Order 41 rule 22 cannot apply on appeal and writ petition (Successful Party)

Jabalpur Development Authority vs Y.S. Sachan And Ors. on 12 February, 2004

The question that falls for consideration before the Full Bench is framed thus:-

"Under Order 41, Rule 22 of the Code of Civil Procedure there is a specific provision for the filing of cross-objections. These provisions admittedly apply to all appeals filed under Clause 15 of the Letters Patent. So much so, against the judgment rendered by the learned Single Judge upon a first appeal when a Letters Patent Appeal is filed, in that Letters Patent Appeal, cross-objections could be filed by the respondent therein. We fail to see how and when the writ appeal also is filed under Clause 15 of the Letters Patent, the provisions of Order 41, Rule 22, Civil Procedure Code could be excluded, there is no rule in the Writ Proceedings Rules which can be said to be inconsistent with Order 41, Rule 22, Civil Procedure Code. In fact the rules are silent as to whether cross-objections could be filed or not. We may add that the Writ Proceedings Rules by themselves do not provide any remedy. They regulate the proceedings which may be instituted by virtue of some other provisions of substantive law, the writ petitions are filed under Article 226 of the Constitution and the writ appeals are filed under Clause 15 of the Letters Patent. It is to govern these proceedings that the writ proceedings Rules have been framed. This was necessity for the reason that in the Appellate Side Rules, there is no specific provision governing the writ petitions. Moreover, specific procedure had ' to be devised for regulating the petitions filed before this Court on the Original Side invoking the extra-ordinary jurisdiction of the High Court. The rules are procedural rules and do not confer or take away the substantive right of appeal or the right of filing of cross-objections.

On the other hand there is an express provision in Rule 24 that in relation to causes and matters coming up before the High Court on the original side or the appellate side, the provisions of the Code of Civil Procedure will govern. We therefore, fell no hesitation in holding that the writ appeal being a proceeding on the appellate side of the High Court and being a civil proceeding, the provisions of the Code of Civil Procedure would apply and Order 41, Rule 22, Civil Procedure Code which makes, a provision for the filing of cross-objections, would therefore, equally apply to a writ appeal. Consequently, the cross-objection, which in this case is termed as 'cross writ appeal' are maintainable. The mere fact that it has been numbered as an independent writ appeal does not affect to the character of the petition filed by the writ petitioner. The 'cross writ appeal' is accordingly treated as 'cross objections' under Order 41, Rule 22, Civil Procedure Code and the same having been filed before expiry of thirty days of the filing of the main Writ Appeal No. 967/82 no question of limitation arises. In objection as to maintainability of Writ Appeal No. 1093 of 82 is overruled."

Mangala D/O Dinkar Shankar ... vs Laxman Ganpat Jadhav on 19 September, 2007

Para8 “Whenever a party who is successful in getting a decree finds that there is an adverse finding recorded against the said party in the judgment, the said party cannot prefer an appeal challenging the decree. The remedy of such party to challenge those findings is by way of cross objection whenever the other party has filed an appeal challenging the decree. But if the other party has not filed the appeal then in that circumstances such findings cannot be challenged by the party like appellant. In the present matter the respondent-husband has not challenged the decree passed by the Family Court and therefore the objections to the findings as raised by the appellant cannot be entertained even by way of a cross objection or cross appeal. Therefore, we find that the appeal on that ground is not maintainable.”

Union Bank Employees Association vs Union Bank Of India on 6 August, 2001

6. The award of the Central Industrial Tribunal is in favour of the management and there was no occasion or necessity for the management to file a writ petition in this Court. I do not find any substance in the contention of the learned counsel for the petitioners that against the adverse findings given on a particular point though ultimately decision is in favour of the litigant still writ has to be filed. In case where the writ petition would have been filed by the respondent management challenging the finding of the Industrial Tribunal regarding the appointment of Ashok Kumar I have my own reservation whether it could have been admitted by the court. The management could not have filed any cross objection as the provisions of Code of the Civil Procedure are not applicable in the proceedings under Article 226 of the Constitution.

