Phonographic Performance Ltd. Vs Entertainment Network India Ltd. and Ors.

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903-CHS863-12.DOC

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agk

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION CHAMBER SUMMONS NO. 863 OF 2012

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IN

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SUIT NO. 1588 OF 2007

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Phonographic Performance Limited…Plaintiffs
Versus

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Entertainment Network India Ltd. & Ors.…Defendants

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Mr. S.U. Kamdar, Senior Advocate, with Mr. Amit Jamsandekar,
Ms. Pallavi Kulkarni, i/b Bilawala & Co., for the Plaintiffs.
Mr. Pradeep Sancheti, Senior Advocate, with Ms. Pratiksha
Avhad, Ms. Pooja Kapadia, Ms. Smriti Jha, i/b Mulla &
Mulla, for Defendant No.1.

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CORAM:G.S. PATEL, J
DATED:June 18, 2014

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PC:-

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1.This is the plaintiffs’ chamber summons for amendment of
the plaint. It was filed on 4th July 2012. By that time, by an order
dated 13th February 2012, issues had already been framed and
directions passed for recording cross-examination before a
Commissioner. Before that could happen, on 10th May 2012,
another order was passed by which it was directed that an affidavit
of evidence and compilation of plaintiffs’ documents would have to

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be filed in Court, the Court would first mark those documents and
then the matter would be taken up by the Commissioner. The
affidavit of evidence was filed only on 27th July 2012.

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2.The Chamber Summons seeks to add additional prayers in
damages and to justify those. Mr. Sancheti, learned senior counsel
for the 1st Defendant, opposes the Chamber Summons, saying that
in view of the amended provisions of Order VI Rule 17 of the Code
of Civil Procedure, 1908 and in view of the decisions of the
Supreme Court in Kailash v Nanhku & Ors.;1Ajendraprasadji N.
Pandey & Anr. v Swami Keshavprakeshdasji N. & Ors.,2 and in
particular Vidyabai & Ors. v Padmalatha & Anr.,3 the amendment
cannot be permitted for the trial must be deemed to have been
commenced on the day when “the issues were settled and the case
was set down for trial”. In particular, Mr. Sancheti relies on several
paragraphs in Vidyabai v Padmalatha to contend that the date of the
first hearing is the date on which the issues are framed. The
purpose of 2002 amendment was to eliminate the delays that were
endemic to all trials earlier when amendments were liberally
permitted. He also points out that the conditions precedent in the
proviso to Order VI Rule 17 are not satisfied. Indeed, in the affidavit
in support of the Chamber Summons there is not even an attempt
made to comply with these pre-requirements.

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3. Mr. Kamdar, learned senior counsel for the plaintiffs refers to a decision of the Supreme Court in Usha Devi v Rijwan Ahmad &

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1 (2005) 4 SCC 480

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2 (2006) 12 SCC 1

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3 AIR 2009 SC 1433

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Ors.4 and, in particular, to the decision of a Division Bench of this
Court in Mahadeo Maruti Bhanje v Balaji Shivaji Pathade & Anr.5
The latter was a decision on a reference to the Division Bench since
there were conflicting decisions by different benches of this Court.
Precisely this question was considered by our Division Bench, i.e.,
when can a trial be said to have “commenced”. The Division Bench
was mindful of the procedures in civil and criminal law and the
distinction between striking issues and framing charges. It
considered all the case law on the subject, including the three
decisions cited today by Mr. Sancheti and in unambiguous terms
held that

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“In our considered view, the trial in a civil suit
commences from the date of filing of affidavits in lieu of
examination in chief of the witnesses and the proviso to
Order 6 Rule 17 of the Code of Civil Procedure, 1908 will
come into play only after the stage of filing affidavits in
lieu of examination in chief of witnesses”.

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The reference to the Division Bench was answered in these terms.
That being now the law in force, there is no manner of doubt that
the trial can be said to have been commenced only on 27th July
2013 by which time the present Chamber Summons had already
been filed.

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4.There is no doubt that the fact that the Chamber Summons
is taken up for hearing and final disposal today creates a somewhat
anomalous situation in that the Defendants have filed written
statements, issues have been framed, the Plaintiffs have already

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4 AIR 2008 SC 1147

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5 (2012) 5 BCR 777

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filed an affidavit of evidence on the basis of the unamended plaint
and an amendment, though sought earlier, if granted today, will
result in additional pleadings. But that is not a reason to deny the
Plaintiffs an amendment, and certainly not one of this nature. Care
will have to be taken to protect the interest of the Defendants, so
that they are not prejudiced on account of this amendment.

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5.In that view of the matter, the Chamber Summons is made
absolute in terms of prayer clause (a). Amendment to be carried out
on or before 1st July 2014. An amended copy of the plaint shall be
served on the advocates for all the Defendants on or before 7th July
2014. The Defendants shall file their additional written statements,
if any, on or before 21st July 2014 and serve a copy thereof on the
Plaintiffs on or before that date.

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6.The Defendants shall thereafter be at liberty to apply for
framing of any additional issues that may arise. The Plaintiffs shall,
on or before 4th August 2014, file and serve on the advocates for
the defendants a copy of the supplemental affidavit in lieu of
examination in chief of their witness, along with a supplemental
affidavit of documents and compilation of documents, if any.

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7.List the matter for marking of documents on 20th August
2014 at which time further directions as to cross-examination will
be passed.

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8.It is clarified that since this amendment seeks to introduce a
claim in damages against the Defendants, the amendment will not
relate back to the date of filing of the suit. The Defendants shall be

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at liberty to raise the issue of limitation, if any. It shall also be open
to the Plaintiffs to contend that no such issue of limitation arises
since the claim for damages though made today relates to a prior
period for which the Plaintiffs were entitled to recover damages for
infringement of their copyright.

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9. The chamber summons is disposed of in these terms.

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(G. S. PATEL, J.)

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Phonographic Performance Ltd. v. Entertainment Network India Ltd. and Ors.

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Phonographic Performance Ltd. v. Entertainment Network India Ltd. and Ors.

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