1. I may at the outset state that while reserving for orders, a reference was made to three applications, i.e., I.A.4336/2020 which is an application filed by the plaintiff under Order XXXIX Rule 1 and 2 read with Section 151 CPC; I.A. 4681/2020, which is an application under Order XXXIX Rule 2A read with Section 151 CPC and I.A. 4979/2020, which is an application under Order VII Rule 11 and Order I Rule 9 read with Section 151 CPC. While preparing the order, I find that defendant Nos. 1 and 2 have filed an application being I.A. 5064/2020 under Order XXXIX Rule 4 CPC, which has not been reserved for orders. As any decision in I.A. 4336/2020 shall have a bearing on I.A. 5064/2020, I deem it appropriate not to decide I.A. 4336/2020 vide this order and leave it for the parties to argue the same along with I.A. 5064/2020 separately.

2. The prayers made in I.A. 4979/2020 are the following:

“In view of the aforesaid, it is humbly prayed:

A. The Honble Court may be pleased to allow the present application and reject the plaint filed by the Plaintiff.

B. The cost of the present application may be awarded to Defendants.

C. Pass any such order which may be deemed fit in the interest of justice and any in favour of the Defendants.”

3. For determining the said application, it is necessary to state relevant facts and the, same as noted from the plaint are as follows.

4. It is the case of the plaintiff that he is a well-known and reputed teacher of Chemistry for Class 11 and 12, with over thirty years of experience in the field. He works for gain at Delhi Public School, R.K Puram New Delhi, one of Indias premier Schools since 1991 („DPS, for short). The plaintiff teaches 120- 150 students every year. As a result of his able guidance many of the students have gone to pursue PhDs and academic research at institutions such as MIT and Harvard University in USA; while others are working in well established institutions.

5. It is averred that the plaintiff has also authored several books of Chemistry which have been published by celebrated publication houses such as Mc Graw Hill, Pearson and S. Chand Publications etc. The notes relate to different topics within the Chemistry syllabus and the plaintiff has been uploading / modifying the notes regularly to keep them abreast with the time. The plaintiff also amends these notes for different students according to their suitability. For some students, who wish to prepare for IIT /JEE, the notes have been customized to contain more information than regular course work for classes 11 and 12 text-books. This aids and enables students to prepare for the IIT / JEE examination along with their regular course work for school and / or board exams. Since the year 1994, the plaintiff has been preparing the notes of his teaching in a unique and traditional hand written manner, as opposed to typing / printing or through power point presentations, and the plaintiff affixes his signature / name on every page of the notes. The notes are updated and amended as and when needed.

6. It is stated that the notes are shared with the plaintiffs students as part of the plaintiffs teaching method, with the sole intention of aiding students in their study of the subject and to instill within them a keenness for learning.

7. It is the plaintiffs case that the defendant No.1, is a former student of the plaintiff, who offers services such as online coaching classes, providing lecture videos and reading materials on online platforms such as Instagram, YouTube, as also on his own website called www.apnikaksha.com, defendant No.2 herein.

8. It is averred in the plaint that the defendant No.1 has been flagrantly violating the plaintiffs copyright by unauthorisedly uploading scanned copies of the plaintiffs notes on various social media platforms. Further, defendant No.1 is also violating the plaintiffs rights by using the contents of the notes as part of his videos and vlogs. It is stated by the plaintiff that in some cases, the defendant No.1 has also reproduced the notes verbatim and uploaded the same material in a different handwriting and even the inadvertent errors made by the plaintiff in the notes also appeared in the infringing material uploaded by the defendant No.1.

9. It is stated that defendant No.1 is earning commercial gains from his infringing activities by charging a subscription fee on his website www.apnikaksha.com to inter alia make the plaintiffs notes accessible to the public, coupled with the advertisement revenue generated on social media platforms, thus making the copyrighted content another source of income for himself. That a part of profits is also gained by these social media platforms, defendant Nos.4-5, making them complicit.

10. That apart, it is stated that the alleged notes have been placed online for commercial gain without any credit to the plaintiff, and have been modelled as „Aman Dhattarwal Chemistry notes or „Aman Bhaiyas notes. Moreover, the defendant No.1 has even tried to edit and conceal plaintiffs signatures, although signatures are still visible on many pages where they were affixed too close to the text. It is further stated even a third party, who is presumably one of the plaintiffs student has even commented on the defendant No.1s Instagram posts identifying the notes as being the proprietary matter of the plaintiff.

11. It is averred in the plaint that the plaintiff came to know about the infringing activity of defendant No.1, in the month of April 2020, while browsing through online study material, as the online classes have become prevalent amidst the lockdown imposed to contain the spread of coronavirus. Thereafter, he preferred the present suit.

12. I may state here, the defendant Nos.1 & 2 have not filed any written statement. Rather the present application under Order VII Rule 11 CPC and Order I Rule 9 has been filed.

13. It is the case of the defendant Nos.1 & 2 in the said application and as contended by Mr.C.M. Lall, learned Senior Counsel that an author in relation to a literary work is the author of the work in terms of Section 2(i)(d) of the Copyright Act, 1957 („Act of 1957, for short) whereas the First Owner of the copyright, in terms of Section 17(c) ofof 1957, of any work made during the course of authors employment under a contract of service, is the employer of the author, in the absence of any agreement to the contrary. An author is distinct from the first owner of copyright. Thus, even if the plaintiff claims to be the author of the Chemistry notes in issue in the present suit, the plaintiff cannot claim to be the first owner of the said work.

