JUDGMENT Surinder Singh, J. This is an application under Order 7 Rule 11 read with Section 151 of the Code of Civil Procedure, preferred by defendants No.3 and 4, for rejecting the plaint, for want of non-disclosure of cause of action muchless an enforceable one, which has been resisted by the plaintiff. A CASE OF THE PLAINTIFF. 2. In short, the facts giving rise to the present application can be stated thus. The plaintiff filed the present suit against the defendants for infringement of Copyrights and non-acknowledgement of his Moral Rights being author of “PROTOCOL” being Guide of defendant No.3 thus seeking damages and permanent injunction. (ii) As a matter of fact, the plaintiff is a dental surgeon in the State Dental College and claims that he is well known Oral and Maxillofacial Surgeon (O&MS). He garnered wide recognition and respect in his field and had also presented papers in the national and international conferences. In April-May, 2007, he being Professor and Head of the Department of O&MS in State Dental Government College and was also performing surgeries on Indoor patients. Besides this, he was required to act as a Guide to the students pursuing Master of Dental Surgery (O&MS). Thus, he was instrumental in providing topics, data and all other co-related information for the submission of compulsory dissertation by the students pursuing such courses. He was also appointed to act as Guide for defendant No.3 Dr. Prem Lata, thus in order to present a unique dissertation, he provided certain data and patient details of operations conducted by him between June, 2007 to June, 2009. Besides this, he also offered opportunity to assist and observe the plaintiff during numerous complicated surgeries being conducted by him on various patients. (iii) That as per norms of submitting dissertation, defendant No.3 alongwith the plaintiff prepared “PROTOCOL” for approval of the dissertation for the degree of M.D.S. (O&MS), which was a blueprint on which the final dissertation was to be and is based. It included the draft presentation for final dissertation as well as the manner in which the research and observations of the surgeries was to be presented. Accordingly, “PROTOCOL” was submitted to the defendant-University. It included the draft presentation for final dissertation as well as the manner in which the research and observations of the surgeries was to be presented. Accordingly, “PROTOCOL” was submitted to the defendant-University. (iv) It is further averred that the photographs so taken during such surgeries, were not a part and parcel of his duties as a Dental Surgeon, but it was a separate artistic work in his own right of which he is the sole owner and author of the copyright in the said photographs. The photographs and the opportunity to observe the surgeries was provided by him to defendant No.3 in his capacity as Guide and teacher, but in between he had to relieve himself from the position of Guide of defendant No.3, but defendant No.3 had retained all data, photographs, notes etc. of the surgeries performed by the plaintiff which was provided to her. (v) In the month of September /October, 2010, the plaintiff came to know that despite his removal as a Guide defendant No.3 submitted final dissertation. On its inspection by him, he was shocked to note that it was completely based on the “PROTCOL” prepared by him, which reveals that the same is in effect a derivative work as defined under the Indian Copyright Act of the “PROTOCOL”. Thus the dissertation was formulated/created by him with defendant No.3 during the time of creation of the “PROTOCOL” and the final dissertation is nothing but the same “PROTOCOL” albeit with a few cosmetic changes and the same, perhaps, were made by defendant No.3 to surreptitiously or clandestinely cover up her theft of the copyrighted work knowing fully well that the photographs and other material belonged to plaintiff, whereas defendant No.3 in her dissertation, mentioned that the work for the same was undertaken under the guidance of defendant No.4 whereas he never conducted any such surgeries as mentioned in the dissertation. (vi) He further submitted that two of the surgeries were performed beyond the period as mentioned in the dissertation. Despite knowing fully that the photographs were created by the plaintiff and the same belonged to him, defendant No.3 did not recognize or acknowledge the authorship of the plaintiff with respect to the manner of presentation of the final dissertation as well as the photographs taken by him during such surgeries. Despite knowing fully that the photographs were created by the plaintiff and the same belonged to him, defendant No.3 did not recognize or acknowledge the authorship of the plaintiff with respect to the manner of presentation of the final dissertation as well as the photographs taken by him during such surgeries. (vii) It is also his case that the work of defendant No.3 was analogous to the work of an Apprentice and thus as per the extant provisions of the Copyright law, work of an Apprentice relates back to the teacher and the copyright in such work vests with the teacher alone. The plaintiff pleaded collusion between defendants No. 3 and 4. Thus, according to him, it is infringement of the copyright and the moral rights. 