Periyar Self Respect Propaganda Institution vs Periyar Dravidar Kazhagam and Another

T. Mathivanan, J.—This judges summons has been preferred by the applicant/Plaintiff under Order 14 Rule 18 of the Original Side Rules

r/w Order 6 Rule 17 and 18 of Code of Civil Procedure, to amend the plaint and prayer in the suit in CS. No. 814 of 2008 in the following

manner;

by adding paragraphs 11 to 16 to the original plaint.

by re-numbering the paragraphs 11 to 23 as 17 to 29.

by amending the 1st clause of the prayer as follows;

(i) For a permanent injunction restraining the Defendants their men, agents, assignees, executors and any other person or persons claiming through

them, from in any manner infringing the copyright of the Plaintiff relating to the publications in kudiyarasu published from the year 1925 to 1949;

articles, books, publications relating to the writings and speeches of Periyar and other manuscript compilations, printed compilations and

electroninc compilations, made by the Plaintiff relating to the publications in Kudiyarasu.

Instead of

(i) For a permanent injunction restraining the Defendants, their men, agents, assignees or any other person or persons claiming through them from in

any manner infringing the copyrights of the Plaintiff relating to Kudiyarasu and other scripts, books, publications etc.

Heard both sides.

It appears from the averments of the affidavit filed by the applicant/Plaintiff in support of the Judges summons that it has become necessary for

the applicant/Plaintiff to amend the plaint in view of the fact that the Respondents/Defendants had raised certain new facts and new pleadings in

their additional written statement. The suit in CS. No. 814 of 2008 was filed by the applicant/ Plaintiff for permanent injunction and damages for

infringing the copyright of the applicant/Plaintiff by the Respondents/Defendants. It is obvious that an order of interim injunction was passed and

subsequently it was vacated and thereafter the applicant had filed an appeal in OSA. No. 232 of 2009 and the said appeal was also dismissed by

the Division Bench. The arguments advanced on behalf of the Respondent/Defendant during the course of hearing of the appeal in OSA No. 232

of 2009, certain new facts and pleadings were projected. Apart from this the Respondents/Defendants have also raised some new facts in their

respective written statements and this is the only reason which has induced or accelerating the applicant/Plaintiff to come forward with the Judges

summons to amend the Plaintiff as stated above.

Order 6 Rule 17 of CPC contemplates the amendment of pleadings. It reads as follows:

Amendment of pleadings -- The Court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and

on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in

controversy between the parties:

Provided that no application for amendment shall be allowed after the trial has commenced, unless the Court comes to the conclusion that in spite

of due diligence, the party could not have raised the matter before the commencement of trial.

It is therefore clear from the context of Rule 17 that;

(1) The Court at any stage of the proceeding may, allow the party concerned either party to alter or amend his pleadings.

(2) All such amendments shall be made as may be necessary for the purpose of determining the real question in controversy between the parties.

The second part of Rule 17 contemplates that;

(1) After the trial is commenced no application for amendment shall be allowed.

(2) Rule 17 to Order 6 also clarifies that unless and until the above said ingredients are satisfied by a person who is seeking for amendment of his

pleading, he shall not be allowed to do so.

It is obvious that this application is preferred only on the basis of certain new facts which are raised by the Respondents/Defendants in their

additional written statement. On the basis of the averments of the affidavit filed in support of the Judges summons as well as on the basis of the

submissions made on behalf of the applicant/Plaintiff the following questions are arisen;

(1) Whether the proposed amendment in the plaint and the prayer is barred by time?

(2) Whether different causes of action are brought in by way of the proposed amendment?

(3) Whether the Respondents/Defendants would be prejudiced if the application is allowed to amend the plaint?