14. According to Mr.Lall under the of 1957 the statutory requirement is that the owner of the copyright is to sue for infringement or be made party to the suit for infringement of copyright and, therefore, a suit for copyright infringement thereto has to be filed accordingly and not otherwise. [Reference (Shiv Kumar Chadha v. Municipal Corporation of Delhi & Ors., (1993) 3 SCC 161 [LQ/SC/1993/444] ].

15. He stated that the case of the plaintiff in terms of paragraph 2 of the plaint sufficiently prove that the plaintiff is an employee of the School and that the plaintiff is not the owner of the copyright in issue. The relevant portion of the plaint reads as under:- “

“2. The Plaintiff is a well-known and reputed teacher of Chemistry for Class 11 and 12, with over thirty years of experience in the field. He works for gain at Delhi Public School, R.K. Puram, New Delhi (hereinafter referred to as DPS R.K. Puram), one of Indias premier schools. The Plaintiffs teaching method includes oral lecture style/classroom teaching along with tuition classes outside school hours involving supplemental lectures with his extensive handwritten notes. The Plaintiff has carefully, diligently and methodically curated the handwritten notes over a period of years, and the notes are anccumulation of a career-long experience in teaching.”

16. Thus, on the ownership of the Chemistry notes, it is submitted by Mr. Lall that:

(i) The plaintiff is a chemistry teacher, employed by DPS since the year 1991 for classes 11th & 12th

(ii.) The Chemistry notes have been created by the plaintiff during his course of employment and under a contract of service of the School. The handwritten notes are from either (i) oral lecture style/classroom teaching; and (ii) tuition classes outside school hours.

(iii.) The chemistry notes, which are the subject matter of the present suit, were prepared in the year 1994 to help the students to prepare better and do well in exams.

(iv.) The notes contain various topics of chemistry, which are part of the syllabus and are updated to keep the same abreast with time.

(iv.) To claim ownership of copyright, the plaintiff would have to show a contract with the School permitting him to make and share notes outside of his employment. If this is indeed done, then it would be violative of the Delhi School Education Act, 1973 („DSE Act, for short) and Delhi School Education Rules, 1973 („DSE Rules, for short).

17. He further stated that the plaintiff is an employee of the School and is governed by the Code of Conduct as enumerated under Section 9 of the DSE Act, the plaintiff could not have made the notes outside of his employment with DPS. Mr. Lall also stated that under Rule 122 of DSE Rules and under the provisions of Rule 113 of the said Rules, no teacher is permitted to “undertake private tuitions or private employment or engage himself in any business”. The Code of Conduct of teachers set out in Rule 123 of the said Rules do not permit a teacher to “accept any job of a remunerative character from any source outside the school or give private tuition to any student or other person or engage himself in any business.”

18. It is also stated by Mr. Lall that it is a well settled doctrine “he who comes to Equity, must come with clean hands”. Therefore, the Court has to assume that the plaintiff has approached this Court with clean hands and all the submissions made and rights claimed in the plaint are in compliance with the laws and regulations laid down for teachers with in the DSE Act & DSE Rules. Therefore, any tuition/coaching given by the plaintiff, as claimed in the plaint, has to be within the ambit of the DSE Rules, wherein extra hours for coaching can be given to weak students beyond school hours. He submitted that however, the said tuition/coaching is given while being the employee of the School. He also submitted that the plaintiff has not pleaded in the plaint that he is in breach of the DSE Rules and thus it is to be assumed that the plaintiff has been teaching and making the notes for the students of DPS in furtherance to his employment contract with the school. Hence, the ownership of the copyright in the Chemistry notes, vests only with DPS, which is not a party to the suit.

19. It is also submitted by Mr.Lall that the above submission is de hors the argument that mere handwriting does not make anything a copyrightable subject matter. As an example, handwriting an exact text from a textbook would not give the person, handwriting its copyright in the same. He also stated that it is an established principle that the plaintiff will have to show that he has made significant changes in the existing syllabus in the notes which are the subject matter of the present suit. In the present case, lack of originality is to be presumed owing to the fact that the syllabus is very old with several textbooks having been written on the subject and there can hardly be any originality attributed to known and established concepts, in the present case, of Chemistry. Thus, according to Mr.Lall, there can be no originality in the notes as these notes are to prepare students for examination under the CBSE board and the examination questions are confined to the syllabus. Therefore, it is his submission that the conflict could only have been resolved by either DPS being the plaintiff or at least being impleaded as a party, which the plaintiff has chosen not to do

20. Further, he stated that the present suit is also barred by Section 61 of theof 1957, as the owner of the Copyright, if any, has not been made a party to the present suit and since the plaintiff being not the owner of the copyright in the Chemistry notes which are the subject matter of the present suit and hence the plaintiff is not entitled to any relief of infringement or damages under Sections 55 of theof 1957. That apart, it is submitted by him that the plaintiff cannot contest this suit simply on the ground that he claims to be the owner of the copyright of the subject matter notes, since the said claim is also clearly contrary to the provisions of Section 17 (c) of theof 1957.

21. Mr. Lall also submitted that the plaintiff in the cause title reproduced the wrong email IDs to make the defendants suffer the ex-parte ad interim stay, by deliberately avoiding service. In this regard he drew the attention of this Court to plaint as well as documents filed along with it wherein the correct email ID has been reproduced and stated that despite having specific knowledge of the email ID of defendant Nos.1& 2, the plaintiff made a deliberate misstatement.

