The Indian Performing Right Society Ltd. vs Anil Mehra and Another

Shiv Narayan Dhingra, J.—By this order I shall dispose of an application u/s 10 CPC made by the defendant for staying the present suit since the subject matter of the present suit was substantially the same as the subject matter of a suit pending before Calcutta High Court filed by the defendant before filing of the present suit by the plaintiff. The suit in Calcutta High Court being Civil Suit No. 90/2006 was filed on 10th April, 2006 by the defendant wherein the plaintiff in present suit was arrayed as defendant No. 2. The present suit was filed on 15th April, 2006 i.e. after the suit filed by the defendant in the Calcutta High Court. It is undisputed that parties in the suit are same. The present defendant in the suit before Calcutta High Court had inter alia sought a declaration that plaintiff herein have no copyright in respect of any of the sound recordings being used by the defendant and hence have no right to issue license or claim payment in relation to the sound recordings being broadcasted by the defendants. The defendant also moved an application for interim injunction before the Calcutta High Court which was dismissed by a single Bench of the Calcutta High Court against which an appeal was preferred before the Division Bench. The Division Bench allowed the appeal of the defendant and passed an interim injunction restraining the present plaintiff from taking any action against the present defendant subject to the defendant making a payment of Rs. 600 per middle hour to the present plaintiff. The Division Bench while allowing the interim injunction of the defendant allowed a stay application of the defendant injuncting plaintiff from initiating any proceedings against the defendant vide its order dated 26.9.2008.

The Counsel for the plaintiff submits that the scope of present suit was larger than the scope of the suit at Calcutta and in the present suit the plaintiff has assailed infringement of its copyright and had sought injunction against the defendant and damages from the defendant.

I consider that merely because plaintiff has made an additional prayer of damages that would not change the scope of the suit. It is settled law that a matter in issue does not mean that the entire subject matter of the earlier suit has to be the subject matter of the latter suit. It is sufficient if the decision in the earlier suit operates as res judicata between the parties in respect of the latter suit. In case the Calcutta High Court gives a decision that the plaintiff was not liable to charge any license fee and no copyright existed in favour of the plaintiff in respect of the sound tracks being used by defendant and defendant had liberty to play the sound tracks without license fee, the decision of Calcutta High Court would operate res judicata in this case and the plaintiff would not be even entitled to recover any damages. However, if the decision goes against the defendant the plaintiff would have right to charge license fee from the defendant and the present suit if stayed u/s 10, can be got revived for that purpose. This Court in Sagar Shamsher Jang Bahadur Rana and Another Vs. The Union of India and Others, while dealing with the proposition u/s 10 CPC had observed as under:

The learned Counsel for the plaintiffs contended that the matter in issue in the present suit and the previous suit is not the same and, therefore, Section 10, Code of Civil Procedure, is not applicable. He contends that the words matter in issue used in Section 10 mean, entire subject matter of the subsequent suit and the previous suit must be the same. He further contends that in the previous suit the subject matter was recovery of Rupees 1,10,000/- while in the present suit the subject matter is recovery of Rs. 18 lac. I do not agree with this view of the learned Counsel for the plaintiffs. In my opinion, the words matter in issue in Section 10 of the CPC mean all disputed material questions in the subsequent suit which are directly and substantially in question in the previous suit. It can never be expected that a plaintiff would file a case against the same defendant for the same amount and claiming the same relief. In suits for recovery of rents a landlord can never file two suits claiming rent of the same period and claiming the same amount of rent. In my view, words matter in issue do not mean entire subject matter in issue in the two suits. If the interpretation as put by the learned Counsel for the plaintiffs is accepted, it appears to me that Section 10 of the CPC would become redundant and there would be lot of litigation before the Courts trying the same set of facts again and again. Applying the test of principle of res judicata for the stay of suit, I am of the view that the decision on various points in question in the previous litigation between the parties pending at the stage of appeal, would operate as res judicata in the present suit, and the suit can be disposed of in terms of the findings that may be given in appeal. If the present suit is not stayed, it would result in unnecessary trial of the suit and litigation expenses of the parties. Moreover, there may be possibility of conflicting judgments in the two proceedings.

I, therefore consider that the present suit filed by the plaintiff is liable to be stayed u/s 10 CPC. The application of the defendant is allowed.

The suit is stayed with liberty to the parties to revive the suit after decision of the Calcutta High Court, if necessary.