3. On the above allegations, the plaintiff pleaded cause of action in the following manner: “33. That the cause of action for the present suit first arose in September, 2010 when the plaintiff became aware of the thesis containing infringing work being submitted by defendant No.3. That the cause of action further arose on October, 2010 when the plaintiff caused a legal notice to be served upon defendant No.1 bringing the above said infringing activities to its notices. That the cause of action further arose when the defendant No.1 replied to the notice vide reply dated November 20, 2010 informing the plaintiff of initiating an inquiry qua the result of the said inquiry. Hence the cause of action is a continuing one and continues till date.” 4. The plaintiff sought decree as per para 40 of his plaint. B DEFENDANTS’ PLEA. 5. The suit was resisted and contested by the defendants. All the defendants have denied the enforceable cause of action. They disputed the existence of legal and valid copyright in favour of the plaintiff qua the work in question. Alternatively averred that assuming without admitting that even there exists such a right, then the acts alleged in the plaint would not amount to an infringement of a copyright under the Act. The defendants also pleaded that most of the averments made in the plaint are misleading and denied. It is specifically submitted that the Post Graduate Course (MDS-Masters in Dental Surgery) was introduced for the first time in the HP Government Dental College in the year 2006. The defendants also pleaded that most of the averments made in the plaint are misleading and denied. It is specifically submitted that the Post Graduate Course (MDS-Masters in Dental Surgery) was introduced for the first time in the HP Government Dental College in the year 2006. Defendant No.3 on the basis of competitive examination got selected in the branch of O&MS of the College in the year 2007. At that time there was only one Professor, i.e., the plaintiff, who was also the Head of the Department and one Associate Professor. Besides these, two Post Graduate students of 2006 batch were there. Under the relevant rules, only who is a Professor could be the Guide of a MDS student. As such there was no option with the students but to have the plaintiff as their guide. Accordingly two PG students of 2006 batch and two PG students of 2007 batch including defendant No.3 had to have the plaintiff as their guide. Thus, there was no question of plaintiff consenting to be the Guide of defendant No.3. (ii) It is further pleaded that the duty of the Guide is to provide the topics and the data concerning the topic and all other relevant information pertaining to the data and the topic to his students in order to help the student to have his PG degree. Plaintiff has not done any charity work while agreeing to help defendant No.3 in her PG studies. It was his duty to render help to her. The plaintiff had to discharge his duties as a Guide and the defendant aforesaid was bound to pursue her degree under him as a student. (iii) Defendant No.3 stated that the “PROTOCOL” was prepared by her under the plaintiff, who was her Guide at that time, but denied that source of entire data for preparing the “PROTOCOL” was the plaintiff although it was otherwise his duty to provide the same. But according to her, she had collected the data herself. Preoperative and post-operative data of patients connected with the topic was taken by the said defendant. The photographs were taken by her alongwith other students of the Dental College connected with the topic assigned to her and were rightly and lawfully used by her. But according to her, she had collected the data herself. Preoperative and post-operative data of patients connected with the topic was taken by the said defendant. The photographs were taken by her alongwith other students of the Dental College connected with the topic assigned to her and were rightly and lawfully used by her. She denied that the plaintiff was useful and helpful teacher, but she alleged that he always looked for ways and means to harass her to pressurize her into succumbing to his lust. His focus was never aimed at guiding defendant No.3 but to harass