22. That apart, Mr.Lall contended that a right in any work has to be claimed in accordance with Section 16 of theof 1957.

23. On the maintainability of the application under Order VII Rule 11, CPC, Mr.Lall stated that the plaintiff has cited CNH Industrial (India) Pvt. Ltd. v. Tirth Agro Technology, 2019 (78) PTC (35 [LQ/DelHC/2019/1163] )(Del), relying on the proposition that for the purpose of Order VII Rule 11 CPC, the Court has to only look at the plaint and presume that the averments made in the plaint are correct. He further stated, in the cited case, the plaintiff was the owner of the copyright as per Section 17(c) of theof 1957 and had filed the suit for infringement of copyright and damages. The only dispute between the parties therein was that the averments made by the plaintiff, in the plaint, that the authors being the employees of the plaintiff was correct or not. There was no dispute as to whether the first ownership of the copyright in a work made by the employee belongs to the employer, as in the present case. Therefore, the averments made by the plaintiff therein when presumed to be correct a cause of action under Section 17 (c) of theof 1957 was made out in the favour of the plaintiff.

24. According to him, the intent of this Court in CNH Industrial (India) Pvt. Ltd. (supra), while laying down the above principle was not to or can be argued to neglect that the facts, which are presumed to be correct, must support the Law. He stated that the present case differs from the cited case on the grounds:

"a. The plaintiff herein is not the employer but the employee of DPS and DPS has not filed the suit. b. The notes are shared with his students as part of his teaching methods.

c. The defendant No.1 received the notes in his time at school.

d. The notes were prepared, after being employed with DPS, for his students to assist them to perform better in examination."

25. According to Mr.Lall, the plaintiff has no-where pleaded that the subject matter notes were not distributed to DPS students and/or that the tuitions were given in contravention to the code of conduct enumerated in DSE Act and DSE Rules. Therefore, it has to be presumed that the notes were distributed to the students of DPS and tuition/coaching outside school hours were given in accordance with Rule 114 of the DSE Rules. Therefore, from the facts of the plaint it can only be presumed that the notes were prepared in compliance of Section 17(c) of theof 1957 and the claim that the plaintiff is the owner of the copyright cannot be presumed to be correct.

26. Furthermore, he submitted that it is a well-settled principle of law that an application under Order VII Rule 11 CPC can be filed at any stage of the suit. (Re: Saleem Bhai & Ors. vs. State of Maharashtra & Ors. (2003) 1 SCC 557 [LQ/SC/2002/1340] ).

27. Mr.Lall also submitted that defendant No.1 has filed the application under Order VII Rule 11, CPC at the first instance He further submitted that the plaintiff has relied on the decision of the Supreme Court in SCG Contracts (India) Private Ltd vs. K.S. Chamankar Infrastructure Pvt. Ltd. And Ors.; (2019) 12 SCC 210 , [LQ/SC/2019/256 ;] ">(2019) 12 SCC 210 , [LQ/SC/2019/256 ;] [LQ/SC/2019/256 ;] and argued that Order VII Rule 11 proceedings are independent of the filing of a written statement once a suit has been filed and that the liberty to file an application for rejection under Order VII Rule 11 CPC cannot be made as a ruse for retrieving the lost opportunity to file the written statement. In this regard, it is submitted that as per the order dated March 23, 2020 in Suo Moto Writ Petition (C) No.3 of 2020 by the Supreme Court the period of limitation in all proceedings, irrespective of the limitation prescribed under the general law or Special Laws whether condonable or not stand extended w.e.f. March 15, 2020 till further orders.

28. In view of the above, it is submitted that the limitation period of the defendant for filing written statement in the said suit has not yet commenced and thus the argument of the plaintiff that the defendants application under Order VII Rule 11 CPC cannot be heard without a written statement has no merit. Even otherwise, the outer limit for filing of the written statement by the defendant No.1 is still intact and the 120 days limitation in filing written statement is not yet over and the defendant No.1 is in the process of finalizing its written statement and shall file the same in accordance with law within the prescribed time limit [See Sinopharm Weiquda Pharmaceutical Co (WQD) vs. DSM Sinochem Pharmaceuticals India Pvt. Ltd. & Anr. Decision dated October 12, 2017 in RFA (OS) (COMM) 9 of 2017].

29. Mr.Maninder Singh, learned Senior Counsel ably assisted by Mr. Prabhas Bajaj, Adv. (who also argued for the plaintiff) has taken a preliminary objection on the maintainability of the present application under Order VII Rule 11 CPC.

30. It is stated by him that it is a settled principle of law, in an application under Order VII Rule 11 CPC, it is only the averments in the plaint which are to be seen by the Court and which shall be treated as true and correct. The Court would not consider any allegations made by the defendant even in its written statement or in any application filed by the defendant.

31. It stated by Mr. Singh that the application filed by defendant Nos.1 and 2 under Order VII Rule 11 CPC is neither maintainable nor sustainable in law. As against the requirement of pleading the specific case that under which specific clause of Order VII Rule 11 CPC the “bar” against the suit itself is claimed, at the outset, it is submitted by him that the said application does not refer to or raise any of the grounds available under clauses (a) to (f) of Order VII Rule 11 CPC. Without prejudice to the submission that filing of the present suit is not barred under any provision of law, he submitted that the application filed by defendant Nos.1 & 2 does not meet ingredients of Order VII Rule 11 CPC and deserves to be dismissed on this ground at the threshold itself.

