applications filed by the petitioner and the respondent the only material

available before the trial Court was the plaint filed by the respondent. The respondent in the plaint has specifically pleaded that some unidentified

people have maliciously and nefariously started the blog in question with a view to malign and defame the respondent-Society and that the said

block has been hosted by the petitioner. It is also pleaded that the petitioner being responsible for hosting the aforesaid blog on its

domain/portal/blogs/website and server etc. is liable in law to ensure that the material being put on the blog for consumption is not offensive and

defamatory to anybody. It is also submitted that the petitioner despite being aware that scandalous and defamatory content is being posted on the

offending blog has not intervened, censored and removed the same. Therefore, the respondent has a cause of action to approach the Civil Court

for seeking redressal of its grievance. Going by the averments made in the plaint which may or may not be proved ultimately in the suit, it cannot be

said that the suit is without any cause of action against the respondent.

As is rightly contended by the learned counsel for the respondent that at the stage of considering the application for rejection of plaint or

deletion of party from the array of defendants when even the written statement is yet to be filed, the Court has to look into the averments made in

the plaint and no other material. If from the perusal of the plaint, it appears to the Court that the averments made in the plaint constitute cause of

action against the defendant, it has to dismiss such application. The truth or varsity of the contents of the plaint and the averments made therein

cannot be gone into by the trial court at this stage. The plea of the petitioner that it is not the host of the blog in question, therefore, there could be

no cause of action to sue against the petitioner, cannot be accepted at this stage for the simple reason that whether it is the petitioner or the Google

Inc. Limited responsible for hosting the blog in question, is subject matter of trial in the suit. Who knows, when the Google Inc. files its written

statement in the suit also takes the plea that it is not responsible for hosting the blog in question and the same is in the domain of the petitioner. All

this would be gone into by the Civil Court only when the trial in the case proceeds and the issues raised by the parties are determined. It is now

well settled that a plaint cannot be rejected even on the basis of defence offered by the defendant in its written statement. At this stage, a plaint is

required to be read as a whole to find out whether it discloses cause of action against the defendant or not and what is a cause of action is a

question of fact which has to be gathered on the basis of averments made in the plaint in entirety taking them as correct. ""A cause of action is every

fact, which traversed, it would be necessary for the plaintiff to prove in order to support his right to a judgment of the Court"" [see A.B.C. Laminart

Pvt. Ltd. v. A.P. Agencies, Salem, (1989) 2 SCC 163 and Bloom Dekor Ltd. v. Subhash Himatlal Desai (1994) 6 SCC 322].

In this backdrop of legal position, if the plaint is examined in its entirety it cannot be said that the plaint does not disclose any cause of action

against the petitioner. The reason given by the trial Court for rejection of application of the petitioner for its deletion that the petitioner being

subsidiary of Google Inc. Limited and therefore, cannot be deleted, is though not sustainable but the order impugned for the reasons given above

does not call for interference. This, however, would not mean that at subsequent stage also the petitioner cannot move application seeking its

deletion from the array of defendants when the parties file their written statements and new undisputed facts emerge.

Viewed thus, the order impugned does not call for any interference and therefore, revision petition is dismissed. The dismissal of this revision

petition shall, however, not be construed as a bar for the petitioner to file application seeking its deletion from the array of defendants at a

subsequent stage. There shall be no order as to the costs. Record of the trial court be sent back.