Compendiously and concisely, the relevant facts which are absolutely necessary and germane for the disposal of these applications would run thus:
(a) The plaintiffs filed the suit C.S.No.973 of 2009 seeking the following relief:
- For a decree of permanent and prohibitory injunction restraining the defendants/its agents and attached cable operators, head-ends, anyone taking link from them, and their partners or proprietors as the case may be, their officers, servants, agents and representatives, franchisees, head-ends and all others in capacity of principal or agent acting for an on their behalf from in any manner violating and infringing the Broadcast Reproduction Rights as well as the Copyright in the programmes telecast by the first plaintiff by illegally tapping/receiving/recording the signals of Sun TV, K TV, Sun Music, Sun News, Gemini TV and Teja TV and transmitting/telecasting the same or communicating the same to their cable operators, customers/subscribers/end users, without the permission, license or consent of the plaintiffs; and for costs.
(b) The same plaintiffs filed the following application seeking the following reliefs:
- O.A.No.1119 of 2009 has been filed to pass an order of interim prohibitory injunction restraining the respondents/its agent and attached cable operators, head ends, anyone taking link from them, and their partners or proprietors as the case may be, their officers, servants, agents and representatives, franchisees, head ends and all others in capacity of principal or agent acting for and on their behalf from in any manner violating and infringing the Broadcast Reproduction Rights as well as the copyright in the programmes telecast by the first applicant by illegally tapping/receiving/recording the signals of Sun TV, K TV, Sun Music, Sun News, Gemini TV and Teja TV and transmitting/telecasting the same or communicating the same to their Cable Operators, customers/subscriber/end users, without the permission, license or consent of the applicants .
- A.No.5778 of 2009 has been filed by D1 to reject the suit under Order VII rule 11 (d) CPC in view of the statutory bar contained under
Sections 15 and
27 of the Telecom Regulatory Authority of India Act, 1997 and dismiss the suit as barred in law.
2. The learned counsel for the first defendant even before ordering notice took notice and filed the counter and also filed the application for rejecting the plaint. The learned Senior Counsel for the plaintiffs opted to argue as against the application for rejecting the plaint without filing counter.
3. Heard both sides.
4. The parties are referred to hereunder according to their litigative status and ranking in the suit.
5. The gist and kernel of the case of the plaintiffs as narrated and expatiated, detailed and delineated, by the learned Senior Counsel for the plaintiffs would run thus:
The first plaintiff is a licenceee under the Telecom Regulatory Authority of India Act, 1997 (herein after referred to as TRAI Act) and doing business in broadcasting and telecasting programmes. While so, D1, who is not a licensee or "service provider" within the definitions as in TRAI Act, illegally decoded the signals of the plaintiffs, and thereby indulged in acts of piracy. Hence, he prays for injunction. According to him, the Civil Court has got jurisdiction, because the act of piracy is not a dispute which has to be decided by the Appellate Tribunal constituted under the TRAI Act, but on the other hand, it is the civil Court which has to decide and grant injunction and to that effect, there is a covered judgment of this Court. He would cite the Division Bench judgment of this Court reported in (2009) 4 MLJ 909 [New Galaxy Netcom, represented by its Proprietor, Mr.A.N.Sathyanarayanan v. S.C.V. Represented by its Authaorised Signatory, Mr.J.Rajesh]. Accordingly, he prays for dismissal of the application filed by D1 for rejection of the plaint, but prays for granting injunction as against D1 and also other respondents.
6. Whereas, in an attempt to torpedo and pulverise the arguments on the plaintiffs' side, the learned counsel for the first defendant would put forth and set forth his arguments, the gist and kernel of them would run thus:
(1) The civil Court has got no jurisdiction to entertain the suit, in view of
Sections 15 and
27 of the Telecom Regulatory Authority of India Act, 1997.
(2) Section 9 of CPC clearly bars such filing of suits, as there is a statutory bar for filing civil suits of this nature.
(3) The suit is bad for misjoinder of causes of action and no permission has been obtained under clause 14 of the Letters Patent.