32. He stated that it is a settled principle of law that while deciding an application under Order VII Rule 11 CPC, the Court would only take into consideration the averments made in the plaint. The contents, either of the written statement or even of the application under Order VII Rule 11 CPC itself, would not deserve any consideration by the Court. They would stand excluded. (Ref: P.V. Guru Raj Reddy (supra)). It has been laid down repeatedly by the Supreme Court that if the averments made in the plaint disclose the cause of action and the suit is not barred by any law, the application under Order VII Rule 11 would not be maintainable. It is also the settled principle of law that while considering any application under Order VII Rule 11 CPC, doubtful / disputed issues would not be considered / decided by the court, unless the averments in the plaint, ex facie, demonstrate that it is covered by any of the clauses under Order VII Rule 11 CPC. Any doubt or dispute would have to be adjudicated in the course of the trial. In this regard, Mr. Singh relied upon the following judgments of the Supreme Court:-

"(i) Pawan Kumar v. Babulal, (2019) 4 SCC 367 [LQ/SC/2019/610] ; (ii) P.V. Guru Raj Reddy v. P. Neeradha Reddy & Ors., (2015) 8 SCC 331 [LQ/SC/2015/211] ;

(iii) Kamala v. K.T. Eshwara Sa & Ors., (2008) 12 SCC 661 [LQ/SC/2008/1019] ;

(iv) Popat and Kotecha Property v. State Bank of India Staff Assn., (2005) 7 SCC 510 [LQ/SC/2005/854] ;"

33. Mr. Singh further placed reliance on the judgment of the Coordinate bench of this Court in the case of CNH Industrial (India) Pvt. Ltd. v. Tirth Agro Technology Pvt. Ltd.; 2019 SCC Online Del 7484, wherein in similar facts and circumstances, an objection was taken that the suit for copyright infringement ought to be rejected under Order VII Rule 11 CPC as the plaintiff did not possess the copyright in the work, on account of Section 17(c) of theof 1957. Rejecting the objection, this Court therein, inter alia, held that for the purpose of deciding the application under Order VII Rule 11 CPC, the clear averment made in the plaint that the plaintiff is the owner of the copyright - is sufficient and satisfies the requirement of setting up the cause of action in the plaint.

34. He submitted that this Court in CNH Industrial (India) Pvt. Ltd. (supra) further held that the suit had been filed for seeking multiple reliefs including for passing off etc., and since no plea had been raised in the Order VII Rule 11 CPC application against the other reliefs prayed in the suit, while rejecting the application, held that it is impermissible to reject a part of the plaint.

35. Without prejudice, it is also submitted by Mr.Singh that a bare perusal of the said application makes it clear that the defendants have not raised any of the grounds under Order VII Rule 11 CPC. Moreover, against a categorical submission made by the plaintiff in its reply to the present application (paras 3 and 4), the defendants admitted vide their rejoinder affidavit that they are only raising a plea under Order I Rule 9 CPC for non-joinder of necessary parties.

36. Further, it is stated by Mr. Singh that, (i) the plaintiff has in the plaint categorically stated that he is the owner of the copyright in the handwritten notes; and (ii) the defendant Nos.1 and 2 had been duly served; and therefore sought the rejection of the present application. This according to him, is due to the fact that plaintiffs authorship of the notes is admitted by the defendant Nos.1 and 2 even in the reply filed to the application under Order XXXIX Rules 1 & 2 CPC, as well as in the present application. Further, the defendant Nos.1 and 2 have admitted the fact that they have utilized / copied / distributed / reproduced the notes of the plaintiff and also that the signature of the plaintiff on the top of each of the said hand-written Chemistry notes had been hidden / erased / concealed by the defendant Nos.1 and 2, to the extent possible. The aforesaid facts which have been pleaded in the plaint and also admitted by the defendant Nos.1 and 2 clearly establish the cause of action which has led to the filing of the suit in the present case.

37. That apart, it is stated by Mr. Singh that all allegations made by the defendant Nos.1 and 2, that the plaintiff is not the owner of the copyright, merit no indulgence when the defendant Nos.1 and 2 have not even filed its written statement in the suit. Even the other allegations made by the defendant Nos.1 and 2 are entirely impermissible in an application purportedly filed under Order VII Rule 11 CPC.

38. On the plea taken by Mr. Lall that DPS, R.K. Puram is a necessary party, it is submitted by Mr. Singh that Delhi Public School, R.K. Puram, Delhi is neither a proper nor a necessary party with respect to the Lis, Cause ofion and the Reliefs prayed in the present suit. Without prejudice to the foregoing, he submitted that non-joinder of necessary parties is not a ground available under Order VII Rule 11 CPC. Any such application at this stage under Order I Rule 9 CPC would not deserve to be entertained. It is only during the trial that the court would consider any such application, also having regard to the power available to the Court under Order I Rule 10 CPC. He reiterated that it is settled law that non-joinder of necessary party is not a permissible ground for rejection of a plaint under Order VII Rule 11 CPC. The application filed by the defendants under Order VII Rule 11 CPC deserves to be rejected on this ground as well.

39. He reiterated that having regard to the aforesaid wellsettled principles of law, passing off is an independent and separate cause of action set up by the plaintiff. The averments have been made in paras 35-39 and prayer (b) in the plaint is in relation to this independent and separate plea. In view of the settled principles of law, the said averments clearly set out in the plaint would be assumed to be correct and, in any case, in the facts of the present case, are correct. The application under Order VII Rule 11 CPC deserves to be rejected.