The learned senior counsel Mr. A. Thigarajan while advancing his arguments has also made reference to paragraph 3 and 10 of the original

plaint. He has also made reference to paragraphs 11 to 13, and pargaraphs 15 and 16 of the proposed amended plaint. With regard to paragraph

No. 13 of proposed amended plaint, the learned senior counsel would submit that Section 19 Sub Clause (ii) of the Copyright Act 1957 was

amended and came in to force from 09.08.1984, i.e., after 32 years of the formation of the trust and that Section 19(2) of the Copyright Act 1957

cannot be put against the Plaintiff retrospectively. He has also added that Section 52(1)(m) refers to reproduction in News Papers, Magazines or

other periodicals on current, economic, social, religious topics, and that the Respondents/Defendants are not reproducing in any news paper etc.,

relating to current affairs and therefore Section 52(1)(m) is not made applicable to the Plaintiff.

On the other hand the learned senior counsel Mr. S. Duraisamy while advancing his arguments on behalf of the Respondents 1 and 2 has laid

emphasis on the proviso to Section 153 of Code of Civil Procedure. Section 153 deals with general power to amend. It contemplates that;

The Court may at any time and on such terms as to costs or otherwise as it may think fit, amend any defect or error in any proceeding in a suit; and

all necessary amendments shall be made for the purpose of determining the real question or issue raised by or depending on such proceeding.

He has also maintained that the proposed amendment has been sought for only for the purpose of giving reply to the additional written statement

filed by the Defendants 1 and 2. He has also maintained that the amendment which is sought for by the Respondents/Defendants must be for real

controversy and since it has been sought for only to give reply only to the additional written statement of the Respondent/Defendant, the request of

the applicant/Plaintiff cannot be allowed as it is not maintainable under the relevant provision i.e.. Order 6 Rule 17 of Code of Civil Procedure.

He has also adverted to in connection with para 11 of the proposed amended plaint. In para 11 of the proposed amended plaint, the

applicant/Plaintiff has stated that Than Thai Periyar himself had specifically reserved his rights in the publication of Kudiyarasu in his writings and

given permission to those who sought permission for publication of his writings and hence the claim of the Defendant''s that Periyar had not

reserved his rights is false. In fact, Than Thai Periyar had given permission to Annaimuthu, Star Publication etc., in which in categorical terms

Periyar himself had given written consent and approval for publication of only those Articles for which permission was sought for. The persons who

got permission from Than Thai Periyar have specifically acknowledged and admitted that they got the permission relating to copyright of those

Articles and writings of Periyar. Therefore, Periyar had claimed copyright to his writings and hence the Defendants have no rights or what so ever

to publish the writings or copies made out of Periyar writings published in Kudiyarasu. The mere fact that the first Defendant had published the

compilations prepared by the Plaintiff, even before the Plaintiff could do it, neither confers any valid right or ownership over the Plaintiffs

compilations on the first Defendant nor does it legalize the illegal means adopted by the first Defendant in obtaining the compilations made by the

Plaintiff.

In this connection the learned senior counsel Mr. S. Duraisamy has submitted that the averments in para 11 of the proposed amended plaint

could not be allowed to incorporate in the original plaint and the applicant/Plaintiff could file a reply statement instead of making amendment in the

original plaint. He has also submitted in the injunction application which was filed by the applicant/Plaintiff, originally an order of status quo was

granted and subsequently, it was not extended. In the later stage the injunction application was dismissed and the order of dismissal was challenged

by the applicant/Plaintiff in original side appeal in OSA No. 232 of 2009 which was also dismissed on 09.06.2010.

The learned senior counsel for the Respondents 1 and 2 has also made reference to paragraph No. 19, 20, 23, 24, 26 to 28, 30, 31, 33 and

36 of the order passed by the Hon''ble Division Bench of this Court dated 09.06.2010. The last three lines of paragraph No. 24 of the above said

order reads as follows:

Therefore, any right based on proviso (a) to Section 17 of the Copyright Act 1957 was either claimed or proved even prima face before the

learned single judge

The learned senior counsel Mr. A. Thiagarajan appearing for the applicant/Plaintiff has submitted that the order of Hon''ble Division Bench

would not come in the way of the suit and that the said order would not be a bar in making amendment in the original plaint. He has also submitted

that any order passed in an interim application will not be a bar in making amendment in the original plaint.

