The appointment of a Local Commissioner in software infringement and piracy matters is intended to preserve and protect the infringing evidence, and the single Judge is bound by the decision of the Division Bench of the same High Court.

MANMOHAN SARIN, J. :- This appeal has been preferred by the appellants aggrieved by the order dated 5th March, 2008 passed by the learned single Judge, dismissing I. A. No. 2852/2008 praying for appointment of a Local Commissioner ex parte.

2. The appellants are the owners of copyright in world famous software 3DS Max and Autodesk Maya. Appellants finding infringement and unauthorized use of their software, filed a suit against the respondents for permanent injunction to restrain infringement of copyright, delivery up, rendition of account of profits and damages etc. for unlicensed usage of their software. The suit was accompanied with an application for interim injunction and application for ex parte appointment of Local Commissioner being I.A. No. 2852/2008. Summons in the suit were issued and notice in the IA under Order 39, Rules 1 and 2, C. P. C. was issued. However, the application for appointment of a Local Commissioner was dismissed by the impugned order against which the present appeal has been filed. While issuing notice in the appeal, we also appointed ex parte Local Commissioner to visit the premises of the respondents to make out an inventory of the unlicensed software belonging to appellant No. 1 found to be in use by respondent. Local Commissioner was also permitted to take into custody the Central Processing Units (CPUs), Floppy Discs/DVDs and take the assistance of representatives of the appellants and their technical expert. Reasons for appointing Local Commissioner ex parte, pending notice in the appeal are duly recorded in our order dated 10th March, 2008.

3. Report of the Local Commissioner has since been received. He found incriminating evidence of unlicensed software being used and took possession of the same. There have been negotiations thereafter between the appellants and respondents. We were finally informed on 26th May, 2008 of proposed settlement filed before the learned single Judge, copy of which has also been tendered before us.

4. Accordingly, for all practical purposes with the appointment of Local Commissioner pending notice in appeal and the execution of the commission, the grievance against the impugned order stands redressed and relief granted. However, the appellant and contesting respondent both urged before us that in view of divergent views and orders being passed by single Benches on the request for appointment of Local Commissioner in cases of infringement of copy right in computer software and of piracy, it was of critical importance that the Division Bench lays down guidelines for exercise of discretion in such matters. Accordingly, we in our order dated 10th March, 2008, while appointing Local Commissioner indicated that we proposed to lay down the guidelines for exercise of discretion. Appellant and respondent have been heard on this aspect and suggested guidelines filed by them perused.

5. We now proceed to deal with the appeal on merits and are taking the present case as an illustrative one for the purpose of laying down the guidelines.

6. Appellant-Autodesk Incorporates while seeking appointment of Local Commissioner had pleaded that they were the owners of the world famous software 3DS Max and Autodesk Maya having copyright therein. The said software had attained international acclaim for being a pioneer in designing and in animation programmes. Appellant had filed a suit inter alia for infringement of the copyright, rendition of account, damages of Rs. 20 lacs in which as noted above, a settlement has been arrived at.

The appellant claim to have authorized and granted a single licence to the respondent-Media Factory India Pvt. Ltd. for use of software 3DS Max. The alleged use of software in 29 other computers by the respondent was unauthorized and infringement of copyright. No licence had been granted for the software Autodesk Maya. Appellant had sought an ex parte injunction in which notice had been issued. The appointment of a Local Commissioner ex parte was sought on