TMI Blog2001 (8) TMI 1390X X X X Extracts X X X X X X X X Extracts X X X X ..... a under the several copyright works. The plaintiff No. 2 advertises, markets and distributes throughout India two models of toothbrush, the AQUAFRESH FLEX and AQUAFRESH FLEX N' DIRECT. These toothbrushes are manufactured for it by Menezes and Schiffer Dental Care Products Ltd. (formerly Menezes Electronics Limited) a Company incorporated under the Indian Companies Act, 1956, having a place of business at 3 rua de Qurem, Panjim, Goa. The plaintiff No. 3 is an English public company having a place of business at New Horizons Court, Brentford, Middleses, TW8 9EP, United kingdom. It is the holding company for the plaintiffs Nos. 1 and 2, all of whose issued shares are ultimately owned by it. It has substantial interest worldwide in the pharmaceutical and healthcare fields. The subject matter of this action is the precision mould sets in which two models of the plaintiffs toothbrushes are manufactured by the process of hot injection moulding of flowable materials. Such handles are thereafter tufted with bristles by a separate manufacturing operation and are subsequently blister packed for sale. Neither of these subsequent operations is relevant to this Action. In making the abovemen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntract of service with Plast O Form. The creation of the cavity in the mould was effected by the process of the spark erosion (or EDM) of machined steel blanks using shaped electrodes for this purpose. The actual pilot moulds which they made for the MARK II project no longer exist, having been either lost or destroyed. Sample toothbrushes were produced by Boucherie using these pilot moulds during late 1992 for approval by plaintiff No. 1. In the event, the sample toothbrush handles so produced were approved by plaintiff No. 1 without alteration. Boucherie was thereupon instructed by Schiffer on the direction of plaintiff No. 1 to prepare drawings for the making of production moulds for this toothbrush. By late 1992, drawings for a production mould had been made by Calu. There having been no material change between pilot and production moulds, the cavities in each are identical. Further, toothbrushes made using either pilot or production moulds are in all material respects, identical. The drawings for the pilot moulds are the original works of their author Calu, and were produced in the course of and as part of his employment under his aforesaid contract of service. Copyright subsis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ns and in appearance. Reference to the drawings reveal in particular a virtual identity in appearance and dimensions between the PEPSODENT POPULAR toothbrush and the Major Component of the MARK HI toothbrush. The PEPSODENT POPULAR toothbrush is manufactured by injection moulding of thermoplastic material. The moulds in which such toothbrushes are made are in two parts and each contain cavities which together are shaped to reproduce (or substantially reproduce) the shape of the PEPSODENT POPULAR toothbrush. The Defendant's moulds were designed by or on behalf of the Defendant No. 1. In Particular, drawings for such moulds were made and moulds were made therefrom by the process of spark erosion for and on behalf of the Defendants or either of them. In the premises, the manufacture of the Defendant's moulds (and/or any pilot mould or moulds antecedent thereto or moulds made to replace those moulds) has been effected or authorised by the Defendant No. 1 or by the Defendant No. 2, alternatively by Defendant No. 1 and Defendant No. 2 acting together. By importing the Defendant's moulds or by manufacturing or authorising the manufacture of the said moulds as alleged in the pre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ffs further submit that they are entitled to an order for delivery up to the plaintiffs (or to their representatives) of all moulds in the Defendant's authority, possession, power, custody or control (or that of either of them) which are infringing copies of any or all of the first and/or third plaintiffs copyright works together with all plates used in the making thereof as may be in their respective power, possession, custody or control. 4. The plaintiffs in the Notice of Motion pray for temporary injunction restraining the Defendants from infringing the copyright of the plaintiffs in the drawings and the moulds and also restraining the Defendants from manufacturing any articles from the infringing moulds. They also seek appointment of the receiver. 5. The Notice of Motion is opposed by both the Defendants. They deny that their drawings and moulds are similar or identical to the alleged drawings and moulds of the plaintiffs. They also deny that the plaintiffs have any copyright in the drawings and the moulds. They claim that it is not possible for the plaintiffs to have any copyright in the drawings and the moulds under the Copyright Act. The Defendants have also raised ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nts herein. The application for interim was hotly contested. In the course of the hearing of the interim application in the said suit, the plaintiffs gave up their claim on the basis of rneir registered designs. The application for interlocutory relief was rejected by the Delhi High Court. An appeal is preferred by the plaintiffs and the same is pending. The plaintiffs object was to prevent the 1st Defendants from-selling PEPSODENT POPULAR toothbrushes and as the plaintiffs were not getting any reliefs in the Delhi High Court, the plaintiffs decided to file the present suit in October, 1999 on the ground of alleged infringement of alleged copyright in drawings and moulds. By the present suit, the plaintiffs are attempting to prevent the 1st Defendants from selling 'Pepsodent Popular' toothbrushes in an indirect way by seeking possession of the Defendants' moulds. What the plaintiffs could not achieve by filing the first suit, is sought to be achieved by filing the present suit on a claim which is altogether unsustainable in law and facts. On the plaintiff's own showing, apparently they have no grievance against the Defendants selling their toothbrushes. Their grie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e heard the learned counsel for both sides on these preliminary issues. 