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2009 DIGILAW 397 (KAR)

SURESH KUMAR M. JAIN v. R. RATHAN ROY

2009-06-12

H.G.RAMESH

body2009
JUDGMENT This appeal by the plaintiff is directed against an interlocutory order dated 20-12-2008 passed by the Trial Court - the Court of the XVIII Additional City Civil Judge, Bangalore, in the suit in O.S. No. 7342 of 2008 rejecting his application-LA. No. 1 filed under Order 39, Rules 1 and 2 of the Civil Procedure Code, 1908 for grant of an ad interim order of temporary injunction to restrain the defendant from producing, distributing and marketing the DVDs and VCDs of the movies mentioned in the plaint schedule. 2. I have heard the learned Counsel appearing for the parties and perused the impugned order. Learned Counsel appearing for the appellant plaintiff submits that there is a serious procedural irregularity in the proceeding before the Trial Court inasmuch as the defendant namely R. Rathan Roy did not appear before the Trial Court but the application-LA. No. 1 was resisted by his brother namely R. Deepak Roy and no relief was sought against him. Learned Counsel further submits that even though R. Deepak Roy did not get himself impleaded in the suit, he was permitted to be represented by an Advocate. He submits that the Trial Court ought not to have permitted the Counsel to appear on behalf of R. Deepak Roy. 3. Learned Counsel appearing for the respondent defendant submits that video rights of the 14 Kannada movies mentioned in the plaint schedule, which is claimed by the plaintiff, have been acquired by M/s. Ganesha Video and it is owned by the said R. Deepak Roy. Hence, he submits that R. Deepak Roy is a necessary party to the suit. 4. Having regard to the fact that R. Deepak Roy was not a party to the suit, in my opinion, the Trial Court ought not to have permitted R. Deepak Roy to appear in the matter. However, it was certainly open to him to come on record in the manner known to law, if he claims video rights relating to the movies in question. Accordingly, the impugned order is liable to be set aside and the matter requires to be reconsidered by the Trial Court in accordance with law. 5. At this stage, the learned Counsel appearing for the appellant plaintiff fairly submits that the plaintiff has no objection to implead R. Deepak Roy as defendant 2 in the suit. Accordingly, the impugned order is liable to be set aside and the matter requires to be reconsidered by the Trial Court in accordance with law. 5. At this stage, the learned Counsel appearing for the appellant plaintiff fairly submits that the plaintiff has no objection to implead R. Deepak Roy as defendant 2 in the suit. He seeks permission to implead R. Deepak Roy as defendant 2 in the suit. He is permitted to do so. 6. On the facts of the case, I deem it appropriate to stay the order of temporary injunction granted by the Trial Court on 5-11-2008 till the disposal of I.A. No. 1. Learned Counsel appearing for the appellant submits that the Trial Court may be directed to dispose of I.A. No. 1 within three months. 7. In view of the above, I make the following order: (i) the impugned order is set aside; the matter is remitted to the Trial Court for reconsideration in accordance with law after affording an opportunity of hearing to both sides; (ii) the plaintiff shall implead R. Deepak Roy as defendant 2 in the suit arid to amend the plaint accordingly; (iii) the Trial Court shall dispose of LA. No. 1 expeditiously and in any event within three months from the date of receipt/production of a copy of this judgment; till the disposal of LA. No.1, the ex parte order of temporary injunction granted by the Trial Court on 5-11-2008 shall stand stayed. As the appeal is finally disposed of, no order need be passed on Misc. Civil No. 1194 of 2009 filed for an interim order of temporary injunction and hence it stands disposed of accordingly. Appeal disposed of.