' IQBAL HAMEED-UR-REHMAN, C.J.---Compendiously, the facts of the case are that the respondent/plaintiff is a company duly incorporated and existing under the Companies Ordinance, 1984 and the laws of Pakistan in the name and style of Digital Media Solutions Private Limited, with its registered office at 519, F-10/2, Margalla Road, Islamabad and is filing the instant suit through its Company Secretary who is duly authorized through the Board Resolution. The plaintiff through a chain of distributorship agreements recently acquired the sole distributorship rights for Digital Music Content, owned, released, published and licensed by Super Cassettes Industries Limited, company incorporated under the Company Laws of India. The said rights have been granted to the plaintiff by Converge Technologies, Ltd. a company incorporated under the laws of Pakistan, which has been operating in Pakistan previously as a distributor of the T-Series Music Catalogue. It is further added that the defendant is one of the largest telecom companies operating in and existing under the laws of Pakistan, which is licensed by the Pakistan Telecommunication Authority to provide telecommunication services along with other valuable services in the territory of Pakistan. One such value added service provided by the defendant to its Consumers is labeled by the defendant as the Caller Tunes Services. On 1-10-2010, the plaintiff acquired sole distributorship rights, for a term of. 11 months, of T-Series Catalogue for the territory of Pakistan by entering into a content distribution agreement with a content aggregating company by the name of Stark License Management Limited, a, company incorporated under the laws of Cyprus. The distributorship right was further reinforced by the consequent addition made to an earlier content distribution agreement dated 1-9-2010, between Stark License Management Limited and Converge Technologies Private Limited, wherein the plaintiff was nominated and mutually appointed. By both contracting parties as an approved sub-distributor and, therefore, the sole and exclusive copyright holder of the T-Series Music Catalogue for the territory of Pakistan. The plaintiff is responsible for and has the authority to take all measures necessary to protect its copyrights in the T-Series Music.
Catalogue. Thereafter, the plaintiff came across some of its content on the online platforms of the defendant and it came into light that the T-Series Music Catalogue made available for sale on the defendant's online platform was neither being offered for sale under any valid agreement and thus the defendant was liable for the infringement of the plaintiff s copyrights existing over the T-Series Music Catalogue. Till date the defendant has neither removed the said infringing copy of T-Series Music Catalogue nor has shown any willingness to seek authorization from the plaintiff, hence this suit.
2. Now the applicant/defendant has filed the instant application under Order VII, Rule 11, C.P.C. For rejection of plaint mainly on the ground that this suit is unfounded and does not disclose any valid cause of action and the reliefs sought for are barred by law. It is added that the plaintiff/respondent not being the owner of copyright in T-Series Music Content, the plaintiff/respondent has no locus standi or cause of action in this matter. Another contention of the applicant is that the "owner of copyright" is for the purpose of rights and remedies available under the Copyright Ordinance 1962, includes an exclusive licensee" as licensed by the owner of copyright and the respondent/ plaintiff has failed to satisfied as to its locus standi by establishing that it is either the owner or exclusive licensee in respect of the copyrights it claims to have acquired, the instant suit merits dismissal as being not maintainable and having failed to establish a cause of action based on which the respondent is seeking reliefs provided under the special jurisdiction of the Copyright Ordinance, 1962. It is maintained that the agreements placed on record disclose the fact that the respondent has the mere rights to sell and distribute the licensed content, T-Series Music Content in the territory of Pakistan. By the dint of above submissions it is prayed that by accepting the instant application, the plaint may be rejected.
3. The respondent/plaintiff has vehemently opposed the application by filing written reply.
4.
4. Learned counsel for the applicant came up with variety of arguments. According to her this suit is not maintainable as the suit has not been filed by the duly authorized person in accordance with law. Learned counsel after reading para No,1 of the plaint as well as Board Resolution, copy of which appended with the plaint contended that it is not a legal document inasmuch the Directors are admittedly foreigners, no place is mentioned therein and the Directors were also not present in Pakistan at the relevant time. Thus there is a discernible irregularity which cannot be cured. She also contended that another resolution was filed along with reply of present application which being foreign document is not notorized and thus the same has no value and cannot be considered at all; that there is no counter affidavit to the application, therefore, the contents of application are presumed to be true in order to substantiate her contention she has relied upon 2001 M LD 1257.
5. Second attack of learned counsel for the petitioner was that the respondent has no locus stand to file the suit. According to learned counsel special jurisdiction has been invoked under a special law i,e, the Copyright Ordinance, 1962 and in this regard she has relied upon sections 59, 60, 63, 66 and 71 of ibid Ordinance. The gist of the arguments was that the above sections apply only to the owner of copyright which includes exclusive licensee and since the respondent/plaintiff was not owner of copyright, therefore, it has no cause of action and locus standi to file the suit. It is next contended that from the record and the agreements, it manifests that the respondent/plaintiff has the only right to sell and distribute the licensed content, T-Series Music Content in Pakistan, which flow from a chain of agreements and under the, agreement dated 6-8-2010 Hungama Mobile has been identified as the sole licensee of the Licensed Content, T-Series Music Content and who has in turn transferred the said Licensed Content to Converge Technologies Pyt. Ltd. For a limited period on the condition that converges shall not transfer their part of the right to any third party without the prior approval of Hungama Mobile. The plaintiff has filed application before the Copyright Office, Karachi, but the same is still pending and the request has not been granted... In view of above submissions, it is prayed that the plaint be rejected.