(4) The cited decision of the Division Bench of this Court supra has not taken into consideration the decisions of the Hon'ble Apex Court in letter and spirit. He would place reliance on the following decisions of the Hon'ble Apex Court:
(i) (2007) 7 SCC 517 [Union of India v. Tata Teleservices (Maharashtra) Ltd.], certain excerpts from it would run thus:
"7.
Section 14 of the Act deals with the establishment of TDSAT. It appears to be appropriate to set down the said section hereunder:
"14. Establishment of Appellate Tribunal.- The Central Government shall, by notification, establish an Appellate Tribunal to be known as the Telecom Disputes Settlement and Appellate Tribunal to -
(a) adjudicate ay dispute-
(i) between a licensor and a licensee;
(ii) between two or more service providers;
(iii) between a service provider and a group of consumers: ....
15. The conspectus of the provisions of the Act clearly indicates that disputes between the licensee or licensor, between two or more service providers which takes in the Government and includes a licensee and between a service provider and a group of consumers are within the purview of TDSAT. A plain reading of the relevant provisions of the Act in the light of the Preamble to the Act and the Objects and Reasons for enacting the Act, indicates that disputes between the parties concerned, which would involve significant technical aspects, are to be determined by a specialised tribunal constituted for that purpose. There is also an ouster of jurisdiction of the civil court to entertain any suit or proceedings in respect of any matter which TDSAT is empowered by or under the Act to determine. The civil court also has no jurisdiction to grant an injunction in respect of any action taken or to be taken in pursuance of any power conferred by or under the Act. The constitution of TDSAT itself indicates that it is chaired by a sitting or retired Judge of the Supreme Court or sitting or a retired Chief Justice of the High Court, one of the highest judicial officers in the hierarchy and the members thereof have to be of the cadre of Secretaries to the Government, obviously well experienced in administration and administrative matters."
(ii) (2003) 3 SCC 186 [Cellular Operators Association of India and others v. Union of India and others], an excerpt from it would run thus:
"37. There cannot be any doubt whatsoever that when jurisdiction upon a court or a tribunal is conferred by a statute, the same has to be construed in terms thereof and not otherwise. The power of judicial review of this Court as also of the High Court, however, stand on a different footing. The power of this Court as also the High Court although is of wide amplitude, certain restrictions by way of self-discipline are imposed. Ordinarily, the power of judicial review can be exercised only when illegality, irrationality or impropriety is found in the decision-making process of the authority."
(5) The suit is bad in view of Order 1 Rule 8 of CPC.
(6) Clause 2(n) of the Telecommunication (Broadcasting and Cable Services) Interconnection Regulations, 2004 would evince and evidence that the definition "service provider" as contained therein, is vide enough to include even a cable or distributor of TV channels and in such a case, that definition has been lost sight of by the Hon'ble Division Bench of this Court. While interpreting
<act id=CbGxPokB_szha0nWAdCN section=14>Section 14 </act>of Telecom Regulatory Authority of India Act, 1997, this particular definition as contained in Section 2(n) of the Telecommunication (Broadcasting and Cable Services) Interconnection Regulations, 2004 should be taken into consideration. As such, this Court has to hold that the dispute set out in the plaint comes under
<act id=CbGxPokB_szha0nWAdCN section=14>Section 14 </act>of TRAI Act. Accordingly, he has argued that the Civil Court has got no jurisdiction to entertain this suit.
He would also advance his argument that by misrepresentation and twisting of facts, the applicants have chosen to file the suit and seeking injunction which are not tenable. Accordingly, he prays for the dismissal of the suit as well as the applications.
7. The points for consideration are as to:
(1) Whether the plaint is liable to be rejected under Order 7 Rule 11 CPC for the reasons set out by D1?
(2) Whether the plaintiffs are entitled to obtain injunction as prayed for in view of the reasons as found exemplified in the plaint and affidavit accompanying the application and the typed set of papers?