40. It is submitted by him that in accordance with the principles of law laid down by the Apex Court in this behalf, this Court vide its order dated June 11, 2020, observed that the plaintiff has been able to make out a prima facie case and even the balance of convenience is in favour of the plaintiff, and granted an interim injunction, inter alia, restraining defendant Nos.1 to 3 from in any manner reproducing, publishing, copying or in any manner utilizing the hand written notes i.e. the literary works of the plaintiff including hand written or other verbatim or substantial copies thereof across all their platforms on any websites including those mentioned in the list of web links filedalong with the plaint.

41. It is also contended by Mr. Singh that, inter alia, in para 25 of the plaint, the plaintiff has clearly asserted his authorship as well as ownership of copyright under Section 17 of theof 1957. This assertion of the plaintiff, when considered with the fact that the defendants have admitted that the notes were authored by the plaintiff and have also admitted that the defendants had used the notes on their platforms while claiming them to be the defendants notes - is sufficient to establish the infringement of copyright as well as the moral rights of the plaintiff.

42. On the plea taken by defendant Nos.1 and 2 raising certain contentions in relation to Section 17(c) of theof 1957, Mr. Singh submitted the same would not have any relevance at this stage when this Court is dealing with an application under Order VII Rule 11 CPC.

43. It is also stated by him that it is neither the duty nor the obligation of the plaintiff under the terms of his employment as a teacher to create any such notes and / or to provide his handwritten notes to the students. Universally, the only duty / obligation as a school teacher is to give oral teaching to the students. Firstly, as submitted on behalf of the plaintiff in the plaint, the notes have been created by the plaintiff through his own hard work and effort, for helping the students. The handwritten notes of the plaintiff are only meant for personal use by the students. None of the provisions of DSE Act nor any of the Rules made thereunder create any kind of “bar” on the plaintiff from filing the present suit highlighting the blatant violation and infringement of his rights by the defendants under the copyright law as well as common law etc.

44. Further, according to him the plaintiff has also separately pleaded and established the infringement of his moral rights under Section 57 of theof 1957, in so much as concealing/mutilating/erasing the plaintiffs name when infringing upon his work. It is settled law that moral rights vest in the author of the work and they are independent of the copyright. Moral rights protect the claim of authorship of the author. Reliance is placed on the judgment passed by this Court in Smt. Mannu Bhandari v. Kala Vikas Pictures Pvt. Ltd. & Anr., ILR (1986) 1 [LQ/PunjHC/1985/991 ;] ">ILR (1986) 1 [LQ/PunjHC/1985/991 ;] [LQ/PunjHC/1985/991 ;] Del 191

45. Thus, according to Mr.Singh, when it is admitted that the plaintiff is the author of the notes and that the defendant No.1 has misused the notes while also claiming them to be his notes - the infringement of the moral rights of the plaintiff is clearly established. He submitted that the facts of the present case and the admissions made by the defendants clearly establish the infringement of copyright, special rights under Section 57 of theof 1957 as well as passing off the plaintiffs notes as their own. According to him, in view of the aforesaid facts and circumstances of the present case, the interim order dated June 11, 2020 deserves to be confirmed by orders of this Court and the application under Order VII Rule 11 CPC being IA. 4979/2020 is liable to be dismissed.

46. Mr. Lall, on the plea of the plaintiff infringing his rights under Section 57 of theof 1957, submitted that the defendant No.1 has never claimed ownership of the Chemistry notes, which is apparent from the screenshots filed by the plaintiff of the defendant No.1s YouTube channel.

47. Even otherwise, defendant No.1 has not committed the acts of removal of the signatures with the intention of claiming the notes to be his. He further submitted that the notes have been scanned from a mobile phone; wherein certain signatures have inadvertently not been captured in the camera. Even otherwise, such inadvertent act of not displaying signatures of the plaintiff does not amount to a violation of Moral Rights of the plaintiff in view of the explanation in Section 57 of theof 1957, which reads as under:

“Explanation. Failure to display a work or to display it to the satisfaction of the author shall not be deemed to be an infringement of the rights conferred by this section.”

48. Mr. Lall had submitted that therefore, the Chemistry notes, as alleged by the plaintiff to have been scanned and copied verbatim, cannot amount distortion, mutilation, modification or any such acts as defined under Section 57(1)(b) of theof 1957. Hence, there is no violation of the moral rights of the plaintiff under Section 57 of theof 1957 and the plaintiff is not entitled to any of the reliefs as mentioned under Section 57(1)(b) of theof 1957. (Ref: Amar Nath Sehgal v. UOI, 117 (2005) DLT 717 [LQ/DelHC/2005/1673] ; Raj Rewal (supra); and Manu Bhandhari v. Kala Vikas Pictures Pvt. Ltd. & Anr. 30 (1986) DLT 502 [LQ/DelHC/1986/109] ).

49. On the plea of the defendants that the plaintiff has deliberately given wrong email IDs in the cause title despite being aware of the correct email IDs, Mr. Singh has drawn my attention to the various screenshots of the webpages of defendant Nos.2 and 3 to oppose the plea.

50. Having heard the learned counsel for the parties and perused the record, at the outset, I may state, that by this order, I shall deal with the application filed by the defendant Nos.1 and 2 under Order VII Rule 11 CPC being I.A. No.4979/2020. The submissions of Mr.Lall in support of the application are the following:

"(i) The author in relation to a literary work is the author of the work whereas the first owner of the copyright in a literary work made during the course of authors employment under a contract of service is the employer of the author, in absence of any agreement to the contrary.