In support of his arguments, the learned senior counsel Mr. A. Thiagarajan has placed reliance upon the following decisions;

(1) Shree Chamundi Mopeds Ltd. Vs. Church of South India Trust Association CSI Cinod Secretariat, Madras, .

(2) Nitco Tiles Ltd. v. Gujarat Ceramic Floor Tiles Manufacturing Association and Ors., (2005) 12 SCC 454.

(3) Arjun Singh Vs. Mohindra Kumar and Others, .

In the first decision i.e., Shree Chamundi Mopeds Ltd. Vs. Church of South India Trust Association CSI Cinod Secretariat, Madras, a petition

for winding up filed u/s 433 of Companies Act 1956 by the Respondent whose premises taken on rent by the Appellant company? During the

pendency of the petition, proceedings initiated by the company u/s 15 and 16 was terminated by the board. Companies appeal u/s 25 was

dismissed by the appellate authority. A writ petition was filed by the company before the High Court challenging the order of the appellate

authority. The High Court had passed an interim order staying operation of the Appellant authority and held that, effect of the stay order was not to

revive the appeal which had been dismissed and as such no proceedings were pending before the board or appellate authority when later High

Court passed order of winding up of the company. Hence, Section 22(1) of the Industrial Companies (Special Provisions) Act 1985 is not

attracted.

In Nitco Tiles Ltd''s Case ((2005) 12 SCC 454) the full Court of Hon''ble Supreme Court has observed that;

Orders in Interlocutory Application, proceedings do not conclude the matter on merits

On the other hand the learned senior counsel Mr. S. Duraisamy appearing for Respondents 1 and 2, in support of his argument has placed

reliance upon the decision in Modi Spinning and Weaving Mills Co. Ltd. and Another Vs. Ladha Ram and Co., . On considering the submissions

of both sides, the Hon''ble Supreme Court has held that;

by means of amendment, the Defendants wanted to introduce an entirely different case and if such amendments were permitted, it will prejudice the

other side.

It is also observed that, the Defendants cannot be allowed to change completely the case made in paragraphs 25 and 26 of the written statement

and substitute an entirely different and new case. Hence the Hon''ble Supreme Court has concluded that the application filed by the Defendants

was liable to be rejected.

As adumbrated supra, the Respondents/Defendants 1 and 2 were permitted to file their additional, written statement and accordingly, they

have also filed their additional written statements on 30.07.2010 and 04.08.2010 respectively. It is obvious to note here that the applicant/Plaintiff

has fairly admitted in his affidavit filed in support of the Judges summons that he is filing the application to amend the plaint in view of the fact that

the Defendant''s have raised certain new facts and new pleadings in their respective additional written Statements. As rightly argued by the learned

senior counsel Mr. S. Duraisamy instead of amending the plaint, the applicant/Plaintiff can very well file the reply statement. It is pertinent to note

here that the applicant/Plaintiff has proposed to add paragraph 11 to 16 to the original plaint and also to renumber the paragraph 11 to 23 as

paragraph No. 17 to 29. Besides this the applicant/Plaintiff has also proposed to amend the first clause of the prayer as detailed above. On careful

perusal of the averments of the affidavit, and the proposed amended plaint as well as the submissions made on behalf of both sides, this Court is of

considered view that at this stage this petition for seeking amendment in the original plaint cannot be allowed.

It is apparent that the applicant/Plaintiff has filed this suit in CS. No. 814 of 2008 against the Respondents/Defendants;

(1) For a permanent injunction restraining the Defendants, their men, agents, assignees or any other person or persons claiming through them from

in any manner infringing the copyrights of the Plaintiff relating to Kudiyarasu and other scripts, books, publications etc.