8. The learned Counsel appearing for the Defendants submits that the re-assertion of a cause of action is a fraud upon the Court. The reason for this, as a proper rule of evidence, is that two objectives are sought to be achieved. Firstly, the final termination of disputes is in the general interest of the community as a matter of public policy. Secondly, the interest of the individual is to be protected against multiplicity of litigation. A statutory manifestation of this rule is to be found in Section 11 of the Code of Civil Procedure, 1908, whereunder there is a bar to trying any suit in which, the matter directly and substantial in issue has been directly and substantially in issue in a former suit between the same parties, and the former suit has been conclusively decided by a Competent Court. The provisions of Section 11 also bar the adjudication of an issue in subsequent proceedings which issue could have been raised in the earlier proceedings. The idea behind this provision is to prohibit multiplicity of litigation. Another instance of the statutory manifestation of the above principle is to be found ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f action were available at the time when the earlier proceeding was adopted. The underlying principle is that the plaintiff must avail of all grounds for claiming reliefs or include all causes of action at one time so as to avoid aggravating litigation by adopting successive proceedings on a specious plea that the causes of action or grounds of reliefs are different and/or are independent of one another. The learned counsel also relies on the observations of the Supreme Court in its judgment in the case of State of Uttar Pradesh v. Nawab Husein, and also in the case of P. K. Vijayan v. Kamalakshi Amma, . He also relies on a judgment of a Division Bench of this Court in the case of Arte Indian v. P. Mittulaul Lalah, 1999(2) Mh.LJ. 957 = 2000 PTC, 166, the learned counsel further submits that it is the alleged conduct of the Defendants of marketing the toothbrushes which according to the plaintiffs are identical or similar to the toothbrushes, which will give cause of action to the plaintiffs to institute a suit against the Defendants. If the plaintiff is right in submitting that the toothbrushes of the Defendants are identical to the toothbrushes of the plaintiffs, then it is obviou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... but as the reliefs claimed in the present suit arise out of a different cause of action, the suit cannot be said to be barred by the provisions of Order II, Rule 2 of the Civil Procedure Code. The learned Counsel relies on a judgment of the Supreme Court in the case of Bengal Waterproof Ltd. v. Bombay Waterproof, 1997 PTC. 17. He submits that when the Delhi suit was filed, the plaintiffs did not know that the drawings and the moulds are owned by the 1st Defendant. He further submits that as the Delhi suit is still pending, the submission made on behalf of the Defendants relying on the provisions of Section 11 of the Civil Procedure Code have no substance. He submits that the question of application of res-judicata arises only when the earlier suit is decided on merits. According to him as the law permits him to institute a separate suit based on a separate cause of action, it cannot be said that filing of such suit amounts to abuse of the process of the Court. He submits that in any case the cause of action for the present suit arose in 1999 when the Bombay mould was imported. Import of an infringing mould gives a fresh cause of action to the plaintiffs, it is submitted that each ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er Clause (c) and (g) of the Delhi Suit read as under :-- (c) A decree of perpetual injunction to restrain the Defendant Nos. 1 and 2, jointly and severally their partners, servants, agents and distributors from passing off their business and goods as those of the plaintiffs by restraint against the Defendants Nos. 1 and 1 jointly and severally, their partners, servants, agents and distributors from manufacturing, selling or offering for sale toothbrushes bearing design which is identical with or deceptively similar to the toothbrush designs being manufactured and marketed by the plaintiffs. (g) A decree for the Defendant Nos. 1 and 2 to deliver upto the plaintiffs for destruction all toothbrushes bearing the said design or any design deceptively similar thereto manufactured by the Defendants by using or applying the plaintiff's aforesaid registered design and all moulds, dyes and casts and other related materials used for such manufacture and for cancellation/destruction of all labels, stationeries, packets, wrappers, publicity materials etc. displaying the said design in respect of the product of the Defendants; It emerges from the plaint of the Delhi suit that when ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y that the Defendant No. 1 with deceit acquired the mould in question and illegally started using/authorising its use, for manufacture of the impugned toothbrushes. I say that the copyright in the mould vests exclusively with the plaintiffs for whose exclusive use the mould was developed and produced from the drawings/blue prints of the plaintiffs. The defendants are not at all entitled to be in possession of the moulds in question and they deserve to be ordered to hand over the mould(s) to the Plaintiffs. The above quoted statement shows that the plaintiffs, when the Delhi suit was filed were clearly aware of