The Metro Railway vs Phonographic Performance Limited

Harish Tandon, J.—In course of the hearing of the instant revisional application, two legal points which arise for consideration; firstly, whether proviso to Order 6, Rule 17 of the Code of Civil Procedure can be extended in a situation where the amendment becomes necessitated by subsequent events; secondly, a fresh application on the selfsame set of facts is maintainable if an earlier application is dismissed for non-appearance of the said party but in presence of other party.

In a suit for declaration of ownership of copyright in respect of sound recording and infringement, an application for amendment was taken out by the plaintiff seeking to delete the averments made in several paragraphs of the plaint and also to mould the reliefs claimed therein. Admittedly, the said application was taken out after the suit was posted for peremptory hearing.

By the proposed amendment, the plaintiff/opposite party intended to bring certain facts which emanates after the introduction of an amendment having brought in the year 2012 whereby and where under the plaintiff was empowered to act in a capacity of a performing rights body and its existence as a body association in the nature of assignors or licensors continued undisturbed.

In other words, the plaintiff intended to spouse the cause of his assignors or licensors as an owner of the copyright relating to numerous sound recording both in film and non film genres in different languages. Though such statutory amendment was brought prior to the commencement of trial yet the right emanates therefrom during the trial.

A little history behind the incorporation of proviso to Order 6, Rule 17 of the Code of Civil Procedure is necessary to address the issues involved in the instant revisional application.

Order 6, Rule 17 of the Code as it stood after the first amendment brought in the year 1976 where the party may amend or alter the pleading at any stage of the suit provided the same is necessary for the purpose of determination of real questions in controversy between the parties.

The Malimath Committee constituted for revisiting the procedural aspect initially found that the provision contained under Order 6, Rule 17 of the Code is one of the root cause in delayed disposal of the suits. An amendment was brought in the year 1999 on the recommendation of the said report deleting the provision of Order 6, Rule 17 . The consequences thereof was that once the pleading is filed by any of the parties to the suit, such pleading would continue till the disposal thereof and the parties may not be allowed to alter and/or amend the same. There was an objection from every corner of the country over the deletion of the said provision which led to rethinking and ultimately the provision of Order 6, Rule 17 of the Code was restored with added proviso to check and restrict the frequent amendments being taken out after the suit has reached the stage of trial. The enabling provision still remained as it stood prior to 2002 amendment providing that the party may alter or amend the pleading at any stage of the suit subject, however, that the same is necessary for the purpose of determination of disputes. A party who was sleeping in slumber was not permitted to wake up after the commencement of trial, by taking out an application for amendment simply on the ground that it is necessary for the purpose of determination of disputes. A duty is cast on the said party to satisfy the Court that despite due diligence, he could not take out an application for amendment before the commencement of trial. The proviso did not take away the powers of the Court to permit any of the party to alter and/or amend his pleading in absolute terms. It puts certain restrictions and the requirement of satisfaction over the due diligence if the amendment is sought after the commencement of trial was felt. It is a salutary principles of interpretation of statute that proviso controls, guides and restricts the enabling provision to the extent provided therein. The only exception which can be seen is when an amendment becomes necessitated because of the subsequent events, yet in such situation if the party is found to be lethargic and/or not so prompt in taking out an application for amendment of the pleading, the Court may dismiss such application by providing proper reasons.

In the instant case, admittedly, after the commencement of trial the right accrues to the plaintiff/opposite party, an application was taken out within the reasonable period of time seeking amendment of the plaint.

This Court, therefore, does not find that the proviso has any manner of applicability in the instant case so as to throw the applying party out of Court denying the pleading to be amended.

The second point urged assumes greater importance in adjudication of the matter in this revisional application. Though an application for amendment was taken out promptly after the right has accrued to the plaintiff /opposite party but such application was allowed to be dismissed for default on 27th November 2015. The order of dismissal was passed in presence of the defendant/petitioner, which would be evident from the observations recorded therein. Instead of filing an application for recalling the said order or restoring the application for amendment, the plaintiff/opposite party filed a fresh application on the selfsame set of facts which is allowed by the Trial Court in the impugned order. At the initial stage of the hearing, it was pointed out whether a fresh application for amendment is maintainable and/or entertain able by the Court when an identical application is dismissed for default at an earlier point of time in presence of the defendant. What was sought to be contended whether the principle enshrined under Order 9, Rule 9 of the Code of Civil Procedure shall apply in such eventuality.

Mr. Bose learned advocate for the opposite party vehemently submits that neither Order 9, Rule 9 nor Section 141 of the Code applies to an interlocutory application filed in the suit. According to him, Section 141 provides the applicability of the provisions of the suit to a proceeding, which is of original nature. The explanation, however, makes the position more clear where the proceeding under Order 9 of the Code was brought within the purview of said Section. After meaningful reading of the provisions contained under Section 141 of the Code, it appears that the provisions relating to suit is applicable so far as may be applicable to other proceeding.

The proceeding which springs and/or arises from the suit may not be brought within the purview of said provision as it has an applicability to an original proceeding unconnected with the pending suit. Though the said provision originates from an application yet it partakes the character of a plaint and, therefore, the provisions relating to suit is made applicable to such proceeding as well. The procedural is hand made of justice. Even if the provision does not apply in strict sense at the interlocutory stage of the proceeding yet the principles and the rational of such provisions can be extended in such situation. Any other view may invite anomalous situation where a party whose application was dismissed for default in presence of the other side shall be entitled to go on filing the application and the order of the dismissal would be simply on the paper having no consequential effect.

This Court does not find any fetter in extending the principles enshrined under Order 9, Rule 9 of the Code to an interlocutory stage. Admittedly, the application for amendment was dismissed for default in presence of the defendant/petitioner. If the suit would have been dismissed, under the similar circumstances, there is an absolute bar under Order 9, Rule 9 of the Code in institution of the fresh suit for the selfsame reliefs based on same cause of action. Taking a similar analogy if the application is dismissed for default in presence of the defendant/petitioner, why such principles cannot be extended or made applicable in such situation. In my opinion it must suffer the same consequence.

This Court, therefore, finds that the subsequent application which is replica of the earlier application is not maintainable and, therefore, the decision of the Trial Court cannot be sustained.

The order impugned is thus set aside.

The revisional application is allowed without any costs.

Urgent photostat certified copy of this order, if applied for, be given to the parties within three days from the date of their respective applications.