and humiliate her. Though in terms of the applicable rules and conventions, she has been compelled to give credit of her “PROTOCOL” to the plaintiff as her guide, but he in fact did not deserve this credit as she never received any help, suggestion, encouragement, anything worth the name of guidance from him. Further that the plaintiff indulged unbecoming acts which resulted into lodging of FIR against him and the plaintiff had been facing trial in the Court and the plaintiff was put under suspension on 18.9.2010. Even the students were compelled to file CWP No.2892 of 2010 inter alia praying for a Guide and to supervise the completing of their PG degree. The Court realizing the gravity of the situation, directed the Dental Council of India to appoint another Guide for defendant No.3 and ultimately defendant No.4 was so appointed when the dissertation was at the final stage and after its completion it was presented to the concerned authorities in terms of the orders passed by this Court as well as by the Director, Medical Education and HP University. (iv) It is also pointed out that, during the year 2008 onwards Mrs. Dr. Ashu Bhardwaj, wife of the plaintiff was the Principal of the State Dental College. The request was made that they be not associated with the final examination of the students, but despite that plaintiff had tried to interfere in the completion of degree. But however, overcoming all the hurdles created by the plaintiff, she was able to complete her degree and now the plaintiff is trying to make her life miserable by continued harassment. (v) It is also denied that data aforesaid was the exclusive property of the plaintiff. The surgeries allegedly conducted by him were not invented by him. But however, overcoming all the hurdles created by the plaintiff, she was able to complete her degree and now the plaintiff is trying to make her life miserable by continued harassment. (v) It is also denied that data aforesaid was the exclusive property of the plaintiff. The surgeries allegedly conducted by him were not invented by him. He was just following the procedure invented by international surgeons. These surgeries are performed by all Maxillofacial Surgeons all over world. There is nothing patented about them. The entire edifice of the plaint is allegedly misplaced. According to the defendant, it is strange that the students should not use what has been taught by their teachers and further that in this case it was the teacher who indulged in harassing the students as he could not digest that the defendant was able to complete her MDS degree. (vi) The maintainability of the suit alongwith cause of action, both have been disputed. Thus prayed for dismissal of the suit. C REPLICATION. 6. The allegations and the contentions raised in the written statements by the defendants were refuted by the plaintiff by filing replication. According to him, he stands acquitted in the criminal case. Importantly, the plaintiff in replication had retracted from his alleged copyrights over the data etc. and asserted that he had only moral rights over the same and use of this data/protocol created by him, without having been given any credit by defendant No. 2 in her thesis amounts to infringement of his moral rights. 7. On 1.3.2012, though this court had framed issues. The matter thereafter was ordered to be listed for the plaintiff’s evidence, but the present application (OMP NO. 95/2012) under Order 7 Rule 11 read with Section 151 of the Code of Civil Procedure was moved by defendants No.3 and 4, for rejecting the plaint for want of non-disclosure of cause of action, which has been resisted on the same lines as averred in the plaint. Precisely, in reply it is submitted that the photographs as depicted in the final dissertation were taken by the plaintiff before, during and after the surgeries mentioned in the dissertation. The same do not fall within the purview of the duties of the plaintiff in the hospital. Precisely, in reply it is submitted that the photographs as depicted in the final dissertation were taken by the plaintiff before, during and after the surgeries mentioned in the dissertation. The same do not fall within the purview of the duties of the plaintiff in the hospital. Rather these are his original artistic work as per the provision of the Indian Copyright Act which solely vests with the plaintiff and sought relief as claimed in his reply to this application. Though, the plaintiff did not claim the ownership of the data material, but he claimed its right over the manner created protocol and material and sought damages for use of data without acknowledging him as co-author. 8. Now, the point for consideration is whether the plaint deserves its rejection for not disclosing “cause of action”. 