the mould as also the drawings in relation to which copyright is claimed in this suit. It goes without saying that for the purpose deciding these preliminary issues, I have to assume that the plaintiffs have copyright in the drawing and the mould. It is clear that at the time when the Delhi suit was filed the plaintiffs were aware that their copyright in the drawing and the mould were infringed. It needs to be observed here that, it is not disputed by the Defendants that at the time when the Delhi suit was filed the Baroda mould was already imported and the Bombay mould w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t and their failure to do so bars them from claiming those reliefs, which were left out in the Delhi suit, in this suit. 13. The provision of the Civil Procedure Code relevant in this regard are contained in Sections 9, 11, 151 and Order II, Rules 1 and 2. Section 9 of the Civil Procedure Code lays down that the Civil Courts have jurisdiction to try all suits of a civil nature except those cognizance of which either is expressly barred or is barred by necessary implication. Section 9 reads as under :-- Courts to try all civil suits unless barred : The Courts shall (subject to the provisions herein contained) have jurisdiction to try all suits of a civil nature excepting suits of which their cognizance is either expressly or impliedly barred. Then comes Section 11, which incorporates the principle of res judicata. It lays down that the Court shall not try any suit in which the matter directly and substantially in issue could have been made a ground of attack or defence in a formerly instituted suit between the same parties. Provisions of Section 11 of the Civil Procedure Code relevant for the purpose of this order read as under :-- Res judicata. No Court shall try any s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the Civil Procedure Code that this duty has been cast on the plaintiff to prevent further litigation on that subject, between the parties. In my opinion, with the same object the provisions of Section 11, explanation IV of the Civil Procedure Code have been enacted. Therefore, in my opinion, the provisions of Section 11 explanation IV and Order II, Rule 1 are in furtherance of the same scheme i.e. to prevent repeated litigation between the same parties on the same subject. It is further to be noted here that Rule 1 of Order II uses the phrase subject in dispute and not the phrase cause of action which is used in Rule 2 of Order II of the Civil Procedure Code, similarly Section 11 of the Civil Procedure Code uses the phrase matter which might or ought to have been a ground of attack . It thus appears that, though there are several causes of action available to a plaintiff, if all the causes of action are relating to the subject in dispute, then Order II, Rule 1 obliges the plaintiff to include all those causes of action in one suit, if it is practicable for the plaintiff to do so. Now, if a plaintiff disregards the mandate of Order II, Rule 1 and institutes a suit leaving out ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ituting several suits against the same parties on the same subject in dispute has been termed by the Supreme Court as abuse of the process of the Court. Indeed, if a litigant is permitted to adopt such a course of action, he may institute such subsequent suits not necessarily, in the same Court, but in different States at different times. This opens the possibility of different Courts, all of competent jurisdiction, rendering contradictory decisions on the same subject in dispute between the same parties, and when all these Courts are of equal authority and are part of the one legal system it will definitely bring the administration of justice in disrepute. It is further to be seen that if such a course of action is permitted, then nothing prevents a litigant from instituting one suit on the same subject, raising some of the grounds, in one Court taking his chance at getting an interim order from that Court, and in case of his failure to get an interim order instituting another; suit on the same subject, but on the grounds, which were left out from the first suit, in some other Court, and again making an attempt to get an interim order. There is no point in denying that with the fi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l reliefs- A person entitled to more than one relief in respect of the same cause of action may sue for all or any of such reliefs; but if he omits, except with the leave of the Court, to sue for all such reliefs, he shall not afterwards sue for any relief so omitted. Order II, Rule 3. Joinder of causes of action. -- (1) Save as otherwise provided, a plaintiff may unite in the same suit several causes of action against the same defendant, or the same defendants jointly; and any plaintiffs having causes of action in which they are jointly interested against the same defendant or the same defendants jointly may unite such causes of action in the same suit; (2) Where causes of action are united, the jurisdiction of the Court as regards the suit shall depend on the amount or value of the aggregate subject matters at the date of instituting the suit. Perusal of Rule 2 of Order II shows that it obliges a plaintiff to include his whole claim, which he is entitled to make in respect of a cause of action, it also provides for the consequence of the plaintiff's failure to do so. A comparison of the provisions of Rule 1 and Rule 2 of Order II shows that, so far the present purpos ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nds in relation to their copyright in the drawing and the mould in the Delhi suit, is that infringement of their copyright in the drawing and the mould in separate cause of action and therefore they are entitled to institute this suit and the Baroda suit. 17. Insofar as the present case is concerned, the plaintiffs instituted the Delhi suit, because