Keshab Narayan Banerjee vs Commissioner Of Income-Tax And ... on 28 August, 1998

“8. Sub-rule (1) of Rule 22 of Order 41, Civil Procedure Code, reads as under ;

"Any respondent, though he may not have appealed from any part of the decree, may not only support the decree but may also state that the finding against him in the court below in respect of any issue ought to have been in his favour; and may also take any cross-objection to the decree which he could have taken by way of appeal, provided he has filed such objection in the appellate court within one month from the date of service on him or his pleader of notice of the day fixed for hearing the appeal, or within such further time as the appellate court may see fit to allow."

9. Proceedings in a writ application filed under Article 226 of the Constitution and an appeal arising therefrom under Clause 15 of the Letters Patent strictly would not be civil proceedings in the sense that technically they are not governed by the provisions of the Code of Civil Procedure, yet they being in the nature of civil proceedings, the principles contained in Order 41, Rule 22 of the Civil Procedure Code, should apply in all Letters Patent appeals. After all a respondent who was partly successful in the writ proceedings should clearly decide whether to appeal against the unsuccessful part of the judgment of the learned single judge or to agitate in the appeal court the finding which may go against him. Such a partly successful respondent, therefore, can prefer its own appeal against that part of the judgment which goes against it or may, in the appeal of the writ petitioner decide to file cross-objection(s) in respect of the findings which have gone against him. If he does neither, it is still open to him to take recourse to the provision contained in Rule 22(1) of Order 41, Civil Procedure Code, and urge the court hearing the appeal that the finding against him by the learned single judge in respect of an issue ought to have been in his favour. This is the limited right made available under the amended Rule 22(1). This right, however, has to be exercised with clear limitation and a contingent condition that the ultimate result of the appeal shall not amount to upset the judgment of the learned single judge in so far as the nature and extent of the relief granted to the writ petitioner (appellant in the Letters Patent appeal) is concerned. A person, the respondent in the writ application, who does not choose to file appeal against the judgment of the learned single judge, even though a substantial part of such judgment goes against him, nor does he choose to file cross-objections in the appeal filed by the writ petitioner, cannot be permitted to urge the court to set at naught even that relief which was partially given to the writ petitioner by the learned single judge. Subject to such limitation and contingent condition, such a respondent may be allowed to assail a finding on an issue returned by the learned single judge which went against him. In the present case, as noticed, the Revenue has neither filed any appeal against the judgment of the learned single judge nor did it file any cross-objections in the appeal filed by the petitioner and yet it wanted to challenge the aforesaid two findings regarding the mode of service based on "refusal" and "affixation". If the respondent is allowed to challenge these two findings, or even one of them, and if the challenge is successful, the result would be that in the appeal we shall have to hold that the service of notice by "refusal mode" or "affixation mode", as the case may be, or by both of them was proper, and, if once we take that view, even the limited relief given by the learned single judge to the appellants would have to be set aside. The net result, therefore, would be that the appellant who filed the appeal against the part of the relief which was not given to him by the learned single judge would be deprived of even that part which was given to him, only because he came up in appeal against the unsuccessful part, even though the respondent did not prefer any appeal against any part of the judgment, successful or otherwise. We have no hesitation to hold that such a course of action, from the interpretation of Rule 22(1) is not permissible. We, therefore, did not permit Mr. Prasad to challenge these two findings under Rule 22(1). These two findings, therefore, in our view, have assumed finality and cannot be upset or disturbed by us in this appeal.”

S.K. Awasthy vs M.R. Bhope, Presiding Officer, ... on 29 January, 1993

The learned Counsel for Respondent No. 2 invited the attention of the Court to the provisions contained in Order 41, Rule 22 and Order 41, Rule 33 of the Code of Civil Procedure as and by way of analogy. Order 41, Rule 33, Code of Civil Procedure empowers the appellate Court to pass any order it deems fit even though the appeal is filed against part of the decree and no cross appeal or cross objections are filed by the respondents as more particularly set out therein. In my opinion, Order 41, Rule 33 or Order 41, Rule 22 of the Code of Civil Procedure cannot be applied to a writ petition by analogy. A writ petition is not an appeal. The jurisdiction and powers of Writ Court shall have to be ascertained independently of Order 41, Rule 22 or Order 41, Rule 33 of the Code of Civil Procedure. In one sense, powers of writ Court are wider and in another sense narrower.

Declaration on Free Access to Law

In October 2002 the meeting of LIIs in Montreal at the 4th Law via Internet Conference, made the following declaration as a joint statement of their philosophy of access to law. There were some further modifications of the Declaration at the Sydney meeting of LIIs in 2003 and at the Paris meeting in 2004.

