ORDER:

(Per the Hon’ble the Chief Justice Alok Aradhe)

Mr. A.P.Suresh Ram, learned counsel for the petitioner.

Mr. Ashok Ram Kumar, learned counsel representing Ms. Sheela Nateshan, learned counsel for the respondent.

2. With consent of learned counsel for the parties, the matter is heard finally.

3. In this petition under Article 227 of the Constitution of India, the petitioner has assailed the validity of the order dated 10.06.2024 passed by the Principal Special Court in the Cadre of District Judge for Trial and Disposal of Commercial Disputes at Hyderabad (hereinafter referred to as ‘the Commercial Court’), by which the application filed by the petitioner under Order VII Rule 11(d) of the Code of Civil Procedure, 1908 (hereinafter referred to as ‘CPC’) namely I.A.No.549 of 2023 seeking rejection of plaint in COS.No.13 of 2023 has been rejected.

4. Facts giving rise to filing of this petition briefly stated are that the respondent had filed a suit seeking the relief of declaration and non-infringement of the copyrights along with a prayer for permanent injunction against the petitioner from interfering with the business of the respondent. During the pendency of the suit, the petitioner filed an application under Order VII Rule 11(d) of CPC for rejection of the plaint on the ground that the petitioner has filed a substantive suit under Section 55 of the Copyright Act, 1957 (hereinafter referred to as ‘the Act’) before the High Court of Bombay for infringement of the copyright. It was therefore contended that in view of proviso to Section 60 of the Act, the suit is not maintainable. The learned Judge of the Commercial Court has rejected the aforesaid application. Hence, this petition.

5. Learned counsel for the petitioner while inviting the attention of this Court to paragraphs 20 and 21 of the impugned order dated 10.06.2024 passed by the Commercial Court submits that the Court has recorded a finding that it cannot decide whether the suit filed by the respondent is under Section 52 or Section 60 of the Act, which was the issue raised before the Commercial Court. It is submitted that from perusal of the impugned order, it is evident that the Commercial Court has failed to exercise the jurisdiction vested in it by law.

6. On the other hand, learned counsel for the respondent has supported the order passed by the Commercial Court.

7. We have considered the submissions made on both sides and have perused the record.

8. According to the petitioner, the suit filed by the respondent cannot be proceeded in view of proviso to Section 60 of the Act. However, the case of the respondent is that the suit filed by it is under Section 52 of the Act and not under Section 60 of the Act. The issue with regard to the suit being barred was raised by the petitioner in an application on the strength of proviso to Section 60 of the Act. In order to decide the aforesaid application, the Commercial Court has necessarily to decide whether the suit filed by the respondent is one under Section 52 or Section 60 of the Act. Therefore, it is evident that the Commercial Court has refused to exercise the jurisdiction vested in it by law. The order suffers from jurisdictional infirmity and an error apparent on the face of the record.

It is therefore set aside.

9. The Commercial Court is directed to decide the application filed by the petitioner under Order VII Rule 11 CPC afresh after hearing the parties by a speaking order. Needless to state that it is open for the parties to raise all such contentions as may be available to them in law including the one that the respondent has no authority to file a suit under Section 52 of the Act. It is made clear that this Court has not expressed any opinion on merits of the case.

10. Accordingly, the Civil Revision Petition is disposed of.

Miscellaneous petitions, pending if any, shall stand closed. There shall be no order as to costs.

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ALOK ARADHE, CJ _______________________________

J.SREENIVAS RAO, J