the 1st Defendant started marketing its toothbrushes, which according to the plaintiffs, were similar or identical to their toothbrushes. They filed the Delhi suit because as a result of the conduct of the 1st Defendant their business interest was jeopardised. Thus the subject in dispute in Delhi suit was the toothbrushes of the 1st Defendant and the object to be achieved by the plaintiffs by filing the Delhi suit was to prevent the 1st Defendant from marketing those toothbrushes. Now, it is to be seen, as to which were the grounds which could have been raised by the plaintiff, in the Delhi suit, so as to afford final decision on the subject in dispute, on the basis of the facts which can be said to be within the knowledge of the plaintiffs, from the material on the record of this suit. The plaintiffs have said in the Delhi suit that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uit disregarding mandate of Order II, Rule 1 of the Civil Procedure Code and the subsequent conduct that they intended to indulge in multiple litigation. From the material produced on record, it is clear that the plaintiffs knew when the Delhi suit was filed, that the Unident of Baroda is manufacturing the toothbrushes for the 1st Defendant, still the Unident Baroda is not joined as a Defendant in the Delhi suit. Subsequently, a suit is filed by the plaintiffs at Baroda, making a grievance about infringement of the copyright in the mould, but to that suit 1st Defendant in this suit is not joined as a Defendant, though in the affidavit dated 19-9-1997, filed in the Delhi suit the plaintiffs say that the Baroda mould, to which the Baroda suit relates, is owned by the 1st Defendant. The Delhi suit was filed in 1996, an application for temporary injunction against the 1st Defendant was filed during the course of hearing, the plaintiffs had to give up their claim under the Designs Act. It appears that, it is only, after the doubt arose about the possibility of the plaintiffs getting an interim order in the Delhi suit, that the present suit was filed in October, 1999. Though, ultimate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... maintained. Unlawful violation or invasion of right. The right which a party has to institute a judicial proceeding. It can be said that the fact which gives a person a right to judicial relief constitutes cause of action. The Supreme Court has considered the question as what constitutes cause of action in its judgment in the case of A. B. C. Laminart Pvt. Ltd. v. A. P. Agencies, and has observed thus in paragraph 12 of the judgment : A cause of action means every fact, which, if traversed, it would be necessary for the plaintiff to prove in order to support his right to a judgment of the Court. In other words, it is a bundle of facts which taken with the law applicable to them gives the plaintiff a right to relief against the defendant. It must include some act done by the Defendant since in the absence of such an act no cause of action can possibly accrue. It is not limited to the actual infringement of the right used on but includes all the material facts on which it is founded. It does not comprise evidence necessary to prove such facts, but every fact necessary for the plaintiff to prove to enable him to obtain a decree. Everything which if not proved would give the de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hi suit, therefore, this suit would be barred by the provisions of Order II, Rule 2 of the Code. The learned counsel for the plaintiffs disputes this position and submits that, this may be the situation in relation to the Baroda mould, which was already imported when the Delhi suit was filed and therefore reliefs on the basis of the right of the plaintiffs under the Copyright Act could have been claimed by them in relation to the Baroda mould, but the Bombay mould has admittedly been imported subsequently in the year 1998-1999, therefore this suit which relates to the rights of the plaintiffs under the Copyright Act which have been infringed by the plaintiffs by importing the Bombay mould, cannot be said to be barred by the provisions of Order II, Rule 2 of the Civil Procedure Code. According to him, cause of action for this suit arose when the Bombay mould was imported and not when the Delhi suit was filed. He submits that this suit cannot be said to be barred by the provisions of Order II, Rule 2 of the Civil Procedure Code, only because, in the Delhi suit relief could have been claimed by the plaintiffs for preventing import of similar moulds including the Bombay mould. He furth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the first suit debars him from instituting a fresh suit for the infringement and passing off after the filing of the first suit, was not advanced before the Supreme Court in that case, therefore, it has not been considered by the Supreme Court. It appears, that these observations have been made by the Supreme Court in peculiar facts of that case. In that case, the first suit was already dismissed, when the second suit was filed, therefore, it was not open to the plaintiff to seek appropriate amendments in the first suit and ventilate his grievance. The first suit was not dismissed on merits, but because of a defect in the prayer clause of the suit. So far as the merits of the case of the plaintiff in that case are concerned, the High Court, had recorded findings in favour of the plaintiff and the defendant had accepted those findings and had not filed any cross objection in the appeal before the Supreme Court. In this situation, the Supreme Court has made the above quoted observations, so that the plaintiff who had made out a case on merits should not be made to suffer for all the time in future, because of an error of technical nature, in the first suit. In the present case, as ..... X X X X Extracts X X X X X X X X Extracts X X X X
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