(ii) In view of the case of the plaintiff that he is a chemistry teacher employed by the DPS since the year 1991 and teaching classes 11th and 12th ; the chemistry notes, the subject matter of the present suit were prepared in the year 1994 to help the students to prepare better and do well in exams ; the notes contains various topics of chemistry which are part of syllabus and are updated to keep the same abreast with time, it is apparent that the chemistry notes have been created by the plaintiff during his course of employment under a contract of service with the school.

(iii) The plaintiff has not shown a contract with the school permitting him to make notes outside of his employment. The plaintiff being an employee of school is governed by the code of conduct i.e. Delhi School Education Act and the Rules made thereunder which bars a teacher from engaging in any employment outside school including taking private tuition.

(iv) Any tuition / coaching given by the plaintiff as claimed in the plaint has to be within the ambit of the Delhi School Education Act and rules.

(v) So, the notes prepared by the plaintiff which are subject matter of the suit could only have been prepared for class 11th and 12th students during the course of his employment with DPS.

(vi) The present suit is barred by law owing to the fact that the plaintiff is not the owner of the copyright in issue and has no right to file the present suit and also plaintiff has not impleaded the owner of the copyright, i.e., the school, which is a necessary party to the suit. This is in view of Sections 55 and 61 of the Copyright Act, 1957 which contemplates that it is the owner of copyright who can sue for infringement or be made party to the suit for infringement of the copyright."

51. The aforesaid submissions of Mr. Lall are not appealing. It is settled position of law that while considering an application under Order VII Rule 11 CPC the Court is required to see the averments in the plaint to find out whether it discloses a cause of action or whether the suit is barred under any law. (Ref: P.V. Guru Raj Reddy (supra). In the present case a reading of the plaint as a whole would also reveal the following averments:

“2. The Plaintiff is a well-known and reputed teacher of Chemistry for Class 11 and 12, with over thirty years of experience in the field. He works for gain at Delhi Public School, R.K. Puram, New Delhi (hereinafter referred to as DPS R.K. Puram), one of Indias premier schools. The Plaintiffs teaching method includes oral lecture style / classroom teaching along with tuition classes outside school hours involving supplemental lectures with his extensive handwritten notes. The Plaintiff has carefully, diligently and methodically curated the handwritten notes over a period of years, and the notes are an accumulation of a carrier-long experience in teaching.

3. The notes have been created by the Plaintiff in an effort to reduce the time usually spent by students in reading lengthy books, by explaining the most relevant concepts in a manner which is easy to understand and relatively quick for average students to grasp. As students pursuing senior secondary education often prepare for competitive exams alongside their school curriculum, the Plaintiffs notes help reduce the burden on students. These notes are thus meant only for personal use by the Plaintiffs students, to assist them in learning and understanding chemistry, and for helping them prepare for examinations. The notes do not form a part of the school curriculum, and are supplementary to the course material. Some illustrative samples of the notes are being placed on record.

12. For some students who whish to prepare for IIT-JEE, the notes have been customized to contain more information than regular course work for Class 11 and 12 textbooks. This aids and enables students to prepare for the IIT-JEE examination along with their regular coursework for school and / or the Board exams.”

(emphasis supplied)

52. The aforesaid averments in the plaint do reveal the following:

"a. The plaintiffs teaching method includes classroom teaching and tuition classes outside school hours with extensive hand written notes.

b. The notes do not form a part of the school curriculum and are supplementary to the course material.

c. The notes includes information for some students who wish to prepare IIT JEE which is more than regular course work for class 11 and 12 textbooks"

53. On a reading of the averments in the plaint as a whole and proceeding on the basis that the averments made therein are correct, it can be seen that it is the case of the plaintiff that he is carrying out classroom teaching and teaching beyond the school hours and the notes prepared are not confined to curriculum but also information beyond the curriculum for the students undertaking IIT JEE exams. In other words, the plaintiff is teaching / undertaking tuition / imparting education beyond the permissible limits of a teacher in the school and if the copyright of the plaintiff with regard to information beyond curriculum, make the plaintiff the owner of copyright in the notes to that extent he would be within his right to challenge infringement. Whether the notes are beyond the curriculum and pertains to IIT JEE exam, on which the plaintiff can claim ownership are issues which are the subject matter of trail/ evidence. The defendants stand in their application on the applicability of DSE Act and Rules made thereunder would altogether be irrelevant for deciding the application under Order VII Rule 11 CPC. (Sopan Sukhdeo Sable & Ors. v. Assistant Charity Commissioner & Ors. (2004) 3 SCC 137 [LQ/SC/2004/107] ; Saleem Bhai and Ors. v. State of Maharashtra and Ors. AIR 2003 SC 759 [LQ/SC/2002/1340] ; Ganpati Infrabuild Pvt. Ltd. v. Sudarshana Duggal & Ors.,)

54. The counsel for the plaintiff is justified in relying upon the following judgments in support of his contention that the application filed under Order VII Rule 11 CPC in view of the averment made in the plaint is unsustainable. I may refer to one judgment in the case of P.V. Guru Raj Reddy (supra), wherein in paras 5 and 6 the Supreme Court held as under:

"5. Rejection of the plaint under Order 7 Rule 11 of CPC is a drastic power conferred in the court to terminate a civil action at the threshold. The conditions precedent to the exercise of power under Order 7 Rule 11, therefore, are stringent and have been consistently held to be so by the Court. It is the averments in the plaint that have to be read as a whole to find out whether it discloses a cause of action or whether the suit is barred under any law. At the stage of exercise of power under Order 7 Rule 11, the stand of the defendants in the written statement or in the application for rejection of the plaint is wholly immaterial. It is only if the averments in the plaint ex facie do not disclose a cause of action or on a reading thereof the suit appears to be barred under any law the plaint can be rejected. In all other situations, the claims will have to be adjudicated in the course of the trial.