POINT NO.1:
8. In this factual matrix, I would like to refer to the decision of the Hon'ble single Judge dated 02.04.2008 in A.No.1253 of 2008 in C.S.No.179 of 2008, certain excerpts from it would run thus:
"15. The respondent/plaintiff has a license under The Indian Telegraph Act, 1885. Therefore it is a "licensee" within the meaning of
Section 2(1)(e) of the Act and consequently, a "service provider" within the meaning of
Section 2(1)(j) of the Act. But the applicant/defendant is not a "Licensee". The applicant/defendant does not hold a license issued under Section 4 of The Indian Telegraph Act, 1885. Therefore the applicant is not a "service provider". The applicant/defendant is only a franchisee, who carries the signals of the plaintiff, through its cables, to the end-users viz., consumers. Therefore, the applicant/defendant is not even a consumer.
18. .......The plain language of
Section 2(1)(j) of the Act shows that the Government and a licensee under The Indian Telegraph Act, alone are included within the meaning of the word "service provider".
9. As against the said judgment, OSA was filed and the Division Bench rendered its judgment confirming the judgment of the single Judge referred to supra and virtually that Division Bench judgment is found reported in (2009) 4 MLJ 909 (cited supra). A plain poring over and perusal of the decisions of the learned single Judge and the Division Bench would indicate and demonstrate, display and convey that the facts in that case and the facts involved in this case are almost similar, though not exactly one and the same; as such much of a muchness could be seen.
10. The ratio decidendi as found exemplified in those decisions are applicable to the facts and circumstances of this case. In fact, all the arguments now advanced by the learned counsel for the first defendant were advanced by the learned counsel who appeared in the earlier case for the applicants for rejecting the plaint, but this Court, rejected such arguments. Certain excerpts from the decision of the Division Bench of this Court reported (2009) 4 MLJ 909 (cited supra) would run thus:
"12. It is not in dispute that the respondent has a licence under the Indian Telegraph Act, 1885. Therefore, it is a licensee within the meaning of
Section 2(1)(e) of the Act and, consequently, a service provider within the meaning of
Section 2(1)(j). But, the appellant is neither a licensee under the Indian Telegraph Act, 1885, nor a service provider and he is only a franchisee, who carries the signals of the respondent through its cables to the end-users, namely, consumers. At the same time, it cannot also be said as a consumer. Therefore, the present dispute is not covered by
Section 14 of the Act and it does not fall within the jurisdiction of the Appellate Tribunal.
13. Though the learned counsel for the appellant would submit that the respondent and the appellant would come within the definition of the words "Multi System Operator" and "Cable Operator" respectively under Telecommunication (Broadcasting and Cable Services) Interconnection Regulations 2004, and that Regulation 2(n) defines a "Service Provider" to include a Multi System Operator and Cable operator or distributor of TV channels, we do not agree to the said submission, as the plain language of
Section 2(1)(j) of the Act shows that the Government and a licensee under the Indian Telegraph Act alone are included within the meaning of the word "service provider."
14. As per the Cable Television Networks Rules, 1994, a "Cable Operator" is a person who is licensed under a different enactment by the Superintendent of Post Offices and on being satisfied that the applicant fulfils the provisions of the Ordinance, the registering authority shall issue registration certificate in Form-3. So, the regulations relied upon by the learned counsel for the appellant cannot be imported into
Section 2(1)(j) of the Act."
The Apex Court's judgments cited by the D1's learned counsel, were referred to by the Division Bench of this Court. The Division Bench of this Court clearly and categorically, pellucidly and plainly held that for interpreting
Section 14 of the Telecom Regulatory Authority of India Act, 1997, the definitions as contained in the said Act have to be relied on and nothing else. Hence, it is just and necessary to refer to the said definition as contained in the said Act.
"
Section 2(e) : "broadcaster" means any person including an individual, group of persons, public or body corporate, firm or any organisation or body who/which is providing broadcasting service and includes his/her authorised distribution agencies;
2(j) : "distributor of TV channels" means any person including an individual, group of persons, public or body corporate, firm or any organisation or body re-transmitting TV channels through electromagnetic waves through space intended to be received by general public directly or indirectly. The person may include, but is not limited to a cable operator, direct to home operator, multi-system operator, head ends in the sky operator."