9. I have heard learned Counsel for the parties and have carefully examined the record. 10. At the very outset, it shall be useful to refer to the relevant provisions covering rejection of the pliant in the Code of Civil Procedure in short “the Code”. 11. 9. I have heard learned Counsel for the parties and have carefully examined the record. 10. At the very outset, it shall be useful to refer to the relevant provisions covering rejection of the pliant in the Code of Civil Procedure in short “the Code”. 11. Order 7 Rule 11 of the Code reads as under:- “Rejection of plaint._ The plaint shall be rejected in the following cases:- (a) where it does not disclose a cause of action; (b) where the relief claimed is under-valued, and the plaintiff, on being required by the Court to so correct the valuation within a time to be fixed by the Court, fails to do so; (c) where the relief claimed is properly valued, but the plaint is written upon paper insufficiently stamped, and the plaintiff, on being required by the Court to supply the requisite stamp-paper within a time to be fixed by the Court, fails to do so; (d) where the suit appears from the statement in the plaint to be barred by any law; (e) where it is not filed in duplicate; (f) where the plaintiff fails to comply with the provisions of rule 9 [Provided that the time fixed by the Court for the correction of the valuation or supplying of the requisite stamp-papers shall not be extended unless the Court, for reasons to be recorded, is satisfied that the plaintiff was prevented by any cause of an exceptional nature from correcting the valuation or supplying the requisite stamp-papers, as the case may be, within the time fixed by the Court and that refusal to extend such time would cause grave injustice to the plaintiff]” 12. The perusal of the above provisions reveal that where the plaint does not disclose a cause of action, the relief claimed is undervalued and not corrected within time allowed by the Court, insufficiently stamped and not rectified within the time affixed by the Court, barred by any law, failed to enclose the required copies and the plaintiff fails to comply with the provisions of Rule 9, Court has no other option except to reject the same. Further it also makes clear that power under Order 7 Rule 11 of the Code can be exercised at any stage of the suit either before registering the plaint or after the issuance of summons to the defendants or at any time before the conclusion of the trial as held in Saleem Bhai v. State of Maharashtra (2003) 1 SCC 557 . It is also clear that the averments in the written statement are immaterial and it is the duty of the Court to scrutinize the averments/pleas in the plaint alone. In other words, what needs to be looked into in deciding such an application are the averments in the plaint. Pleas taken in the written statement are wholly irrelevant (please see: Raptakos Brett & Co. Ltd. v. Ganesh Property (1998) 7 SCC 184 and Mayar (H.K.) Ltd. v. Vessel MV. Fortune Express (2006) 3 SCC 100 ). The very object of this provision in the Code appears to have been made to shot-down the bogus litigation at the earliest stage. Even the clever drafting which creates illusion of cause of action should be nipped in the bud at the first hearing. 13. Legally, the cause of action is bundle of facts which taken with the law applicable to them gives the plaintiff a right to relief against the defendant. Every fact which is necessary for the plaintiff to prove to enable him to obtain a decree should be set out in clear terms. It is worthwhile to find out the meaning of the word “cause of action”. Cause of action must include some act done by the defendant since in the absence of such an act, no cause of action can possibly accrue as held in A.B.C. Laminart (P) Ltd. v A.P. Agencies (1989) 2 SCC 163 and Bloom Dekor Ltd. v. Subhash Himatlal Desai (1994) 6 SCC 322 . 14. Thus while scrutinizing the plaint and the averments, it is bounden duty of the Court to ascertain the materials for cause of action and it is also mandatory to the plaintiff to get relief, to aver all material facts which are necessary to aver and prove in order to succeed in the suit. 15. The above principle has been reiterated by the apex Court in Church of Christ Charitable Trust and Educational Charitable Society versus Ponniamman Educational Trust (2012) 8 SCC 706 . 16. 15. The above principle has been reiterated by the apex Court in Church of Christ Charitable Trust and Educational Charitable Society versus Ponniamman Educational Trust (2012) 8 SCC 706 . 16. Admittedly, in the instant case, plaintiff being in government service was appointed as guide of defendant Dr. Prem Lata. Later because of some dispute, complaining sexual harassment was removed/discharged as guide and accordingly, the defendant No. 4 was appointed as guide in his place. 