Legal information institutes of the world, meeting in Montreal, declare that,

· Public legal information from all countries and international institutions is part of the common heritage of humanity. Maximising access to this information promotes justice and the rule of law;

· Public legal information is digital common property and should be accessible to all on a non-profit basis and free of charge;

· Independent non-profit organisations have the right to publish public legal information and the government bodies that create or control that information should provide access to it so that it can be published.

Public legal information means legal information produced by public bodies that have a duty to produce law and make it public. It includes primary sources of law, such as legislation, case law and treaties, as well as various secondary (interpretative) public sources, such as reports on preparatory work and law reform, and resulting from boards of inquiry. It also includes legal documents created as a result of public funding.

A legal information institute,

· Publishes via the internet public legal information originating from more than one public body;

· Provides free, full and anonymous public access to that information;

. Does not impede others from publishing public legal information; and

· Supports the objectives set out in this Declaration.

All legal information institutes are encouraged to participate in regional or global free access to law networks.

Therefore, the legal information institutes agree,

· To promote and support free access to public legal information throughout the world, principally via the Internet;

· To cooperate in order to achieve these goals and, in particular, to assist organisations in developing countries to achieve these goals, recognising the reciprocal advantages that all obtain from access to each other's law;

· To help each other and to support, within their means, other organisations that share these goals with respect to,

o Promotion, to governments and other organisations, of public policy conducive to the accessibility of public legal information;

o Technical assistance, advice and training;

o Development of open technical standards;

o Academic exchange of research results.

· To meet at least annually, and to invite other organisations who are legal information institutes to subscribe to this declaration and join those meetings, according to procedures to be established by the parties to this Declaration.

· To provide to the end users of public legal information clear information concerning any conditions of re-use of that information, where this is feasible.

Access to Legal information in India

There are three broad pillars of Indian democracy: the legislatures who make laws, the executives who enforce laws and the judiciary that interprets laws. The laws regulate a number of activities like criminal offense, civil cases, taxation, trade, social welfare, education and labour rights.

A number of attempts have been made to bring the knowledge of law to the common people. The Government of India took active efforts to present all laws along with their amendments at indiacode.nic.in and all court judgments at judis.nic.in. Similar efforts have been taken up by other privately owned websites.  While it is commendable to make law documents available to common people, it is still quite difficult for common people to easily find the required information.

The first problem is that acts are very large and in most scenarios just a few section of laws are applicable. Finding most applicable sections from hundreds of pages of law documents is too daunting for common people.

Secondly, laws are often vague and one needs to see how they have been interpreted by the judicial courts. Currently, the laws and judgments are separately maintained and to find judgments that interpret certain law clauses is difficult. This is one of the reasons that the private individuals have taken initiatives to publish legal information on internet.

Now the problem arises when the legal information is published on to the internet by an individual, they claim to have copyright of that literary work and also its scenario under Information Technology Act.

Indian Scenario

Copyright and judicial information

It is very important to know certain details about copyrights before analyzing the topic in hand which is copyright in judgments.

Meaning of copyright

"copyright" means the exclusive right subject to the provisions of this Act, to do or authorize the doing of any of the following acts in respect of a work or any substantial part thereof, namely:-
(a) in the case of a literary, dramatic or musical work, not being a computer programme, -
            (i) to reproduce the work in any material form including the storing of it in any                  medium by electronic means;
            (ii) to issue copies of the work to the public not being copies already in   circulation;
            (iii) to perform the work in public, or communicate it to the public;
            (iv) to make any cinematograph film or sound recording in respect of the work;
            (v) to make any translation of the work;
            (vi) to make any adaptation of the work;
            (vii) to do, in relation to a translation or an adaptation of the work, any of the       acts specified in relation to the work in sub-clauses (i) to (vi);
                                    (b) in the case of a computer programme,-
                                    (i) to do any of the acts specified in clause (a);

Copyright shall not subsist –

SECTION 52

Sub Section 1(c) the reproduction of a literary, dramatic, musical or artistic work for the purpose of a judicial proceeding or for the purpose of a report of a judicial proceeding;

