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2009 DIGILAW 779 (DEL)

CHHAYA INDUSTRIES v. LUCKNOW SANSTHAN

2009-07-21

P.K.BHASIN

body2009
JUDGMENT P.K. Bhasin, J. (Oral)-Admit. With the consent of the Counsel for the parties this appeal is taken up for final disposal today itself as the point involved is stated to be short. 2. The appellant had filed an application under Section 50 of the Copyright Act, 1957 before the Copyright Board for rectification of the Copyright Register by expunging therefrom entry No. 60580/2002 which was made in respect of label "ULTRA GUIDE" at the instance of respondent No.1 herein. The appellant claimed that the said label was slavish imitation of its label "CHHAYA" which it adopted for detergent washing powder which it was manufacturing since long. That rectification application was resisted by the respondent herein. The parties after completion of pleadings adduced evidence in support their respective stands before the Copyright Board. During the course of final hearing before the Copyright Board an argument was advanced by the Counsel for the respondent herein that there was non-compliance of the provisions of Order 30 of the Code of Civil Procedure inasmuch as the applicant there which was a partnership firm had not disclosed the names of all its partners. The Copyright Board accepted that argument and vide order dated 25th September, 2008 dismissed the application of the appellant herein as being not maintainable without going into the respective contentions of the parties on merits. Feeling aggrieved by that order of dismissal of its application, this appeal was filed under Section 72(2) of the Copyright Act by the appellant. 3. Learned Counsel for the respondent has not opposed this appeal and has submitted that since there was no demand made by the respondent herein before the Copyright Board for disclosure by the petitioner there (appellant herein) of the names of all its partners there was no non-compliance of the provisions of Order 30 Rule 2, CPC. He has also conceded even if any such demand had been made and not complied with by the appellant herein the only consequence could be stay of the proceedings before the Copyright Board. This is also the argument advanced by the Learned Counsel for the appellant. 4. I am also of the view that the appellants petition for rectification could not be dismissed for the reasons given by the Copyright Board. This is also the argument advanced by the Learned Counsel for the appellant. 4. I am also of the view that the appellants petition for rectification could not be dismissed for the reasons given by the Copyright Board. Order 30 Rule 2, CPC, which has been invoked by the learned members of the Copyright Board while dismissing the rectification petition of the appellant herein reads as under: “Disclosure of partners names-(1) Where a suit is instituted by partners in the name of their firm, the plaintiffs or their Pleader shall, on demand in writing by or on behalf of any defendants, forthwith declare in writing the names and places of residence of all the persons constituting the firm on whose behalf the suit is instituted. (2) Where the plaintiffs or their Pleader fail to comply with any demand made under Sub-rule (I), all proceedings in the suit may, upon an application for that purpose, be stated upon such terms as the Court may direct. (3) Where the names of the partners are declared in the manner referred to in Sub-rule (1), the suit shall proceed in the same manner, and the same consequences in all respects shall follow, as if they had been named as plaintiffs in the plaint." 5. Now, in the present case admittedly there was no demand made by the respondent before the Copyright Board to call upon the petitioner to furnish the names of its partners and unless that demand had been made the petitioner was not required to make any such disclosure. Therefore, the impugned order of the Copyright Board cannot be sustained and is liable to be set aside. In view of this conclusion, I need not go into the question whether provisions of Order 30, CPC apply at all to the proceedings before the Copyright Board whenever a partnership firm approaches it under the Copyright Act, as was also the argument advanced by learned Counsel for the appellant. 6. This appeal is accordingly allowed. The order dated 21st September, 2008 of the Copyright Board is set aside and the matter is remanded back with a direction to the Copyright Board to decide the appellants petition in accordance with law on merits. 6. This appeal is accordingly allowed. The order dated 21st September, 2008 of the Copyright Board is set aside and the matter is remanded back with a direction to the Copyright Board to decide the appellants petition in accordance with law on merits. It is, however, clarified that the respondent would be at liberty to make a prayer before the Copyright Board to accept its additional affidavit by way of evidence which according to the appellant was filed on record after completion of the proceedings without any notice to it and if any such request is made the Board shall deal with the same in accordance with law. Appeal allowed.