17. Shri G.S. Arora, learned counsel for plaintiff argued that the plaintiff claims moral rights being co-author of the dissertation which is a copyright work of “PROTOCOL” and the data and material was also supplied to defendant Dr. Prem Lata by the plaintiff. It was never his intention that said defendant shall not present dissertation. It is further argued that the dissertation is nothing but a derivative work of protocol which is original simplicitor. It is also contended that the said defendant presented her dissertation containing the same manner of presentation as the “PROTOCOL”, without acknowledging the plaintiff as co-author. He also referred to Section 53 of the Copyright Act mentioning that moral rights of the author of the “Copyrightable Work” is required to be declared as such. Although, the plaintiff in replication did not claim the rights over the data and material, but however, seeks damages for not acknowledging that it was provided by him to her. The learned counsel submitted that there has been a cause of action, which is a triable issue and the plaint cannot be shut down at this stage. 18. Contra Shri B.C. Negi, learned counsel for the defendant/University submitted that even if the contention of the plaintiff is admitted at its face value it is not a legally enforceable cause of action to get the relief prayed for, because where there is a fair dealing with the literary, dramatic, musical, artistic work not being computer programme for the purpose of private use, including the research would not be an infringement of a copyright. He also made reference to the ordinance of the University which deals with the parameters under which such degrees are accorded by the University under the Guide; whereas Ms. Jyotsna Rewal Dua learned counsel referred to Section 13 of the Act which contains works in which copyright subsists. He also made reference to the ordinance of the University which deals with the parameters under which such degrees are accorded by the University under the Guide; whereas Ms. Jyotsna Rewal Dua learned counsel referred to Section 13 of the Act which contains works in which copyright subsists. She also referred to clauses (c) and (d) of Section 17 of the Act that in any case, first owner of the copyright is the Government under whom the plaintiff was an employee and further referred to Section 52 which covers certain acts which are not the infringement of “copyright” where under the case of the defendant No.3 stood covered. Thus, she submitted that the plaintiff has no cause of action to seek any legal remedy or the relief as alleged. Further according to her, it is a case of fair dealing with the literary work for its private use, including research, even if the case of the plaintiff is taken to be true as a guide he was bound to help the said defendant. It is also ventilated that writing the “PROTOCOL” is only index of the dissertation. The idea is given in the thesis which is an original work. It is also ventilated that the dissertation being the original work for which the student was bound to take guidance lawfully as the writing of the “PROTOCOL” neither cover his moral right nor infringement of copyright under the Act. Therefore, Section 16 of the Act operates as a bar. 19. After having considered the pleadings as well as the arguments advanced by the parties and legal interpretation of cause of action, I feel that the remedy sought in the suit is legally barred for the reasons to be recorded hereinafter. 20. Section 13 of the Act refers to the word in which the Copyright is subsisted. Sub-section (3) thereof provides where the Copyright shall not subsist, whereas Section 17 of the Act deals with as to who is the first owner of the copyright. 20. Section 13 of the Act refers to the word in which the Copyright is subsisted. Sub-section (3) thereof provides where the Copyright shall not subsist, whereas Section 17 of the Act deals with as to who is the first owner of the copyright. Clauses (c) and (d) reads as under: “(c) in the case of work made in the course of the author’s employment under a contract of service or apprenticeship, to which clause (a) or clause (b) does not apply, the employer shall, in the absence of any agreement to the contrary, be the first owner of the copyright therein; (cc) xxx xxx xxx xxx (d) in the case of a Government work, the Government shall, in the absence of any agreement to the contrary, be the first owner of the copyright therein.” 