6. In the present case, reading the plaint as a whole and proceeding on the basis that the averments made therein are correct, which is what the Court is required to do, it cannot be said that the said pleadings ex facie disclose that the suit is barred by limitation or is barred under any other provision of law. The claim of the plaintiffs with regard to the knowledge of the essential facts giving rise to the cause of action as pleaded will have to be accepted as correct. At the stage of consideration of the application under Order 7 Rule 11 the stand of the defendants in the written statement would be altogether irrelevant.”

55. Similarly, a Coordinate Bench of this Court in CNH Industrial (India) Pvt. Ltd. (supra) has in paras 12 to 18 held as under:

“……… 12. The settled legal position is that for the purpose of adjudication of an application under Order 7 Rule 11 CPC, the court has to only look at the plaint and presume that the averments made in the plaint are correct.

13. Reference may be had to the judgement of this court in Tilak Raj Bhagat v. Ranjit Kaur, 2012 (V) AD (Delhi) 186 which held as follows:-

5. It may be worthwhile to mention here that while considering an application under Order 7 Rule 11 CPC, the Court has to look at the averments made in the plaint by taking the same as correct on its face value as also the documents filed in support thereof. Neither defence of the defendant nor averments made in the application have to be given any weightage. Plaint has to be read as a whole together with the documents filed by the plaintiff.”

14. To the same effect are the judgments of the Division Bench of this Court in the case of Indian City Properties Ltd. v. Vimla Singh 198 (2013) DLT 432 [LQ/DelHC/2013/338] and in the case of Inspiration Clothes & U v. Collby International Ltd., 88 (2000) DLT 769.

15. Reference may also be had to a judgment of the Supreme Court in the case of Hardesh Ores Pvt. Ltd. v. Hede and Company, (2007) 5 SCC 614 [LQ/SC/2007/699] : 2007 (7) SCALE 348 [LQ/SC/2007/699] , noted as follows:

“21. The language of Order VII Rule 11 CPC is quite clear and unambiguous. The plaint can be rejected on the ground of limitation only where the suit appears from the statement in the plaint to be barred by any law. Mr. Nariman did not dispute that “law within the meaning of clause (d) of Order VII Rule 11 must include the law of limitation as well. It is well settled that whether a plaint discloses a cause of action is essentially a question of fact, but whether it does or does not must be found out from reading the plaint itself. For the said purpose the averments made in the plaint, in their entirety must be held to be correct.”

16. Hence for the purpose of considering an application under Order 7 Rule 11 CPC only the averments made in the plaint have to be taken presuming them to be correct on the face of it along with the documents filed in support of the plaint.

17. In my opinion, in the present case if it is presumed that the averments are correct, it cannot be said that the suit is filed without any cause of action. A clear cause of action in terms of Section 17 of the Copyright Act is spelt out.

18. That apart, the suit is filed seeking multiple reliefs including the relief of permanent injunction for passing off of the trade dress. There is no plea raised that this plea in the plaint also attracts Order 7 rule 11 CPC. It is well established that a plaint cannot be rejected in part by a civil court, while exercising its powers under Order 7 Rule 11. The rule was enunciated in Roop Lal Sathi v. Nachhattar Singh Gill, (1982) 3 SCC 487 , [LQ/SC/1982/156] where it was held by the Supreme Court that only a part of the plaint cannot be rejected and if no cause of action is disclosed, the plaint as a whole must be rejected. The relevant para noted as follows:

27. …………… Where the plaint discloses no cause of action it is obligatory upon the Court to reject the plaint as a whole under Order VII, Rule II (a) of the Code, but the rule does not justify the rejection of any particular portion of a plaint: Mulla's Civil Procedure Code, 13th Edn., Vol. 1, p. 755…….”

(Emphasis Supplied)

56. That apart, it is also a settled position of law that a plaint cannot be rejected in part (Roop Lal Sathi v. Nachhattar Singh Gill, (1982) 3 SCC 487 [LQ/SC/1982/156] ; Sameena Abidin v. Zubair ul Abidin & Ors, 202 (2013) DLT 251 [LQ/DelHC/2013/1739] ). The plaint can either be rejected completely or not at all. There is no dispute that the plaintiff has filled the case seeking various reliefs including infringement of copyright. In so far as filing of the application under Order 1 Rule 9 CPC is concerned, Mr. Singh is right to contend the ground of non-joinder of parties is not available in an application under VII Rule 11 CPC.

57. In view, of my above conclusion that, a plaint cannot be rejected in part, the issue raised and the judgments cited are not required to be considered at this stage. The said issues are to be decided finally on the basis of issues framed and evidence led in that regard. I do not see any merit in the application. The same is dismissed.

IA 4681/2020

58. This is an application filed by the plaintiff under Order 39 Rule 2A read with Section 151 CPC and Section 12 of the Contempt of Courts Act, 1971, primarily against defendant No.4 and its functionaries alleging violation of order dated June 11, 2020.