11. Taking into consideration, the definitions as contained in the said Act, this Court rendered its judgment that disputes of this nature would not come within the purview of
<act id=CbGxPokB_szha0nWAdCN section=14>Section 14 </act>of the said Act. For the purpose of interpreting
<act id=CbGxPokB_szha0nWAdCN section=14>Section 14 </act>of the said Act, the definition of "service provider" as contained in Section 2(n) of the Telecommunication (Broadcasting and Cable Services) Interconnection Regulations, 2004 cannot be ushered in, as the said Regulation is different from the Act and nowhere it is contemplated that the definition as contained in the Regulation should be ushered in to interpret the ambit and scope of
<act id=CbGxPokB_szha0nWAdCN section=14>Section 14 </act>of the TRAI Act and consequently, the power of the appellate Tribunal.
12. Incidentally, the learned Senior Counsel for the applicants would also refer to the copy of the order passed by the Telecom Disputes Settlement and Appellate Tribunal, New Delhi dated 30th October 2009 passed in M.A.No.136 of 2009. an excerpt from it would run thus:
" ......The petitioner has itself admitted that it was providing signals in the areas upto 26.10.2009, which were mentioned as unauthorised areas in the notice dated 15.10.2009. In these circumstances, the notice cannot be stayed."
13. Placing reliance on it, the learned Senior Counsel for the plaintiffs would submit that the Organisation, namely JAK Communications Private Limited virtually approached the Tribunal concerned constituted under the Telecommunication (Broadcasting and Cable Services) Interconnection Regulations, 2004 and the authority pointed out that it has got no jurisdiction relating to piracy of the broadcast or telecast and in such a case, it is also found established on the applicants' side, as of now that the Telecom Disputes Settlement and Appellate Tribunal, New Delhi expressed its view that it has got no jurisdiction relating to piracy. Be that as it may, I would like to make it clear that this Court is not carried away by the findings of the Telecom Disputes Settlement and Appellate Tribunal, New Delhi. As this Court being the chartered High Court exercising its original jurisdiction, likes to decide independently relating to the purport of the provisions of the Telecom Regulatory Authority of India Act, 1997 and the said Regulation referred to supra.
14. It is a common or garden principle that the said Act and the definitions contained in the Act are superior and higher to the said Regulation and even if there is any definition having enlarged scope found in the Rules or in the Regulation, that cannot be taken as the guiding factor for interpreting the jurisdiction of Tribunal constituted under the main Act itself. Hence, in the wake of the settled legal proposition and also in view of the fact that already the Division Bench of this Court rendered its judgment rejecting exactly the very same contentions put forth herein on D1's side, I would like to respectfully apply the judgment of the Division Bench of this Court and consequently reject the contentions as put forth on the side of the first defendant.
15. The learned Senior Counsel for the plaintiffs would submit that whenever a party has got any cause of action based on Law of Torts, then it is for the individual aggrieved to approach the Court, unless it is barred. Here to the risk of the repetition and pleonasm, but without being tautologous, I would like to point out that here the main contention of the plaintiffs' is that D1 and others actually indulged in acts of said piracy. When such is the position and correspondingly there is no remedy also contemplated for piracy under the said special legislations, Civil Courts jurisdiction is presumed to be in existence and it cannot be taken as ousted.
16. Regarding scope of Section 9 of CPC, there are catena of decisions which are quite obvious and axiomatic and which do not require to be delineated here, that Civil Court would be reluctant to turn away a litigant seeking justice from its threshold on the ground that it has got no jurisdiction unless there is any express ouster of Civil Court's jurisdiction. No negative approach even at the littlest or molecular extent is contemplated in Section 9 of CPC.