6. Per contra, the learned counsel for the respondent/plaintiff contended that the contentions rose by the other side being mixed question of law and fact cannot be decided without recording of evidence. While reading section 39 of Copyright Ordinance, 1962 he stresses that the author or publisher of, or the owner of, or other person interested in the copyright may make application to the copyright office and they have also filed the same. It is further added that the defects in filing of suit are remediable defects and the plaint cannot be rejected due to formal defects. Learned counsel also pointed out that the other side has not referred any law which bars the respondent/plaintiff from filing the instant suit. It further contended that in the instant case issues have already been framed, therefore, the parties must be allowed to lead evidence in support of their respective contentions. According to him for filing of suit the registration of copyright is not necessary and in this regard he has relied upon 2005 CLD 1546.
7. I heard the arguments painstakingly advanced from both the sides and examined the record analytically.
8. The instant application has been filed under Order VII, Rule 11, C.P.C. Before proceeding further it would be instructive to re-produce the provisions of said Order, which run as under:--
11. Rejection of plaint.---The plaint shall be rejected in the following cases:--
(a) where it does not disclose a cause of action;
(b) where the relief claimed is undervalued, and the plaintiff, on being required by the Court to correct the valuation within a time to be fixed by Court, fails to do so;
(c) where the relief claimed is properly valued, but the plaint is written upon paper insufficiently stamped, and the plaintiff, on being required by the Court to supply the requisite stamp-paper within a time to be fixed by the Court, fails to do so;
(d) where the suit appears from the statement in the plaint to be barred by any law.
As regards the resolution and contention that the plaint has not been verified by duly authorized person, the same are formal defects which can be cured subsequent the plaint cannot be rejected on these grounds. In this regard, I am pinning my faith on the case of Shadoo Muhammad Khan v..
Ganmoon (1989 M LD 4624 Lahore), wherein it has been held that "defects in pleadings, application and memorandum of appeal with regard to presentation, signing and verification being technical irregularities relating to matter of procedure which could be rectified at any stage of proceedings, cannot furnish basis for rejection of plaint, application or memorandum of appeal." Reliance is also placed on the case of Soneri Bank Limited v. Classic Denim Mills (Pvt.) Limited (2011 CLD 408, Karachi), wherein it was ruled out that "signing, verification and drafting of plaint in a particular manner were matters of procedure, thus, provisions relating thereto could not be construed strictly."
9. Learned counsel for the applicant has laid much emphasis on non-registration of copyright. This contention cannot be given much weightage as mere failure to get the copyright registered does not invalidate or impair the copyright nor destroys the right to sue for copyright infringement.
Reliance in this regard is placed on Messrs Ferozesons Pvt. Ltd. v. Dr. Col. Retd. K.U. Kureshi (2003 CLD 1052, Lahore). Under the law for the purpose decision of application under Order VII, Rule 11, C.P.C. The facts as alleged in the plaint are to be looked into and nothing extraneous can be seen and where the plaint prima facie discloses a cause of action, the same cannot be rejected. Insofar as the other manifold contentions enlightened by the learned counsel for the applicant i,e, the prayer of plaint, the provisions of Copyright Ordinance, 1962, respondent is neither owner of copyright nor licensee, non-availability of Registration of Copyright, Converge cannot assign, licence or alienate to any third party the licensed content, distribution rights or any other rights granted to it without the prior written approval of Hungama, all these are crucial and substantial questions of facts and law which definitely are to be' adjudicated upon at the trial of the suit, hence cannot be decided without recording of evidence.
10. The prime object and purpose of establishment of Courts is to dispense justice to the parties before it in accordance with law and discourages the adjudication on technicalities. In the instant case, the plaintiff had properly pleaded the cause of action in the plaint and at this stage the contents of the same are admitted to be true. Lack of proof or weakness of proof in the circumstances of case does not furnish any justification for coming to the conclusion that I there was no cause of action or locus standi shown in the plaint. Rejection of plaint on technical grounds, would amount to deprive the respondent/plaintiff from his legitimate right of availing legal remedy.
11. Having adjudged the matter from all angles, an irresistible conclusion can be drawn that the plaint cannot be rejected under Order VII, Rule 11, C.P.C. At this stage. Consequently, the instant application is dismissed; The objections raised shall be decided after recording of evidence.
12. Perusal of order sheet goes to reveal that issues were framed on 2-2-2012, which show that the issues regarding objections taken in the written statement could not be framed in advertently, hence the following additional issues are framed:-- 8-A Whether the suit is not maintainable in view of objections narrated in the written statement?
OPD 8-B Whether the plaintiff has no cause of action and locus standi and the plaint is liable to be rejected under Order VII, Rule 11, C.P.C.? OPD. Main Case.
13. Adjourned to 22-5-2012.