The main legal point established is that the matter did not involve copyright infringement and was a continued breach of contract, leading to the dismissal of the original petition.

B. Kemal Pasha, J.

1. Can an order on which a Civil Miscellaneous Appeal is provided, be challenged under Article 227 of the Constitution of India, without filing an appeal? Whether the matter involved herein is one coming under Section 62 of the Copyright Act? Can the matter involved in the suit be considered as an 'excepted matter' from Arbitration? Ext. P5 order passed under Order XXXIX Rule 1 of the Code of Civil Procedure, 1908 (for short 'the Code') is under challenge. The brief facts disclose that through a contract entered into between the petitioner and the respondent, vide Ext. P1 agreement dated 01/02/2011, the respondent herein has developed a software as demanded by the petitioner herein. Payments were also stipulated, as per the schedule appended with it. It is alleged that, to the utter dismay of the respondent, the petitioner has stopped payment, thereby the respondent was forced to direct the petitioner to stop further use of their software and they have also stopped providing man power, by way of service. As the petitioner herein continued to make use of the software as against the ultimatum given by the respondent, the present suit has been filed. The IA has been filed by the plaintiff seeking an order of temporary injunction in the suit thereby restraining the petitioner and their men and agents from using the software in violation of clause 15.3 read with clause 9.1 to 9.3 of Ext. P1. It seems that after hearing both sides, the Court below has chosen to allow the said IA through Ext. 5 order.

2. Heard the learned Senior Counsel for the petitioner Sri. P. Santhalingam and the learned Senior Counsel for the respondent Sri. E.K. Nandakumar.

3. A counter has been filed in the matter by the respondent challenging the maintainability of this original petition. It is contended that the original petition is not maintainable as the petitioner has failed to file an appeal by way of CMA as provided under Order XLIII Rule 1(r) of the Code. It is also contended that the stand taken by the petitioner, that the Court below has no jurisdiction to entertain the matter, as the matter is one coming under Section 62 of the Copyright Act, is also devoid of merits.

4. The learned Senior Counsel Sri. P. Santhalingam has argued that the matters in controversy in the suit are squarely falling within the purview of Sections 51 and 62 of the Copyright Act and therefore, the suit ought to have filed before the District Court, Thiruvananthapuram, which alone has jurisdiction in the matter. It is also argued that the output from the software is a computer product, and it is nothing but an intellectual property, and in such case also the Court below has no jurisdiction to entertain the suit. It is further argued that the matter involved in the suit is not an 'excepted matter' from arbitration and therefore, in view of clause 24.5 of Ext. P1, the respondent ought to have made recourse to arbitral proceedings under the Arbitration and Conciliation Act, if at all the respondent is in any manner aggrieved.

5. In order to decide the maintainability of the present OP, it has to be decided whether the Court below has exceeded its jurisdiction or the Court below has committed any jurisdictional error in passing Ext. P5 order. The next question is whether this is a matter coming within the purview of Sections 51 and 62 of the Copyright Act of 1957? It has also to be considered whether a suit of this nature is an 'excepted category' from arbitration and whether such exception can be resorted to without specifying an adjudicatory method for settling the matters in controversy in a suit like this.

6. The learned Senior Counsel for the respondent has pointed out that the Copyright Act, 1957 has no application in the matter as the respondent has no case that their copyright over the software has been in any way infringed. Per contra, the learned Senior Counsel for the petitioner has argued that the attempt from the part of the respondent to restrai