(2) Award damages of Rs. 15,00,000/-

Along with the suit the Plaintiff has filed an application in O.A. No. 940 of 2008, for an ad-interim injunction. It is also important to note here that

the application in OA. No. 940 of 2010 was dismissed on 27.07.2009 with an observation that the applicant/Plaintiff did not have any right of

copyright in respect of writings of Than Thai Periyar in ''Kudiyarasu''. Being aggrieved by the said order an appeal was preferred by the

applicant/Plaintiff in OSA. No. 232 of 2009. After hearing both sides, the Hon''ble Division Bench has dismissed the OSA No. 232 of 2009 on

09.06.2010 confirming the finding of the Learned Single Judge holding further that after 25 years of the death of E.V. Ramaswamy, his writing

become the public domain and no one can claim copy rights.

It is also obvious to note here that against the order of the Hon''ble Division Bench dated 09.06.2010, the applicant/Plaintiff has filed a

Petitioner before the Supreme Court in Special Leave to Appeal (Civil) No. 32092 of 2010 and the same was also dismissed on 26.11.2010 by

their Lordship Mr. Dalveer Bhandari and Mr. Justice Deepak Verma. It is clear that the finding of the Division Bench of this Court in OSA No.

232 of 2009 holding that the writings of Periyar E.V. Ramasamy has become public domain after 25 years of his death, has become final and

confirmed by the Supreme Court of India.

Under this circumstances the application filed by the applicant/Plaintiff to amend the plaint and the prayer cannot be considered for the simple

reason that the applicant/Plaintiff has come forward with this application to amend the plaint on the basis of certain new facts and pleadings raised

by the Respondents/Defendants in their respective statements.

In Mrs. Vandana S.P. Salgaonkar Vs. Bank of India and Another, a petition was filed by the Defendant seeking amendment in their written

statement to deny acknowledgement of loan made in the original written statement. On considering the related facts and circumstances the Learned

Single Judge of Bombay High Court has held that ""amendment seeking to deny acknowledgement of loan made in original written statement shows

the mala fide intention of the Petitioner and therefore the application was rejected.

It appears that the suit in CS. No. 814 of 2008 has been instituted on 27.08.2008 and after the filing of written statement as well as the

additional written statement both the parties have filed their draft issues and the draft issues are yet to be formulated. Under this circumstance the

applicant has come forward seeking amendment in the plaint. In paragraph 5 of this order the following three questions have been formulated on

the basis of the averments of the affidavit of the applicant/Plaintiff.

(1) Whether the proposed amendment in the plaint and the prayer is barred by time?

(2) Whether different causes of action are brought in by way of the proposed amendment?

(3) Whether the Respondents/Defendants would be prejudiced if the application is allowed to amend the plaint?

In so far as the first question is concerned it is answered in the negative form because the facts for which the plaint is sought to amended are all

alone within the knowledge of the applicant/Plaintiff. Hence the amendments which are sought to be made at the belated stage cannot be allowed

as it may change the nature of the defence of the Respondent/Defendant.

In Sant Ram Agarwal Vs. Civil Judge, Mohanlal Ganj, Lucknow and others, . It is observed that;

Amendment should not be refused on technical ground. It is the discretion of the Court before whom the application for amendment comes up.

Rules of procedure are intended to be a handmaid to the administration of the justice, parties should not be refused just relief merely because of

some mistake, negligence, inadvertence or even infraction of the rules of procedure. The Court always give leave to amend the pleading of the

party unless it is satisfied that the party applying was acting mala fide or that by his blunder he has cause injury to his opponent which may not be

compensated by an order of costs. The proposed amendment even if belated may be allowed if it can be made without injustice to other side.

However, a party should not be allowed by means of an amendment to set up a new cause of action particularly when a suit on the new case or

cause of action is barred by time.

To answer for the second question this Court is of the view that since the proposed amendments are constructed only on the basis of the

pleadings set forth by the Respondent/Defendant in their written statement, probably it may bring in different cause of action and further to answer

the third question this Court is of the considered view that definitely the proposed amendment would seriously affect the rights of the

Respondents/Defendants.

As rightly submitted by the learned senior counsel Mr. S. Duraisamy appearing for the Respondents/Defendants, the applicant/Plaintiff can very

well file a reply statement instead of seeking amendment in the original plaint.

With this observation the petition is dismissed.