Sub section 1(d) the reproduction or publication of a literary, dramatic, musical or artistic work in any work prepared by the Secretariat of a Legislature or, where the Legislature consists of two Houses, by the Secretariat of either House of the Legislature, exclusively for the use of the members of that Legislature;

The most important and relevant being the case of Eastern Book Company and Ors vs D.B Modak and Anr

In this case Appellant No. 1 - Eastern Book Company is a registered partnership firm carrying on the business of publishing law books. Appellant No. 2 - EBC Publishing Pvt. Ltd. is a company incorporated and existing under the Companies Act, 1956. The said appellants are involved in the printing and publishing of various books relating to the field of law. One of the well-known publications of appellant No. 1 - Eastern Book Company is the law report "Supreme Court Cases" (hereinafter called "SCC").

Headnotes are prepared by appellant No. 3-Surendra Malik. As per the said appellant (plaintiff No. 3 in the suits filed in the Delhi High Court), the preparation of the headnotes and putting the various inputs in the raw text of the judgments and orders received from the Supreme Court Registry require considerable amount of skill, labour and expertise and for the said work a substantial amount of capital expenditure on the infrastructure, such as office, equipment, computers and for maintaining extensive library, besides recurring expenditure on both the management of human resources and infrastructural maintenance, is made by the plaintiff-appellants. As per the appellants, SCC was a law report which carried case reports comprising of the appellants' version or presentation of those judgments and orders of' the Supreme Court after putting various inputs in the raw text and it constituted an 'original literary work' of the appellants in which copyright subsisted under Section 13 of the Copyright Act, 1957 and thus the appellants alone had the exclusive right to make printed as well as electronic copies of the same under Section 14 of the Act. Any scanning or copying or reproduction done of or from the reports or pages or paragraphs or portions of any volume of SCC by any other person, was an infringement of the copyright in SCC within the meaning of Section 51 of the Act.

The defendant-respondent No. 2 Spectrum Business Support Ltd. (in Civil. Appeal No. 6472/2004) has brought out a software called "Grand Juriy" published on CD-ROMs and the defendant-respondent No. 2 Regent Data Tech Pvt. Ltd. (in Civil Appeal No. 6905/2004) brought out software package called "The Laws" published on CD-ROMS. As per the appellants, all the modules in the defendant-respondents' software packages had been lifted verbatim from the appellants' work; the respondents had copied the appellants' sequencing, selection and arrangement of the cases coupled with the entire text of copy-edited judgments as published in the plaintiff-appellants' law report SCC, along with and including the style and formatting, the copy-editing paragraph numbers, footnote numbers, cross-references, etc.; and such acts of the defendant-respondents constitute infringement of the plaintiff-appellants' exclusive right to the same.

It was held in the case that the reports in the Supreme Court Cases (SCC) of the judgments of the Supreme Court are a derivative work in public domain. By virtue of Section 52(1) of the Act, it is expressly provided that certain acts enumerated therein shall not constitute an infringement of copyright. Sub-clause (iv) of Clause (q) of Section 52(1) excludes the reproduction or publication of any judgment or order of a Court, Tribunal or other judicial authority, unless the reproduction or publication of such judgment or order is prohibited by the Court, the Tribunal or ocher judicial authority from copyright. The judicial pronouncements of the Apex Court would be in the public domain and its reproduction or publication would not infringe the copyright. That being the position, the copy-edited judgments would not satisfy the copyright merely by establishing amount of skill, labor and capital put in the inputs of the copy-edited judgments and the original or innovative thoughts for the creativity are completely excluded.

Accordingly, original or innovative thoughts are necessary to establish copyright in the author's work. The principle where there is common source the person relying on it must prove that he actually went to the common source from where he borrowed the material, employing his own skill, labour and brain and he did not copy, would not apply to the judgments of the courts because there is no copyright in the judgments of the court, unless so made by the court itself. To secure a copyright for the judgments delivered by the court, it is necessary that the labour, skill and capital invested should be sufficient to communicate or impart to the judgment printed in SCC some quality or character which the original judgment does not possess and which differentiates the original judgment from the printed one. The Copyright Act is not concerned with the original idea but with the expression of thought. Copyright has nothing to do with originality or literary merit. Copyrighted material is that what is created by the author by his own skill, labor and investment of capital, maybe it is a derivative work which gives a flavor of creativity. The copyright work which comes into being should be original in the sense that by virtue of selection, co-ordination or arrangement of pre-existing data contained in the work, a work somewhat different in character is produced by the author.