21. The harmonious reading of both Clauses of Section 17 reveals that if the work is made under a contract of service or apprenticeship to which clause (a) or clause (b) does not apply and there is no agreement to the contract, the employer shall be the first owner of the copyright. (Please also see V.T. Thomas alias Toms and others v. Malayala Manorama Company Limited, AIR 1988 Kerala 291.) 22. Admittedly, the plaintiff while in government service was appointed as a Guide and was legally bound to assist the students in discharge of his official duty and there is no contract to the contrary. Thus, the Government shall be first owner of the copyright, if any, and the plaintiff without the consent and agreement of the Government cannot sue the defendants, pleading the cause of action as aforesaid to seek the remedy prayed for. 23. Further, it is also a case of fair dealing with a literary, dramatic, musical or artistic work it not being a computer programme for the purpose of (i) private use, including research and (ii) criticism or review, whether of that work or of any other work would be an infringement of copyright. The answer is ‘NO’, because, the principle is now well settled that under the guise of a copyright all the doors of research and scholarship and all frontiers of human knowledge cannot be closed through the process of Court. [See Messrs. The answer is ‘NO’, because, the principle is now well settled that under the guise of a copyright all the doors of research and scholarship and all frontiers of human knowledge cannot be closed through the process of Court. [See Messrs. Blackwood and Sons Ltd. and others v. A.N. Parasuraman and others, AIR 1959 Madras, 410, E.M. Forster and another v. A.N. Parasuram AIR 1964 Madras 331 (DB) Romesh Chowdhry and others v. Ali Mohamad Nowsheri and others, AIR 1965, Jammu and Kashmir 101 (paras 5 and 6), R.G. Anand v. M/s. Delux Films and others (1978) 4 SCC 118 , Eastern Book Company and others v. D.B. Modak and another, (2008) 1 SCC 1 (para 18) and Academy of General Education Manipal and another v. B. Malini Mallya, (2009) 4 SCC 256 ]. 24. To sum up, the Copyright is purely a creation of the statute under the Act. What rights the author has in its work by virtue of his creation, are defined under Sections 14 and 17. These are exclusive rights but subject to the other provisions of the Act. In the first place, the work should qualify under the provisions of Section 13, for its subsistence. Although the rights have been referred to as exclusive rights, but there are various exceptions to them which are listed under Section 52 of the Act. 25. As stated above, defendant Prem Lata on the basis of “PROTOCOL” which is nothing but an index had written and completed thesis under the guidance of 4th defendant, another guide appointed for the purpose. For certain acts, including research is a fair dealing with such literary, dramatic, musical or artistic work and is exempted from its infringement under Section 52 of the Act. Otherwise also, it was a reproduction of such work by a teacher or a pupil in the course of instructions received from the teacher of an educational institution, which is already exempted from its infringement as per clause (h) and (i) of the said Section. Further, Chapter XVI of Hand Book Volume-1, [the First Ordinances of Himachal Pradesh University, 1973] deals with the parameters under which such degrees are accorded by the University. Further, Chapter XVI of Hand Book Volume-1, [the First Ordinances of Himachal Pradesh University, 1973] deals with the parameters under which such degrees are accorded by the University. Thus, the plaintiff is legally bound to assist the student during the research work and the student was legally bound to take the guidance lawfully in writing the “PROTOCOL”, which is neither an infringement of the copyright nor of a moral right. When there is no copyright of the plaintiff, the moral right cannot be said to be independent thereof. Therefore, his plea to seek the relief cannot be acceded to. 26. Further, being a Government servant and a Guide of the defendant aforesaid plaintiff had performed his duty. The assertion of even moral rights over the acts and cause of action as pleaded to seek relief, are covered by the exceptions created by Copyrights Act, are thus defeated. 27. Further, the “PROTOCOL” was the idea created with the essential assistance of the plaintiff-guide and the defendant expressed the idea in her own form to write thesis. Therefore, in my considered opinion, as already stated above, the cause of action, as pleaded by the plaintiff on the facts contained in the plaint, is a legal bar to seek the relief sought and the trial of the case would be an exercise in futility. Therefore, the application is allowed. Consequently, the plaint filed in Civil Suit No.22 of 2011 by the plaintiff is hereby rejected, so also the pending application(s), if any.