17. At this juncture, I would recollect and call up the following maxims:
1. Expressum facit cessare tacitum : Express mention precludes implication.
2. Expressio unius est exclusio alterius : Express mention of one implies exclusion of others.
3. Generalia specialibus non derogant : General things do not derogate from specific things.
The gist and kernel of those three maxims, is that special excludes the general. When the special law categorically does not contemplate certain disputes like piracy within its ambit and a litigant who is aggrieved by such piracy approached this Court with certain averments, at the threshold itself he cannot be turned out and as such, the purport and object of Section 9 of CPC is for entertaining such suits; A fortiori this suit cannot be dismissed as though this Court is having no jurisdiction.
18. Regarding misjoinder of causes of action, I would like to point out that the suit itself is virtually based on copyright and also the exclusive right of the plaintiffs to do their business with their materials. Here it is not like any other suit based on violation of ordinary copyright; take for instance, a particular book or a particular work has been copied, simulated and emulated illegally by any person, then in that case in a schedule, there could be some reference to it, but here it is the specific case of the plaintiffs that all their programmes are illegally decoded and transmitted or telecast or broadcasted. When such is the position, we cannot expect them to put them in a schedule appended to the plaint as it could be done in an ordinary case which I have referred to supra. All those who indulge in such piracy are cited as defendants and in such a case, there is no question of misjoinder of causes of action per se arises.
19. The learned counsel for D1 also would try to invoke Order 1 Rule 8 of CPC and put forth his argument that the suit falls foul of Order 1 Rule 8 of CPC as the plaintiffs have not adhered to it, for which, the learned Senior Counsel for the plaintiffs' would convincingly argue that the plaintiffs have not filed the suit in their representative capacity and for that matter they have not impleaded any of the defendants to defend the suit in a representative capacity for others. As such, the remedy sought is only a remedy in personam and not a remedy in rem. Whatever order that might be passed by this Court in this matter would be binding only the parties concerned and in such a case, I am of the view that Order 1 Rule 8 of CPC cannot be pressed into service.
Accordingly, the point No.1 is decided to the effect that this Court has got jurisdiction to entertain this suit.
POINT NO.2:
21. The learned counsel for the first defendant inviting the attention of this Court to the various pages of the typed set of papers filed on the side of the plaintiffs as well as the papers submitted on his side would develop and set forth his arguments that based on some imaginary and concocted affidavits as well as versions, the plaintiffs have chosen to approach this Court and they are not entitled to the reliefs sought for. I would like to make it clear that at this stage even before entertaining evidence, this Court relies on affidavits as well as the typed set of papers. During trial, if it is found that any one of the papers which the applicants have submitted, is a concocted or fabricated one, then, certainly they have to face the consequences, and as of now, this Court could look into the papers placed before it and take a decision relating to injunction.
22. The learned counsel for the first defendant would submit that D1 is not at all indulging in piracy and in such a case, based on concocted documents this Court might not be justified in granting injunction.
23. To the risk of the repetition, I would like to reiterate that D1 is having a specific stand that he has not illegally decoded the programmes of the plaintiffs and that he is in no way responsible for such piracy relating to the copy rights as set out in the plaint and petition, if that be so, by this Court granting injunction, D1, would not in any way be prejudiced or affected.
24. A question might arise as to how could a defendant who is allegedly not at all at fault should be made to face or suffer injunction, and for that, my above discussion supra would demonstrate and indicate, that ex facie and prima facie the plaintiffs filed certain documents which would disclose and project such acts of piracy indulged in by D1 and others. The learned counsel for the first defendant would submit that there is no proof to show that a survey as alleged and claimed, has been conducted as per the papers found in the typed set filed by the plaintiffs and also about the identity of the names of the persons found therein. Of course, only during trial, all those facts will come to limelight as to whether the plaintiffs have approached this Court with concocted and fabricated documents or not.
In the result, the point No.2 is decided to the effect that injunction could be granted as against D1 and other defendants and accordingly injunction as prayed for is granted as against D1 until further orders and exparte injunction is granted as against other defendants.
Notice shall be issued to such defendants and the applicants shall comply with Order 39 Rule 3 of CPC concerning those defendants. The application No.5778 of 2009 is dismissed and all other applications be posted on 11.11.2009.
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