For the reasons stated above, the appeals were partly allowed. The High Court did grant interim relief to the plaintiff-appellants by directing that though the respondent-defendants shall be entitled to sell their CD-ROMS with the text of the judgments of the Supreme Court along with their own head notes, editorial notes, if any, they should not in any way copy the head notes of the plaintiff-appellants; and that the defendant-respondents shall also not copy the footnotes and editorial notes appearing in the journal of the plaintiff-appellants.

Interplay between Public Domain, Freedom of Expression and Copyright

“The general rule of law is, that the noblest of human productions—knowledge, truths ascertained, conceptions, and ideas—become, after voluntary communication to others, free as the air to common use”

The freedom speech and expression does not only protect freedom of ideas but also the form in which it is expressed.  But Copyright law curtails this freedom of expression.

Freedom of Speech and Expression

•       Right to receive information

•       Right to disseminate information

Justifications for copyright being beyond the purview of Article 19(1)(a) of the Constitution a reasonable restriction under Article 19(2)

•       Economic incentive vis-à-vis promotes free speech and production

•       Right to steal is not included within the freedom of speech and expression

The Idea/Expression Dichotomy

1.     ‘original’ u/s 13 of the Copyright Act, 1957:

Copyright shall subsist throughout India in the following classes of works, that is to say,-

(a) Original literary, dramatic, musical and artistic works;

(b) Cinematograph films; and

(c) Sound recordings;

2.     Sweat of the brow: conferring copyright on works merely because time, energy, skill and labour was expended, that is, originality of skill and labour

3.     Modicum of creativity: in the sense that by virtue of selection, co-ordination or arrangement of pre-existing data contained in the work, a work somewhat  different in character is produced by the author”. - Eastern Book Company v. DB Modak

The Supreme Court too recognized this shift and in Eastern Book Company v. DB Modak (supra), following the approach laid down by the Canadian Supreme Court in CCH Canadian Ltd., Vs. Law Society of Upper Canada (2004) SCC 13, rejected the sweat of the brow doctrine, (which conferred copyright on works merely because time, energy, skill and labour was expended, that is, originality of skill and labour), and held that the work must be original ?in the sense that by virtue of selection, co-ordination or arrangement of pre-existing data contained in the work, a work somewhat different in character is produced by the author?. It is noteworthy that our Supreme Court noticed that the two positions i.e. the sweat of the brow on the one hand, and ?modicum of creativity? were extreme positions; it preferred a higher threshold than the doctrine of ?sweat of the brow? but not as high as ?modicum of creativity?. Thus, our law too has recognized the shift, and mandates that not every effort or industry, or expending of skill, results in copyrightable work, but only those which create works that are somewhat different in character, involve some intellectual effort, and involve a certain degree of creativity. It is in the light of this standard of originality, that the plaintiffs claim to copyright in the questions as well the copyright in the arrangement of the exercises in each chapter and the internal arrangement of questions therein, needs closer scrutiny.

Eastern Book company v Navin J.Desai, the question involved was whether there is any copyright in the reporting of the judgment of a court. The Delhi High court observed: It is not denied that under section 2(k) of the Copyright Act, a work which is made or published under the direction or control of any Court, tribunal or other judicial authority in India is a Government work. Under section 52(q), the reproduction or publication of any judgment or order of a court, tribunal or other judicial authority shall not constitute infringement of copyright of the government in these works. It is thus clear that it is open to everybody to reproduce and publish the government work including the judgment/ order of a court. However, in case, a person by extensive reading, careful study and comparison and with the exercise of taste and judgment has made certain comments about judgment or has written a commentary thereon, may be such a comment and commentary is entitled to protection under the Copyright Act”.

The court further observed: “In terms of section 52(1)(q) of the Act, reproduction of a judgment of the court is an exception to the infringement of the Copyright. The orders and judgments of the court are in the public domain and anyone can publish them. Not only that being a Government work, no copyright exists in these orders and judgments. No one can claim copyright in these judgments and orders of the court merely on the ground that he had first published them in his book. Changes consisting of elimination, changes of spelling, elimination or addition of quotations and corrections of typographical mistakes are trivial and hence no copyright exists therein.