59. By the said order, this Court had restrained the defendant Nos.1 to 3, their agents, employers, tutors, teachers, associates from in any manner, reproducing, publishing, copying, utilizing the hand-written notes, i.e. the literary works of the plaintiff, including handwritten or other verbatim and / or substantial copies thereof, either in the printed form or in the electronic form, across all the defendants platforms including defendant No.4 (YouTube / Google Drive), defendant No.5 (Instagram) and on any websites including those mentioned in the list of web links filed along with the plaint, or in any manner, reproducing or publishing the works either in part, or in whole so as to constitute the acts of infringement of copyright and moral rights. This Court had also said that in the eventuality, the defendant Nos.1 to 3 do not remove the works of the plaintiff, the plaintiff shall be within his right to draw the attention of the defendant Nos.4 to 6 giving the details of the URL of the content on which the infringing material is put / exist, who on receipt of such details, shall remove the infringing material within 48 hrs.

60. It is the case of the plaintiff that he has duly complied with the order and had served the URLs on the defendant Nos. 1 to 3 but defendant Nos. 1 to 3 failed to comply with the order inasmuch as, they have failed to remove / delete / take down the infringing content. In accordance with the directions of this Court, the plaintiff sent the list of URLs containing the infringing contents to the defendant No.4 and its counsel. However, to the surprise of the plaintiff, the defendant No. 4 replied to the email sent by the plaintiffs counsel, inter alia, stating that the list of URLs shared contains huge number of URLs that have totally unrelated content, not subject matter of the suit.

61. It is the case of the plaintiff in this application, there is an obligation imposed by this Court to place a copy of the list of URLs on the record of this Court and it was abundantly made clear that the defendant No.4 shall carry out taking down of the content mentioned in the list of URLs to be provided by the plaintiff. There have been no ambiguity of any kind whatsoever in this behalf. By the said email, the defendant No.4 impermissibly sought to constrict the ambit of the order, inasmuch as the order dated June 11, 2020 directed the defendants including defendant No.4 to remove all URLs containing any reference to the scanned notes and restrained them from utilizing the notes in any manner. The email dated June 16, 2020 demonstrate complete disregard to the order dated June 11, 2020 passed by this Court. It is stated that the defendant No.1 contacted the plaintiff and stated that he is taking steps to remove the infringing content from all such websites / platforms. It has come to the knowledge of the plaintiff that the defendant No.1 has so far removed / taken down the content from a significant number of links, which clearly demonstrates gross contempt committed by the defendant No.4 by refusing to take down such links, even when the defendant No.1 itself is acknowledging that such links contain the infringing content. The plaintiff, once again contacted the defendant No.4 to comply with the order dated June 11, 2020 by removing / deleting / taking down the content from the list of URLs, which was once again shared with defendant No.4 by way of an email dated June 17, 2020 sent on behalf of the plaintiff. The said communication contains list of URLs, which refers to the plaintiffs copyrighted works that have been uploaded unlawfully through methods that include verbal speech, written text, descriptions, written comments, liked comments, pop-up text or introductions, and like allusions.

62. It is also stated that instead of complying with the order dated June 11, 2020 in letter and spirit, the defendant No.4 has filed an application seeking urgent directions from this Court to the plaintiff to comply with the order dated June 11, 2020. The said application is only ruse to continue not to comply with the directions of this Court.

63. I may state here, the application filed by the defendant No.4, IA 4655/2020 has the following prayers:

“In view of the aforesaid, it is most humbly prayed that this Honble Court be pleased to:

i. Direct the Plaintiff to file a proper and correct list of URLs in accordance with the order dated 11.06.2020, restricted only to those URLs that contain content infringing the copyright of the Plaintiff, i.e. Plaintiffs handwritten chemistry notes, along with transcripts/screenshots etc, explaining the nature of alleged violation so as to enable this Honble court to determine, whether the same constitute copyright infringement;

ii. Pass appropriate directions, once the correct list of URLs as per order dated 11.06.2020 has been placed on record;

iii. Pass any further order(s) that this Honble Court deems fit and proper in the facts and circumstances of the present case.”

64. Suffice to state, no notice on the applications, being IA 4681/2020 and IA 4655/2020 has been issued by this Court. Hence, reply to the said applications are not forthcoming. I must also take a judicial notice of the fact that a reply has been filed by the defendant Nos. 1 and 2 to the application under Order 39 rule 1 & 2 CPC wherein the defendants have taken a stand that the subject matter of the suit i.e. the notes have been removed from all the channels of the defendant No.1. That the list shown by plaintiff does not contain any infringing material and that at the most 2-3 videos may only show a link to the page where the infringing video was uploaded. That as the videos which showed the infringing material have been removed. That the links or the description of these links also do not contain any mention of the plaintiffs name or the mention of plaintiffs notes. That by only describing the tag given to these links as “Chemistry Notes” do not violate any rights of any party.

65. The aforesaid show, that the applications being IA 4681/2020 and 4655/2020 are interlinked inasmuch as the parties, i.e., the plaintiff, defendant No. 4 and even the defendants Nos. 1 and 2 are taking a stand, at variance with each other. It has to be decided whether, the order dated June 11, 2020 has been complied with, in a manner there is no infringement of copy right in the work of the plaintiff. A decision on this application must necessarily has to be along with IA. 4655/2020 filed by defendant No. 4 and may also be with IA 5064/2020 filed by defendant Nos. 1 and 2 for vacation of stay order Under Order XXXIX Rule 4 CPC, which applications are still pending consideration.

66. So, I direct the Suit and all pending applications shall be listed before Roster Bench on July 8, 2021. Interim order to continue.