Delhi High Court: V. Kameswara Rao, J., dismissed the present petition in respect to the appearance of Nitish Kumar, Chief Minister of Bihar, as a witness in the copyright infringement matter regarding the violation to authorship rights of the literary work titled as “Special Category Status: A Case for Bihar”.
Facts leading to contentions stated below
Plaintiff was a Senior Research Scholar pursuing his Ph.D. programme in Economics at Jawaharlal Nehru University. Plaintiff registered for his Ph.D. in July 2006 after successfully completing his Masters in Arts and M.Phil. Topic of his thesis was “Role of State in Economic Transformation: A case study of Contemporary Bihar”.
Defendant 2 came to know about plaintiff’s research work through plaintiff’s guide and when the plaintiff was in Bihar for his research work, defendant 2 approached the plaintiff and made a request that while doing his own survey, if the plaintiff could fill up certain additional forms relating to “Bihar State Land Reform Commission’s research work” then in return the defendant 2 would take care of the expenses of plaintiff’s field work on actual basis.
Defendant 2 being aware of the plaintiff’s research area, suggested to the plaintiff that his personal research could be used for supporting the cause of Bihar and requested the plaintiff to give his study/research material which would be used to support the PIL pending in the Patna High Court.
Trusting defendant 2 and in the larger public interest, the plaintiff gave his research work in soft copy to defendant 2.
Later, when the plaintiff was in Delhi, he was shocked by reading newspaper reports wherein it was stated that “the original work of the plaintiff” viz. “Special Category Status: A Case for Bihar” was being published by ADRI and the Centre for Economic Policy and Public Finance as a book authored by Bihar Chief Minister, Nitish Kumar.
Plaintiff submits that witness 1 in Part C of his list of witnesses which was also served to the defendants was Nitish Kumar, present Chief Minister of Bihar. He is also defendant 1 in the present suit.
According to the plaintiff, the said witness is significant and will have a material impact in establishing the case of the plaintiff with regard to the violation to authorship rights of the literary work titled as “Special Category Status: A Case for Bihar” in which the defendant 1 is the principal actor.
Plaintiff further submits that though the witness is also defendant 1, there is no bar under the CPC to examine the opposite party as his own witness, more particularly when defendant 1 is included in the list of witnesses.
Senior Counsel, P.D. Gupta representing defendant 1, opposed the prayer on the ground that application preferred by the plaintiff is barred by limitation under Order 16 Rule 1 itself. He also submitted that the present application is an abuse of process inasmuch as Nitish Kumar/defendant 1 can be cross-examined by the plaintiff at his evidence stage.
Cases relied on by the plaintiff in support of his contentions
Plaintiff by contending that there is no bar on the right of a party to summon or examine another party including the opposite party to give evidence as his witness under CPC, had relied upon a judgment of the Karnataka High Court in the case of Syed Yasin v. Syed Shaha Mohd. Hussain, AIR 1967 KANT 37.
Plaintiff, along with a list of cases, relied on a Supreme Court Judgment in Kokkanda B. Poondacha v. K.D. Ganapathi, (2011) 12 SCC 600, wherein it was held that,
“oblique motives of parties should be looked into by the Court while deciding application for summoning of witnesses under Order 16 Rule 1.”
Karnataka High Court Judgment in Krithi Constructions v. K. Thippa Reddy, ILR 20156 Kar 122, was also relied on, in which it was held that,
“Though it is true that the party to the suit can examine another party to the suit as a witness, such procedure has to be permitted in rarest of rare cases”
High Court’s analysis and observation
Court noted that the dispute in the suit is whether the defendants have violated the copyright in the original work of the plaintiff. The witness Nitish Kumar is defendant 1 in the case. Issues that were framed in the suit were:
- Whether the plaintiff is the owner of the copyright in the work “Special Category Status: A Case for Bihar” and if so, whether the defendants are infringing the copyright of the plaintiff?
- Whether the plaintiff is entitled to damages, if so, of what amount? 3.
- Whether the work “Special Category Status: A Case for Bihar is a Government publication of the defendant no. 4 and accordingly whether the defendant no. 4 is entitled to relief filed in its counter claim against the plaintiff?
The Court stated that it is clear from the facts and circumstances of the case that on Issue 1, the onus is on the plaintiff to prove that he is the owner of the copyright. Vide the written statements the defendants are contesting the said position and the stand is at variance.
It was further stated that,
Each of the parties shall have to enter the witness box to prove his case. The opposite party shall naturally cross-examine the party in the witness box. So it follows, that defendant 1, coming as a witness, shall in his evidence make good the stand taken by him in his written statement. He shall not prove the case of the plaintiff.
Thus the reasoning of the plaintiff calling defendant 1 as a plaintiff’s witness being so-called “principal actor” and a bona fide act is not convincing.
Hence in the Court’s opinion, the present application was filed only to put pressure on the Chief Minister of State of Bihar as he was being summoned, not in the normal course, but as plaintiff witness without cogent reason as such is not bona fide nor in the interest of justice.
In the above view, the present application has been dismissed. [Atul Kumar Singh v. Nitish Kumar, 2019 SCC OnLine Del 11084, decided on 13-11-2019]